text:
    *Martha Hubbell v. Administrators and Heirs of Samuel Broadwell et al.
    Where the mortgagee purchases the mortgaged premises, under judicial proceedings, and continues to own them until such judicial proceedings are reversed, the mortgagor is entitled to his right of redemption.
    This is a suit in chancery to redeem a mortgage, reserved for decision, from the Supreme Court of Hamilton county.
    The bill states that in 1819 she united with her husband in mortgaging to Samuel Broadwell, the defendants’ intestate, certain lands lying in Cincinnati, which she held by descent from, her father. A copy of the deed is made an exhibit, appended to the bill, and she submits if its form is available to convey her estate. Proceedings in scire facias were had upon this mortgage, and in 1825 a judgment was obtained by default, and the mortgaged tenements purchased by Broadwell at sheriff’s sale. The record-of these proceedings is made a part of this bill, and the plaintiff insists that no valid service was made upon her, and that she was not a party. She therefore prays if the court hold the mortgage deed binding upon her, that she may be admitted to redeem the land in the hands of the representatives of Broadwell and of Sevier, who purchased with notice.
    A supplemental bill avers that in 1833 the judgment in the scire facias was reversed on error since filling the original bill.
    The acknowledgment of the deed is as follows : “Stale of Ohio, Hamilton county, ss. Before me, the undersigned, a justice of the peace, came Gabriel Hubbell, and Martha, his. wife, who being made acquainted with the contents, and being examined separate and apart, acknowledged the above,” etc.

      The service of the scire facias is by the following" indorsement upon it: “We hereby severally acknowledge service of the within writ, waiving all error as to the form of service thereof.
    (Signed,) “ Gr. IIubbell,
    Martha Hubbell.”
    To this the sheriff added as follows : “Scire feci, as per acknowledgment on the back thereof.” Signed by the sheriff.
    The defendants demur.
    Fox, for defendants:
    The only question to be decided in the cause is, whether, after the reversal of a j udgment of scire facias on a mortgage, the title to the property sold on said mortgage, can be affected by the reversal of the judgment?
    *1 suppose this question is decided by section 22 of the act -regulating judgments and executions, which declares that if any judgment shall be reversed, “ such reversal shall not affect or defeat the title to the purchaser or purchasers; ” and section 37 of the chancery practice act declares, that “the decree of either of the said courts, sitting as a court of chancery shall, from the time of their being pronounced, have the force, operation, and effect of a judgment at law.”
    These sections, I suppose, are decisive of the question, and such has been the construction put upon the statute by this court.
    The purchaser, whoever he may be, is secure in his title against any errors of the court rendering the decree. No distinction is made, none ought to be made, as to the character of the purchaser. The object of the statute is to give credit to judicial sales; all the purchaser has to look to, is to see that the court had jurisdiction •of the parties, and had rendered a judgment in the cause.
    The object of the statute is to invite purchasers to bid,, so as to insure competition. There is as much reason for encouraging the judgment-creditor to bid as any other person. It is the interest of the debtor to leave the whole field of competition open; that •can not be done by making the purchase of the judgment-creditor more precarious than that of any other purchaser.
    Our statute on this subject is only confirmatory of the settled practice in chancery where no such statute exists. 9 Ves. jr. 63-65; 12 Ib. 101-103; 2 Sch. & Lef. 578; 2 Caine’s Cas. 262.
    It was the same in sales of personal property on executions at law, the reversal of the jugment never affected the title to the goods.
    Since writing the foregoing, I have read Mr. Wright’s argument. The positions he assumes are; 1. The original judgment on the scire facias was void; 2. Tl^at after the judgment was reversed, a. right of action accrued in favor of Mrs. Hubbell, and consequently the mortgagee would have a right, in equity, to hold the land as a security for the original debt, and the mortgagee having this lien, it follows, as a matter of course, that a reciprocal right exists in the mortgagor to redeem.
    As to the first position, I have only to remark, that whether the service was defective or not, is immaterial; the service was made by an officer competent to make it, and being in fact made, an irregularity of service could only be taken advantage of at the ^appearance term. . There being no objection made to the service at the proper time, the law presumes the objection was waived, and the judgment remains good.
    The right of Mrs. Hubbell to redeem, must depend upon the effect of the reversal of the judgment after Hubbell’s death. For surely it can not be pretended that, so long as the judgment remained in force, a right of redemption existed. That judgment,, while in force, was a bar to foreclosure by express statute. The statute also declares, that the property sold on a judgment shall not be affected by the reversal of that judgment. But Mr. Wright appears to think that there are special circumstances attending this case that will enable the court to wink at the statute, or avoid it. I see no possible way in which this court can permit the complainant to redeem, unless by a virtual repeal of the statute referred to. As to the reversal of a decree of foreclosure reviving the right to redeem in England, it can not affect the case. And another answer is readily given, which is, that the chancellor in England will always open a decree of foreclosure at almost any period of time. So if the party sues on the bond at law, the foreclosure is by that act opened. But no case can be found in England, where the reversal of a decree for the sale of mortgaged premises, affects a sale made while the decree was in force.
    I perceive no difficulty to the setting off a debt to a claim on a scire facias on a mortgage. This court held such a debt could be set off to the extent of the amount due on the mortgage, in the case of Piatt v. St. Clair.

      Wright and Hodges, for complainant:
    1. The complainant insists, in the first place, that her estate in the land is not bound by the mortgage ; nor by the judgment in. scire facias thereon.
    The mortgage is made an exhibit in the bill, and it is submitted, to the court, without argument, whether it is so executed as to bind the wife’s estate.
    The bill avers, that in the scire facias suit there was no legal-service on the present complainant, and there was no appearance by herself or husband. The facts in" detail are, that there was indorsed on the writ of scire facias as follows : “ We hereby severally acknowledge service of the within writ, waiving all error as to the form of service thereof. G-. Hubbell, Martha *Hub-bell.” To which the sheriff added his return, “ scire feci, as per acknowledgment on the back hereof.” The judgment was entered by default without appearance.
    The law required the service to be made in the presence of two-freeholders in special form. We insist that a married woman, being not competent to make any agreement, can not acknowledge-service, and this must stand as no service at all; and the judgment being without service of process, as to the wife, must stand as no judgment against her. If so, it can not operate to prejudice her right to redeem.
    2. In the second place, if the complainant’s estate is bound by the mortgage and judgment, then she insists that the land shall be sold to satisfy the mortgage debt, or that she shall be let in to-redeem, after ascertaining the amount due on the mortgage.
    Wre claim this under the peculiar nature and effect of the proceedings in scire facias, and the circumstances of this case. Had the land been sold by Samuel Broadwell, I suppose we could not reach it; but while it remains in the hands of the mortgagee, I contend that the same equity remains between him and the mortgagor as before the sale under the scire facias. This arises from the necessary operation of proceedings in scire facias, under our old law.
    After the sheriff’s sale under the scire facias, proceedings at law against the land are exhausted; if the judgment be then reversed, the suit can not be remanded for further proceedings, because further proceedings could only result in an award of execution to sell the land, and this is already done. The defendant then brings his; suit to recover back the money, and a recovery is matter of .course, on the reversal of the judgment. At this stage of the pro- • ceedings, what are the equitable rights of the mortgagee? If the debt is really due to him, he ought not to be compelled to pay back the money to the mortgagor. In some cases, where there is .no separate obligation, and no covenant for payment of the money in the mortgage, there can be no recourse against the person of ■the mortgagor, and then the mortgagee loses his debt utterly. But if there is personal recourse against the mortgagor, still the mort.gagee ought no.t to be driven to that personal recourse only, and be deprived of the benefit of the special security of the land, or •the proceeds of it. It is clearly the justice of the case, that the .mortgagee should retain his security, after the reversal of the judgment. The land has been specifically pledged, and no act of the court, no casualty, ought to destroy *bhe hold on that security, as between the original parties. If the land is gone, the .fund itself should be laid hold of, in place of the land out of which it proceeded. Suppose a contrary principle to bo adopted; the •land has been sold under the scire facias for its full value, the amount credited on the scire facias judgment, and then the judgment is reversed, and the mortgagor recovers back the money and .■becomes insolvent; or he has*previously become insolvent, and has assigned the claim, and his suit is prosecuted for the use of the assignee; or, as in the present case, the wife, to whom the land belongs, and who, of course, can alone recover the money, is ■.not liable for the mortgage debt; in all those cases the mortgagee loses his debt totally, unless some principle of equity be established securing to him the benefit of his lien as it stood before the scire facias sale. «
    It has been argued that the mortgagee may set off liis mortgage debt against the scire facias for restoration of the money, and thus obtain a benefit equivalent to his original security; but the difficulty arises of making a set-off at all, in such case. I have understood the decisions of our courts to be that our statute does not allow a set-off in such a scire facias. But suppose it did, it is •obvious, from the cases supposed above, arid others that might be .suggested, that the set-off would not be a general remedy; in many cases it could not apply; there must, therefore, be some principle of equity which will do justice in all cases. What is ¿this principle of equity ? I hold it to be the following : After the sale on the scire facias, the equity of' the mortgagee is, that he-should still retain security for his debt; he can not retain the security, unless by still treating his claim as the original mortgage debt: if so treated, the mortgagor has still the right to'redeem; if one side has the equitable right to be secured out of the pledge' or its proceeds, the other must have an equal right to redeem the pledge; so long as the idea of a debt and a pledge remain, the-idea of redemption must remain; and these rights grow out of the original relations of the mortgagor and mortgagee, and attach on the original debt with its rights and incidents. These are clearly the equitable rights as between the mortgagor and mortgagee personally. So long as the land remains in the hands of the mortgagee, these equities attach on the land itself; if the mortgagee has sold the land, these equities are defeated by the paramount legal rights of the grantee; but as between the original parties, whatever is equity between them, in relation to the land, is equity as against the land; and the consequence *must be that the mortgagor has a right to redeem the land by paying the debt.
    Is there anything in our statute interfering with such a principle of equity ? The statute provides that a reversal shall not “affect or defeat” the title made by the sheriff. On the grounds-which I assume, I do not conflict with this provision ; the title remains unimpeachable at law, a valid legal title ; still, such personal equities arise out of the special circumstances in relation to the land, that this court may decree it sold or redeemed to satisfy those-equities.
    To test this case, let us transpose the parties; suppose the mortgagee was seeking to avoid paying back the money, in a case where certainly he could not defend himself by set-off, what relief could, equity give him? They certainly could not enjoin the suit when it was prosecuted by or for one not liable for the mortgage debt; and what other possible equity could the mortgagee allege ? Surely none but the equitable right to have the debt still satisfied out of the land; he can not set up the debt against the mortgagor personally, so as to be available for his protection; and the only other alternative is to set it up against the land, and this he can do only as a mortgage debt against the land. If he hold the land and pays-back the money, he gets nothing toward payment of the debt; and still, if I mortgage my land for another man’s debt, that debt ought, to bo made out of the land. After reversal of a judgment, the gen■erat principle is, that the .parties should stand in the same situation as before the judgment. Their rights stand unadjudieated, but still unprejudiced, so far as may be without affecting the rights of third persons, acquired on the faith of the judgment. The judgment being reversed, the existence of any debt is unknown to the ■court, because unascertained. Suppose it should turn out, on investigation, that no debt whatever was due to the mortgagee. Can it be doubted that the land ought, in equity, to be restored to the mortgagor as against the mortgagee ? And this is prima fade, the >situation of every such case before the court, after reversal, until the existence of a debt is judicially ascertained.
    If the mortgagee has an equity to have his debt secured to him ■cut of the land after the reversal, the mortgagor must of course have the reciprocal right to redeem.
    Under the English equity practice of a technical foreclosure, a ■reversal of the decree would of course open the foreclosure; and many other acts of the mortgagee have that effect, such as suing on *the bond, etc. But if the mortgagee had sold the property after the decree of foreclosure, the title of his vendee remained perfect and absolute, and not affected .by anything which would ■otherwise have opened the foreclosure. 3 Pow. Mort. 1006.
    There are various cases where a distinction is made between ■cases when a party to the suit is purchaser, and when a stranger is purchaser after judgment reversed, protecting the stranger but not the party. These, however, are not decisive authority, because it is here a statutory matter. The right to redeem arises from the position in which the statutory proceeding leaves the parties after reversal. The debt, if one exists, must be regarded not merely as a debt, but a mortgage debt, entitled to a special privilege against the proceeds of the property, and it can not be so regarded without .■allowing the right of redemption.
    In the present case, Mrs. Hubbell is clearly not liable for the mortgage debt. The mortgage, if valid against her, can have no •other effect than merely to bind her land for the amount due when that shall be ascertained. The judgment being reversed, she has a clear right to have restitution of the money made out of her prop■erty, by virtue of the reversed judgment. Against this right to restitution, the administrators of Buo.adwell can not set up, by way of set-off, a debt due them from her deceased husband. That is no ■debt of hers. The only defense they can make must be to file their bill in equity, and allege that they had a lien on her land, of which they ought, in good conscience, to have the benefit. Let it be especially noted that their lien on the land is the only foundation they can allege for their equity. Now can it for a moment be admitted that while they hold the title of the land and insist on retaining the entire title, they can set up a mere lien upon it in equity, as a bar against restitution of the money? The lien can give them no further equity than to have the debt satisfied out of the thing bound by it. So long, therefore, as they hold the land, and it remains in the power of the court to give them the ordinary remedy, that is, to sell so much of the thing pledged as will satisfy the debt, they can not ask any other relief. If they are entitled to such relief, it must be on a principle of equity, of which either party may claim the benefit in the first instance. This principle is simply that,.in equity, all the defendants’ right in the land is their lien for their debt; and this debt wc must have a right to compel them to take, and leave to us the residue of the land. If this be not the equity between the parties, then we must have a restitution of the money at law; the defendants *hold the lands of Mrs. Hub-bell and must look to the insolvent estate of her husband for their mortgage debt, if they have any. 1 If the land had greatly depreciated in value, this would seem to them a very hard case, and probably would quicken their perceptions of the equity of the positions we maintain.
   Judge Lane

delivered the opinion of the court:

The acknowledgment of the deed, although slovenly, is well enough. It admits no sensible interpretation, except that which shows the essential requisites of the law were complied with.

It is not intended now to decide, whether a judgment, against a married woman, entered upon her written acknowledgment of ■service, and agreement to waive error, be void or voidable. The reversal of the judgment in scire facias renders it unnecessary at this time.

The demurrant principally relies upon,the new rights, acquired by the sale. Without denying that the judgment of restitution on the reversal, restores the plaintiff, in most respects, to her original situation, he insists that the act regulating judgments and •executions, 29 Stat. 107, sec. 22, which declares that the reversal of a judgment shall not the affect the title of a purchaser, protect» his title to the lands upon him. It is the settled policy of the-court to protect judicial sales. Where lands have passed, by a sale ■under execution, to a stranger to the judgment, the statute compels the owner of the land, on reversal, to pursue the fruits of the sale, in the hands of his antagonist. But when a party to the judgment purchases and continues to hold, this rule does not apply with the same force. The purchaser is a party to the errors, and it seems most consonant with justice to restore the land itself to its original owner, where it remains between the original parties, and within reach of the court, no new rights intervening. 3 Pow. Mort. 1006. In the present case, where the right of redemption is restored by the reversal, it seems just to attach it to the lands, to' which it was originally annexed, rather than to the ideal money produced by the sale.

Decree permitting redemption of lands, in the hands of Broad-well’s heirs.


source: Caselaw Access Project

author: Judge G-rimke

license: Public Domain

text:
    *Lessee of Jer. Armstrong v. John McCoy.
    Where there has been a sale of real estate upon execution, and an order for a-deed, these proceedings lay the foundation to admit parol testimony that a deed was executed and delivered.
    Where a sheriffs deed recites so much of the executions and other proceedings, as shows a clear and undoubted authority for its execution, such recitals are sufficient.
    This cause was adjourned from the county of Franklin, it was an ejectment, to be determined upon proofs involving naked questions of fact and law.
    The plaintiff laid two demises and claimed under two distinct, chains of title, derived from two different sources, both of which were judgments and executions against the same defendant.
    The first chain of title was deduced from a judgment, Westv. McCoy, in Franklin county. The proof consisted of the judgment, execution, levy, sale, confirmation, and the order that the deed to the purchaser be made, with the deposition of the person who ■officiated as sheriff, in making the sale, to this effect.
    “That in executing deeds, as sheriff, it was his uniform habit to have such deeds acknowledged and attested by two witnesses; that, in this case, he has no doubt that a paper purporting to be a deed, was given to the purchaser, and none, that the deed was properly acknowledged and witnessed. The witness had an impression that it was in his own store that he delivered the deed to the purchaser.”
    The purchaser was James Conger. The proof farther showed that McCoy, whose title Conger purchased, had been in possession many years, perhaps twenty or more. That soon after the sheriff’s sale, Conger went into possession, and held it two or three years. That, in the spring of 1834, Conger ran away and abandoned the possession, upon which McCoy again entered into it, and continued to hold.
    The second, or continuous chain of title, was founded upon a judgment against Conger, execution upon which was levied on the land in question, McCoy being in possession, at the time of the levy. A sale on the execution and levy was perfected, and C. Eox became the purchaser. In making the deed to Pox, the sheriff failed to recite all the writs of execution,- that had issued as the foundation of the sale. After issue joined, on. this fact, a second deed was made to Eox,'containing .these recitals. Eox had conveyed to the lessor of the plaintiff.
    Wilcox, for the plaintiff:
    The proofs are believed to be sufficient prima facie evidence of the existence of the sheriff’s deed to Conger. The proof *might be more conclusive, were it not left to inference that McCojq soon after Conger left the country, for the first time discovered that the deed was not on record, and therefore, he retook the possession.
    It is a presumption of law, that every officer does his duty.
    The non-recital of the executions does not vitiate the sheriff’s deed to Eox.
    The statute is merely directory. Lessee of Allen v. Parish, 3 Ohio, 187.
    This objection is removed by second deed, which is admissible by relation. 3 Cowen, 75, and eases there cited.
    Admitting the objections thus far taken to be valid, the plaintiff insists upon a recovery on other grounds.
    McCoy had been in the possession for many years. There was a valid sale of the premises to Conger. The sale was confirmed.
      and a deed ordered. Shortly after the sale, Conger is found in the quiet possession of the premises, which he continues to hold undisturbed for more than four years, when he left the country to avoid his creditors. Upon this state of facts, supposing no deed to have been actually made, the law will presume that McCoy peaceably surrendered up the possession.to Conger, who had a right to the premises, because he had bought them, and had paid his money for them, and which money was applied to McCoy’s debts. By this surrender of the possession, Conger acquired a right to the possession, such as could not be defeated by the subsequent bare entry of McCoy. Conger being thus in the actual possession, and having in him the right of possession, the execution from Hamilton county is levied upon the premises, and, by the subsequent sale, the right of Conger passed into Fox, and from Fox to Armstrong, the lessor of the plaintiff. The principle is analogous to that of Maynard’s Lessee v. Cable, before Judges Collett, Lane, and Wright. Wright, 18.
    Admitting further, that both the deeds to Fox, by the sheriff, are void, still the plaintiff may well recover on the demise to Conger. The surrender of McCoy to Conger gave to Conger the .right of possession, which, as above stated, could not be defeated by .the subsequent bare entry of McCoy, which was tortious. The .sale, by the sheriff, to Fox, not passing anything, by reason of the .invalidity of the deed, this right of possession, acquired by the voluntary surrender of McCoy, is still vested in Conger, and on his .demise is sufficient to recover the possession against MeGoy, whose . entry and possession are tortious.
    *Gr. Swan, for defendant:
    The first question that arises in this case is, whether a sheriff’s . deed is effective as a conveyance when only one of many executions >is recited in it. The statute, vol. xxix, 105, sec. 16, declares, that •“ sheriffs’ deeds shall recite the execution or executions, or the sub»stance thereof, the names of the parties, the kind of action, the , amount, date of the term, etc., and shall be acknowledged,” etc. These recitals appear to be as necessary to the validity of the conveyance , as the “ acknowledgmentand if courts may dispense with the recitals as directory, there seems to be no reason why the acknowl- ■ edgment might not be treated in the same manner. We deem ¡this point worthy of consideration by the court, as one frequently ¡arising, and which has never been adjudged in a manner that may be a guide to the profession, while we entertain doubts whether such recitals should be taken as directory to the officer and not essential to the validity of the conveyance. The plaintiff has treated the question as important, and has, since the commencement of the suit, attempted to strengthen his grip by procuring another deed under the sale upon Conger’s mortgage to Matthew and Hopkins, with all the recitals required by statute ; but as the title accrued after action, it can not be used. 3 Bibb, 297; 3 Marsh. (Ey.) 134; Till. Adams, 189.
    But we depend principally for the defendant upon the insufficiency of proof as to the execution of the deed asserted to have been made to Conger by the sheriff. It is a well-settled principle, that after laying the foundation for the admission of secondary evidence, the party must prove the execution of the original and lost instrument, in precisely the same manner as if the same were present. 1 Starke’s Equity, 303. When sufficient evidence is given of the loss of the deed, its execution must be proved according to the nature of the instrument; if a deed, by subscribing witness, or proof of his handwriting, if he be dead, or that of the obligor if the deed be not attested. So if a note be lost. 1 Atb. 446.
    The law is laid down stronger in 1 Saund. PL and Ev. 517, 518. When a party asserts the execution of a deed, he must prove the same, and all the requisites attending its execution. The sealing and delivery must be proved by a third person, if no subscribing witness, and by such subscribing witness if there is one. Authorities might be multiplied to this point, but it is supposed enough has been cited to satisfy the court, that the point *taken is well established. Deeds of' conveyance, in this state, must be signed and sealed by the grantors, in the presence of two witnesses, who shall attest such signing and sealing, and must be acknowledged before a judge, etc. 29 Ohio L. 347. If the deed under consideration had no subscribing witnesses, it is not valid as a legal conveyance and can not,,sustain the action of ejectment as against a stranger. This principle is too clear to require authorities to support it. If there were attesting witnesses, they, or one of them, must be produced, or it must be shown that they are absent or dead. The authorities cited show this ; and, indeed, all our adjudged cases have been that such witnesses are the best evidence. Then this alleged conveyance from-the sheriff to Conger, either had, or had not, subscribing witnessess. If it had not, the deed can not avail as a conveyance to defeat the possession of the defendant; if it had, then such witnesses, or one of them, must be produced, or their absence accounted for. The testimony of the grantor is, “that if there were subscribing witnesses, he does not recollect who they were, nor does he recollect whether there were any — does not recollect,, if it was acknowledged, before whom such acknowledgment was taken.” To obviate this evident deficiency in the proof, the witness is cross-examined to make out evidence of the due execution by “ travit.” This mode of proving the execution of a solemn instrument upon which land titles depend, comes under some head of evidence which has escaped the research of counsel. Indeed, the witness has no distinct recollection, which, if competent, would enable ay jury to find any one of the great essentials which give validity to a deed of conveyance. He neither recollects the signing, sealing, acknowledging, nor even the delivery of the deed to Conger. Has this court any proof that there were two, or even one, attosting witness to the deed? Is there evidence of acknowledgment? The whole testimony is deficient, even if it were not secondary, and for that reason inadmissible. We say, with confidence, the existence of the deed as a conveyance is not proven; and if it were, it is not by that primary evidence that the usages of law require. The law so abhors parol evidence, that the doctrine is quite recent which allows it to be used when deeds are lost. Sir Edward Seymour’s case, 10 Mod. 8. The court were of opinion, that when a deed was lost, you might prove by copy, but the contents could not be proved by those who knew the deed. The rule, although enlarged in modern times, is still applied with groat caution. In. 1 Car. & P. *282; 11 Eng. C. L. 394, the court held, that when a letter was sent by a father to a daughter, and the son and 'daughter searched for it, the son could not be a witness,-and the farty was nonsuited because the daughter was not present. The plaintiff, then, has no ground to recover upon his paper title.
    It is urged by the plaintiff, that be has a right to recover upon the ground of priority of possession, or upon the sale and confirmation to Conger, in whose name there is a demise in the declaration, Upon the subject of possession, the witness simply proves that McCoy had been in for many years, that Conger .then got possession and ■ afterward abandoned it. How this possession was obtained by Conger, the witness does not know, and he is equally ignorant in what manner McCoy re-entered. Upon this part of' the case, we have evidence of a naked possessory title, without any higher claim by either, and it was settled that the eldest possession, or the actual possession, must prevail, where there is no superior title. 10 Johns. 338; 5Litt. 319; 7 Ohio, 146-
    There is no evidence that Conger entered adversely to McCoy ■ the fair presumption is, that he either entered under McCoy or in his own wrong, and this is fortified by the fact, that he either voluntarily abandoned the premises or peaceably surrendered them to the prior possessor. In either case, the “action can not be sustained upon Conger’s demise. If Conger abandoned the possession, the entry of McCoy can not be taken as tortious as to him. Having a mere naked possession, and abandoning that, he gave up all claim to the premises. The evidence does not show that he entered at all under color, or claim of title; nor does-it appear whether the last entry of McCoy was other than upon vacant premises. The actual possessor has title against all the world, except the legal owner, or when he has committed an actual ouster of a prior possessor. In any possible view of this part of the case, the plaintiff shows no right to recover, upon the title of possession by Conger. Did Conger’s possession gain anything by the levy of the execution, the sale, and confirmation ? This court determined, in the case of Reynolds v. Rogers, 5 Ohio, 174, that neither a levy upon land, or a sale and conveyance, effects a transfer of possession. This question is ably examined by Kent. 8 Johns.. '548-550. The issuing a fi. fa. is to give effect to the levy. Sale, and all other legal requisites, will not constitute a conveyance, but at most a contract for a conveyance. Ib. 550. We confidently expect a judgment for the defendant.
    *Wilcox, in reply :
    By looking at the sheriffs deed to Fox, it will be seen that it recites correctly the names of the parties, the kind of action, the amount and date of the judgment, and the execution,'by virtue of which the levy was made. The vendí., upon which the sale was made, is not recited. It is, however, presented to the court, and the sale, in every respect, is in conformity with the law. The power exists, and has been well executed. In such cases it is a familiar principle that misrecital, or non-recital, will not vitiate.Indeed, the counsel for the defendant do not seem to press the point. If the authority cited in the opening, 3 Cowen, 75, be good law, the objection seems entirely removed upon the principle ol relation, and that authority seems not to be questioned.
    The case was supposed to be submitted to the court, in the county, mainly upon questions of “law.” The principal question now made seems to be a matter of “ fact,” in regard to which, it would seem, that argument can be of little use. Most that can be said on the part of the plaintiff is, that it is believed the evidence is,prima facie, sufficient to entitle him to a verdict of a jury. This part of the ease seems to have been decided by this court in the ejectment ease from Richland county, in which the opinion of the court was delivered by Judge Hitchcock, on Monday morning, the 11th instant. A case in point, also, is Jackson v. Woolsey, 11 Johns. 446. There had' been a partition, and the court had ordered two commissioners to make a deed. An action of ejectment was subsequently brought, in which the existence and due execution of this deed was made a question. Neither the original nor a copy was produced. One of the commissioners testified “that the farm was sold to Gillespy; that he had not a positive recollection of executing a deed, but had not the least doubt that he and Denniston, another commissioner, since dead, gave the deed, and was certain that a deed must have been executed, though he had now no remembrance of the fact.” Wilkin, the attorney, testified “ that he wrote a deed to be signed by the commissioners, and the draft of which he had.” There was no evidence whatever that the deed was ever sealed, or witnessed, or acknowledged. The court say “ the circumstances of this case would warrant a jury to presume that the deed alleged to have been given by the commissioners had been duly executed by them in pursuance of' the order of the court of common pleas, and if so, this court are bound to presume it.” Ib. 456.
    *The circumstances of the case before the court are peculiar. Conger purchased the premises at sheriff’s sale, and went into possession. He did not record his deed. While he is thus in possession judgment is rendered against Conger, and a levy made on the premises, under which the present plaintiff claims. Before the sale Conger runs away, insolvent, and carries with him his unrecorded deed, and goes to parts unknown. In the meantime the defendant enters without any apparent right. The sale is made to Eox. Now, it is submitted that under these circumstances the plaintiff has made out a strong prima facie case for a jury.
    The sale of Conger was a valid one.
    He paid the consideration money.
    The sale was confirmed, and a’ deed ordered by the court.
    It was the duty and for the interest of the sheriff to make the deed.
    It was for the interest of Conger to receive a deed.
    It is easy to conceive why a man, in failing circumstances, should not put his deed on record.
    Soon after the sale Conger went into possession.
    The sheriff, who made the sale, testifies that he has no doubt but that he gave a deed to Conger duly witnessed and acknowledged, and thinks he gave it to Conger in his store.
    The defendant has received the pay for his land, gave up the possession till Conger ran away, and then entered in his own wrong, and is now enjoying the land, and the money, too, which Conger paid for it. May we not insist that this, to a jui’y, would be presumptive evidence of the existence of a deed to Conger?
    The counsel for the defendant do not seem to meet the argument in regard to the possession. It is not a case of priority of possession. Eor the purposes of this argument, a legal paper title may be admitted in McCoy. The point, then, is this: There was a valid sale on execution; the purchase money was paid, and the proof in the cause raises a legal presumption that McCoy voluntarily surrendered the possession to Conger. It is tantamount to a contract of sale in which the possession is delivered to the vendee. This gives a right of possession to Conger, which can not be defeated, by the subsequent entry of McCoy, without right. The proof in the cause shows that Conger left the country to avoid his creditors. This did not affect his right of possession; that he carried with him, unless it was divested by the sheriff’s sale to Fox. It is not pretended that the sale, confirmation, etc., per se, gave any title, or even any bright, to the possession, but they did constitute a good-consideration for the delivery up of the possession to Conger; and Conger having thus acquired the actual possession, he has a right to the possession as against the subsequent tortious entry of McCoy, or rather that right has passed by the sheriff’s sale to Fox. This seems to be exactly the doctrine contained in the last sentence of Judge Swan’s argument. .1 can not find the case, but admit it to be good law, and hope the court will give us the benefit of it.
   Judge G-rimke

delivered the opinion of the court:

If the evidence in this case related to a deed from one individual to another, there would be some reason to doubt whether it was sufficient to show a legal title in Conger. But it is, in this instance, combined with other circumstances which contribute to l’aise a presumption, exceedingly strong, that such a deed was actually executed. A distinction must be made between those cases where a deed, not produced, is the commencement and end of title, in an individual, and those where the deed, having for its foundation a train of judicial proceedings, is only the consummation of that title. In the first instance, the testimony to supply the production has no necessary connection with the deed; in the second, it may constitute the whole authority for its execution, and may be evidence of a higher nature than the deed itself. In this case, there is proof of the sale, of the return by the'sheriff, of the order of confirmation, and that the sheriff made the deed. We think that these facts, connected with the testimony of the witnesses, are sufficient to authorize the presumption that a valid deed was made by the sheriff to Conger. This case is not stronger than that of Jackson v. Woolsey, cited by the counsel for the plaintiff. In that case it was decided that commissioners in partition, appointed to mak , a deed, might be presumed to have made one, pursuant to the order of the court. Nor is this case so strong as the case of Tyburr v. Slade, 4 Durnf. & East, 682, where, trustees having been directed to convey to a devisee, on his attaining twenty-one years, it was held that a conveyance might be presumed any time afterward.

It is objected, to the sheriff’s deed to Fox, in the case against Conger, that it does not recite all the executions that issued upon the judgment before the sale was effected. This objection is not maintainable. All that is necessary is, that the deed show that the sheriff acted under the execution. This question has been repeatedly raised in New York, and it has been uniformly ^decided in favor of the sheriff’s deed. 10 Johns. 381; 18 Johns. 7. It is true our statute declares that the executions shall be recited, and it is often very difficult to distinguish between those ceremonies which are directory to the officer, and those which are essential to the title. If any one- general rule may be laid down, it is, that every prerequisite which can. be considered as constituting the foundation of title, is essential and indispensable, and that whatever does not partake of that character is merely directory. The word récite is used in the statute long after it had obtained a technical, legal meaning, when applied to deeds. I refer to the well-known maxim that a recital is not a neccessary part of a deed.- But it is unnecessary to decide more than that the recital, which is contained in this deed, showing, as it does, a clear and undoubted authority for its execution, is sufficient. Judgment for the plaintiff.


author: Judge Hitchcock

text:
    Smith A. Towner v. Henry Wells, William Taylor, et al. Original Bill.—William Taylor v. Smith A. Towner, Henry Wells et al. Cross-bill.
    A feme covert is estopped by her covenant of warranty, in a deed duly executed and acknowledged, in the same cases and to the same extent that any other covenantor is estopped.
    These two cases came before the court in the county of Licking. Without going into a statement of the matters contained in the bill, cross-bill, and answers, it is sufficient to. say, that the objects of the several parties are to ascertain their respective rights growing out of sundry mortgages executed by, and judgments recovered against, the defendant, Henry Wells, to effect a sale of the mortgaged premises and a distribution of the avails of such sale. The facts of the case are fully stated in the opinion of the court.
    The case was fully argued by Dille & Stanbery, for Towner, and by H. Stanbery & Hunter, for William Taylor.
   Judge Hitchcock

delivered the opinion of the court:

The material facts of this case are as follows:

1. On March 24, 1830, Henry Wells mortgaged to E. Buckingham, ji\ & Co., four hundred and ninety-six acres of land, part of section 2, township 2, range 1.0, in Licking county, to secure the payment of a promissory note of even date, in three months, for five hundred and twenty dollars seventy-eight cents. This mortgage.was recorded on August 31, 1830, and remains unpaid and unsatisfied; two hundred and ninety-six acres of the tract thus mortgaged *had been previously sold and conveyed by the mortgagor, and, of course, is not now in controversy.

2. At the October term, 1830, of the court of common pleas of Liclking county, Taylor recovered a judgment against Henry Wells, for the sum of four thousand dollars, the penalty of the bond upon which the suit was brought, subject to an inquiry as to the amount due in equity. At the October term, 1831, on inquiry, execution was awarded for twelve hundred and six dollars and fourteen cents, the sum then due in equity ; and on April 25, 1832, an execution issued, which, on the 29th day of the same month, was levied on lots Nos. 1, 2, 3, 32, 38, and 39, in the town Of Licking, which town is situate on the two hundred acres covered by the mortgage from Wells to Buckingham & Oo. The same execution was at the same time levied on thirty acres of land, west end of said two hundred acres. This levy remains undisposed of.

At the March term, 1833, of the same court, furtner breaches having been assigned by scire facias, a further execution 'was awarded for six hundred and forty-five dollars and eighty-seven cents, the sum then due in equity; and on the 25th day of April following, an execution was issued upon this award, and was levied on twenty-four lots in said town of Licking. Pursuant to this levy, said lots were sold on March 29, 1834, for two hundred and seventy-eight dollars and thirty-one cents, of which thirty-eight dollars and thirty-one cents was applied to the costs, and two hundred and forty dollars to the debt of the execution

3. On January 13, 1831, Wells executed to Smith & Towner a mortgage on the same two hundred acres, covered by the previous mortgage of Buckingham & Co., excepting the town of Licking above named. This mortgage was to secure the payment of four several promissory notes, of even date, amounting together to sixteen hundred and seventy-one dollars.

At the October term, 1831, of the court of common pleas of Licking county, Towner recovered against Wells a judgment, on two of the notes secured by said mortgage, for the sum of seven hundred and forty-one dollars and twenty-one cents; and at the March term, 1832, he recovered a further judgment, on one other of said notes, for three hundred and forty-four dollars and thirty-one cents. On the 23d of March, executions issued on both these judgments, and on the 29th of April following, were levied on ninety-six acres of land, east end of said two hundred acres, covered by the mortgages of Buckingham & Co., and of Towner. This land, however, has not been sold, although the levy has been kept good.

At the June term, of the same court, 1832, Towner recovered a further judgment, on the remaining note, for three hundred and forty-eight dollars; and *on April 25, 1833, an execution was issued on this judgment. This execution was levied on June 29, 1833, on seventy acres, west end of said two hundred acres, excluding the town of Licking, and the ninety-six acres before levied upon by Towner, but including the thirty acres previously levied upon by Taylor.

4. At the October term, 1832, on a bill to foreclose his mortgage (to which, neither Taylor nor Buckingham & Co. were parties), Towner obtained a decree for the sale of the two hundred acres covered by his mortgage, pursuant to which decree, the sale was afterward made to himself for eighteen hundred and one dollars and fifty cents, but this sale has never been confirmed by the court.

5. In 1833, William Taylor purchased in the mortgage, of E. Buckingham, jr. & Co., and took an assignment of it.

After the original bill of Towner was filed, he assigned his interest to Avery and P. W. Taylor, who have instituted -a supplemental bill, setting forth the assignment to them, and alleging that they have offered to redeem the Buckingham mortgage from William Taylor, which he refused to permit them to do, claiming the right to tack Ms judgment to this mortgage, and thereby to secure himself.

There are other facts in the case, but these are all that is material to state. There are also other judgment creditors, but it is unnecessary to go into an examination of their liens, as such examination can not, in any shape, affect the main point decided.

It is insisted by William Taylor, in his cross-bill, that he is entitled, as assignee of Buckingham & Co., to 'tack his judgment to their mortgage, and thus exclude the intervening mortgage and judgment of Towner. This point, however, is not insisted upon by his counsel; and, with their usual candor, they admit the authorities are against them. This principle of tacking, it is believed, was never recognized in this state, and so long as regard is paid to natural justice, I apprehend it never will be. Ocr statutes have prescribed for us rules, with respect to the priority of liens, and by them we must be governed.

There is no controversy but that the mortgage to E. Buckingham, jr. & Co. is the elder and better lien upon the land in controversy, and must be first satisfied. It was executed March 24, 1830, and is now the property of William Taylor.

The mortgage to Towner was executed in January, 1831, and must be next satisfied, unless postponed to the judgment recovered by William Taylor in October of the preceding year. It is necessary, then, to ascertain the character of this judgment, and ^settle the question, whether it operated as a lien from the time of its rendition, or only from the time of the several executions awarded. This is the principal question argued by counsel, and when disposed of, there does not seem to be any further difficulty in the case. If this judgment was a lien from the time of its rendition, although no execution was sued out, within the year after it was rendered, and therefore could not operate to the pre-judice of subsequent bona fide judgment creditors, still it would operate to the prejudice of subsequent purchasers.

This judgment is upon a bond for the performance of collateral conditions, and is for the penalty of four thousand dollars. It was not a judgment, however, upon which execution could issue, but was rendered subject to a subsequent inquiry as to the amount dtae in equity. This inquiry was had in October, 1831, and an execution awarded for one thousand two hundred and six dollars and fourteen cents. Whether this sum was actually due, or whether anything was due, in October, 1830, does not appear, but this much was in equity due in 1831. The proceeding was under the practice act of February 18, 1834, which authorized the court, where suit was brought upon any bond, or other contract in writing, for the recovery of any forfeiture or penalty, or for the non-performance of any contract, or other agreement, contained in such bond, or other contract in writing,” etc., to give judgment for the penalty of the bond, and to award execution for the amount of damages assessed by a jury, or for the sum due in equity, according to the nature of the case, together with costs of suit. ’ And. it was further provided, that the judgment for the penalty should stand “ as security ” for any further breaches that might subsequently happen of “ such covenants, agreements, or conditions,’ etc. 2 Chase’s Stat. 1268. It seems to be supposed, that as this judgment for the penalty of the bond is to remain as “ a security ” for any further breaches, etc., therefore that it must operate as a lien. I do not so understand it. The only effect of the whole provision is, to empower a person, who is the obligee of a penal bond, for the performance of collateral conditions, to commence his action when only a part of the conditions shall have been broken, and have execution so far as he has sustained injury. But if afterward he sustains further injury by the breach of other conditions of the contract, he may have further execution and satisfaction.

A judgment, of itself, does not confer any rights upon the creditor over the estate of the debtor. It is not, ex vi termini, any lien upon his estate ; it is evidence of a right which may be *enfofced by execution; but the right itself existed previously. Whether it shall operate as a lien, and to what extent, is the proper subject of legislative enactment.

The act of February 4, 1824, “regulating judgments and executions,” 3 Chase’s Stat. 129, was in force when this judgment for four thousand dollars was rendered. In section 2, it is enacted, “that the lands and tenements of the debtor shall be-bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment, shall be rendered, in all cases where such lands lie in the county where the judgment is entered; and all other lands, as well as the goods and chattels, of the debtor, shall be bound from the time they are seized in execution.” The term, “ any judgment," is broad and comprehensive, and would include judgments of any and every description. Could this have been the intention of the legislature? It seems to me that an examination of the statute will show that it could not. Judgments are either interlocutory, or final, and either would be embraced in the words “ any judgment." Still, generally speaking, upon an interlocutory judgment, an execution can not be issued. But in section 17, it is provided that no judgment “ on which execution shall not have been taken out, and levied before the expiration of one year next after the rendition of such judgment, shall operate as a lien on the estáte of any debtor, to the prejudice of any other bona fide judgment creditor.” Now, it can hardly he supposed that the legislature intended to deprive a man of his lien, when it was not in his power to enforce it. In truth, the contrary is manifested by this same section, whore it is provided, that when the judgment is rendered in the Supreme Court, the year shall commence to run from the first day of the term of the court of common pleas to which the mandate for execution from the Supreme Courtis directed. And, it is further expressly enacted, that nothing in this section contained, shall be so construed as to defeat the lien of any judgment creditor, who shall fail to take out execution, and cause a levy to be made as herein provided, when such failure shall be occasioned by appeal, writ of error, injunction, or by a vacancy in the office of sheriff, or coroner, or the inability of such officer, until one year after such disability shall be removed.”

From a review of the whole statute, and more particularly of section 17, I am led to the conclusion that the legislature, when they speak, in the second section, of “ any judgment,” ^intend any judgment which is final, and conclusive of the matters in controversy between the parties — of judgments, in pursuance of which the creditor may forthwith have execution.

What, then, is the character of the judgment recovered by William Taylor at the October term of the court of common pleas? Was it a final judgment? “Final judgments are such as at once put an end to the action.” 3 Bl. Com. 398. This is not such a judgment. It did not put an end to the action. Further proceedings were necessary to be had before the rights of the parties could be ascertained, or before execution could be issued. It may properly be assimilated to a judgment, by default or on demurrer, where a subsequent inquiry of damages is necessary. Such judgments are merely interlocutory, and can not operate as liens upon the lands and tenements of a defendant. If we were to hold otherwise, it would follow that this judgment lost its lien before execution could be had upon it, because no execution was awarded until one year after judgment rendered.

In the opinion of the court, this judgment did not operate as a lien until execution was awarded, in October, 1831, and then only to the extont of the amount for which execution was so awarded. Previous to this period, the mortgage was executed to Towner, and constitutes a preferable lien.

Such being the opinion of the court, it is unnecessary to examine the other points made in the case, as to the effect of Towner’s judgments, the executions upon those judgments having been levied upon the same lands covered by his mortgage.

A decree may be taken referring the case to a master, and directing the sale of the lands mortgaged, excepting those lots in the town of Licking, which have already been disposed of. In distributing the avails, the Buckingham mortgage must first be satisfied; next the mortgage to Towner; and the balance, if any, will be distributed among the several judgment creditors, according to their respective liens.


author: Judge Wood

text:
    *Robert B. Brown v. David Cutler and Frederick Bowers.
    New matter introduced in the answer, and not responsive to the bill, must be proved, or it avails nothing.
    This cause was adjourned from the county of Darke, and is principally a case of facts.
   Judge Wood

stated the case, and delivered the opinion of the court:

This cause is heard upon an original and supplemental bill, and the answer of the defendant, Bowers. Cutler has not answered. The complainant alleges that, May 28, 1834, he obtained a judgment against Cutler, before a justice of the peace, for seventy-two dollars and fifty-eight cents, with costs; that execution issued and was returned, no property found whereon to levy ; that, in truth, the defendant owned no property subject to execution at law, but that he did own an equity of redemption in real estate; that, on March 1, 1834, the complainant had sold and conveyed to Cutler the east half of the southeast quarter of section 1, township 10, range 1 east, in Darke county; that on the same day, Cutler mortgaged the same premises to the complainant, to secure one hundred dollars, part of the purchase money, payable March 1, 1835. The bill prays that Cutler’s equity of redemption in this mortgage may be sold to pay complainant’s judgment.

The supplemental bill charges that after the original bill was filed, Cutler made a pretended sale of this equity to Bowers, who . is made a party defendant, the object of which sale was to defeat the recovery of the complainant, of which intention Bowers was cognizant. And the bill prays that this conveyance may be decreed fraudulent, as against the complainant.

Bowers, in his answer, states that before the complainant filed his-bill against Cutler, a contract had been made by Cutler with Bowers to mortgage the land to him, to secure a debt due from Cutler to Bowers. The contract, he thinks, was made in March, 1834, and in December, 1834, Cutler made his conveyance in fee, of which the debt to be secured by mortgage was, in part, the consideration. Bowers admits the mortgage from Cutler to the complainant, and claims that, at the time of answering, he is the owner and holder of that mortgage. The answer further alleges that before the sale to Cutler by complainant he had mortgaged the same lands to one Blakely, .which mortgage was concealed from Cutler, and is still out, for one hundred and forty-six dollars and twenty-three cents, which Bowers *would have to pay to perfect his title. All knowledge of the pendency of the complainant’s bill, antecedent to the conveyance of December, 1834, from Cutler to Bowers, is denied, as is also all fraud.

There is a replication to this answer, and the case was submitted,. without argument, upon the pleadings, exhibits, and depositions. Upon- examining the subpena, it appeared not to have been served upon Cutler until May, 1835.

Two principal points arise in the case: 1. Had Bowers a prior equity, in virtue of the contract set up in his answer, as made with Cutler, in March, 1834? 2. Does the mortgage to Blackly subsist as alien for a debt due from the complainant, which equity may deduct from the amount due to the complainant?

Upon the first point, it is sufficient to remark that the alleged contract of March, 1834, between Cutler and Bowers, and its consummation, in December, 1834,. is new matter introduced in the answer, and responsive to no allegation in the bill. No proof is introduced in support of it, and consequently, according to the settled rule and practice of the court, it must be disregarded.

On the second point, the proof is clear that Blakely’s mortgage was satisfied, and the fact well known to Bowers.

The complainant, then, is entitled to the relief he seeks unless Bowers is a fair bona fide purchaser. Is he such, on the proofs in the case? Our opinion is otherwise. Yarious witnesses testify to the full knowledge of Bowers of the complainant’s claim; and one witness proves the declaration of Bowers, that he meant to buy the land and keep the complainant from obtaining the amount of- his judgment. A purchase with this intent, when the fact is ascertained, is void as against the creditor intended to be defrauded. The conveyance from Cutler to Bowers is in this predicament. It must bo declared void, and the equity of Redemption of Cutler subjected to the satisfaction of the complainant’» judgment.


author: Grimke, J.,

text:
    *Devisees or David McCune v. House and Litch, Administrators.
    Under the statute of Ohio, a duly executed written-will can neither he wholly nor partially revoked by a subsequent nuncupative will.
    This case was reserved in Gallia county.
    It was an issue, out of chancery, to try the validity of a nuncupative will. The agreed case shows that David McCune, while domiciled in the island of Jamaica, made a written will there, by which he disposed of his entire estate, both-real and personal. That he afterward emigrated to the United States, acquired a domicile in the town of Gallipolis, Ohio, and there made a nuncupative will, disposing of a part of the property which he had before bequeathed by the written will. The complainants claim under the written will; the defendants, under the verbal testament; and the case, is submitted to the court, for them to determine whether this last testament revoked, the prior written will made in the island of Jamaica.
    Arius Nye, for the heirs of McCune.
    Yinton & Nash, for House and Ditch.
   Grimke, J.,

delivered the opinion of the court:

■ The proposition which is submitted to the consideration of the court, is whether a written will can be revoked by a subsequent nuncupative one. But as we have power to decide only cases and not questions, we must decide, not whether a will, but whether the will made in the island of Jamaica was revoked by Uio will executed at G-allipolis. And this form of stating and determining the proposition will not deprive the parties of any right to which they would otherwise be entitled. The written will makes a disposition of the whole estate of the testator, and if the verbal will is legal, it will revoke the former disposition of the personal property. It was once a contested question, whether a will of personalty should be executed according to the law of the testator’s domicile or of the place where the goods are situated. It was always admitted, that in case of intestacy the law of the intestate’s domicile must regulate the distribution of his personal property. But a distinction was attempted to be made between a presumed intention in the one case and an expressed one in the other; and it was supposed that it was only where a will is not expressed that the law of the domicile was raised up to execute a presumed will. But inasmuch as personal property *has no locality but accompanies the person of the owner, the consequence necessarily is, that the voluntary disposition, as well as the distribution of it, must be governed exclusively by the law of the domicile. So that it is now received as a settled principle, that if a will of personalty is made in a foreign country, and then the testator changes his domicile, the will must be executed according to the law of the new domicile. 3 Merivale, 67. The written will of Mr. McCune, therefore, although made in the island of Jamaica, must be governed by the law of Ohio. There does not appear to be any objection to its validity on that ground, and thus is presented the single question, whether the subsequent nuncupative one has the power to revoke it.

In England, before the statute of frauds, a writen will might be revoked by a nuncupative testament, and it was in consequence of .an atrocious conspiracy to set up a nuncupative will over a prior written one, that the glaring defect in the law came to be perceived, and that the statute was passed. The history of the transaction is given in a note to Matthews v. Warner, 4 Ves. 196. Mr. Cole, three years before his death, had made a written will, giving three thousand pounds to charitable uses. Mrs. Cole set up a nuncupative will, by which the whole estate was given to her. Upon the trial, it Appeared that most of the witnesses to this will were perjured, and •that Mrs. Cole was guilty of subornation. And upon this occasion Bord Nottingham said, “ I hope to see, one day, a law that no written will should be revoked but by writing.” The next year the statute of frauds was passed. In England, then, a will of personAlty, which need not be attested by witnesses, can not be revoked by a verbal testament.

Section 2 of our statute of 1831, directs that every will disposing of real or personal property shall be in writing, and attested by two witnesses. Section 5 declares that any last will and testament shall be revoked by cancellation, or by subsequent will or codicil made as aforesaid. Sections 11 and 12 authorize the making a nuncupative will. And thus, I believe, it will be found that we, in Ohio, have enacted the same salutary provision which is contained in the English statutes of frauds; though it must be remembered that there Are much stronger reasons why such a law should be established here, than in Britain, as a will of personal property must here be attested by two witnesses. Section 5 of our act declares that a will revoking a former will shall be executed as aforesaid. The wills before spoken of are those of *real and personal estate, and thus the statute, by necessary implication, or rather by a plain and expressed intention, has declared that such revoking will shall also be in writing and attested by two witnesses; for the clause which permits a nuncupative will to be made, is placed by itself and postponed to sections 11 and 12, so that the words as aforesaid, in section 5, can not, without confusing the whole arrangement of the testamentary clauses, be supposed to have any reference to sections 11 and 12. All our prior laws on this subject •correspond with this view, and seem to have forbidden the revocation of a written by a nuncupative will. The act of 1808, in sections 1 and 2 declares how a written will shall be executed, but is not followed, as is the present law, by a section prescribing the manner of revocation. Section 3 directs how a nuncupative will shall be executed, and then provides that no such will shall revoke a written will. The act of 1808 is similar to the present statute. It declares how a will shall be revoked in a clause antecedent to that which gives power to make a nuncupative will. It omits section 3 of the act of 1805, because the manner of revocation being defined in another section, sucha declaration became unnecessary and would have been supererogatory. In truth, there could not be any doubt about this matter, if it were not for a mere change-in the arrangement of the sentences in these -laws, which shows how important it is, in framing a new statute, not to indulge in any arbitrary change of even the form of an old one; since, if it does not lead to any ultimate difficulty, it is calculated to produce doubt, ■which should, as much as possible, be avoided.

There are very good reasons why an individual, he who has not-yet- executed a written will, should be permitted, under peculiar circumstances, to make a verbal one. But when he has already executed a written will with all the solemnities of the .law, there are equally strong reasons why the revocation of it should be attended with the same solemnities. It is not in restraint of this freoaction; it is to protect him from a fraudulent conspiracy, very likely to take place, where he has already disposed of his property counter to the wishes of those who surround him. The frauds practiced in England gave rise to the enactment in the statute of frauds.. The act of 1805 was framed in analogy to that law; and the act of 1831, with a design equally plain, has also forbidden the revocation of a written by a nuncupative will.


author: Judge Lane

text:
    *Lessee of Samuel Reed v. William Marsh.
    In executing surveys under the laws of the United States, the mere marking a corner by the surveyor establishes no boundary, but such marked corner is controlled by the actual division lines subsequently made, field notes of -which are returned to the proper offices, and preserved according to law.
    This is an action of ejectment reserved from the county of Scioto.
    The defendant is proprietor of fractional section 6, in township 2, of range 21, entered in 1804, by Fullerton and Clapperton, pat•ented to their assignees, Calhouse & Henderson, in 1812, and by them conveyed to him. . ,
    The plaintiff owns five hundred and fourteen acres, from the north side of fractional section 5, in the same township, which was entered by James Stump, April 13, 1813, assigned to the plaintiff and patented to him in 1827. The point in litigation is the line between sections 5 and 6. The corner maintained the defendant is at an elm; the corner claimed by the plaintiff is at a box ■elder.
    By the act of Congress of 1796, Swan’s L. L. 35, the surveyor was directed to cause a survey of the territory, which includes this tract, to be made into townships six miles square, by lines running in the direction of the cardinal points; that alternate townships were to be subdivided into sections by running parallel lines, each way, through them, at distances of two miles; and each intermediate corner to be marked at the distance of one mile. By the statute of 1805, Swan’s L. L. 51, the two-mile blocks, in these townships, were to be subdivided by straight lines, to be run from the corners marked in the first survey to the opposite corresponding corners. The corners marked are declared, by the statute, to be the proper corners of the sections. The boundary lines, actually run and marked, are established as their proper boundary lilies.
    In 1799, a deputy surveyor was sent to survey this district. He fixed the corner of the township, which is the northeast corner of section 5, and proceeded to run the line between townships numbered 2 and 3, which forms the north line of the two fractional sections, Nos. 5 and 6. In making his return to the principal surveyor, he describes a corner set in this line for sections 5' and 6, and likewise for sections 31 and 32, in township No. 3. This is the box elder corner. No line was run between sections 5 and 6, nor between sections 31 and 32, as this was the intermediate line between the exterior lines of the two-mile blocks. Before any further surveys were made, the entry of fractional section No. 6, now held by the defendant, was made in quantity three hundred and forty-five acres.
    *In July, 1805, Denny, another deputy surveyor, was employed to make the subdivisions under the last-cited law. Ho run a random line between sections Nos. 31 and 32, in townships, until it struck the township line; when, finding it fell one hundred and seventy-two poles east of the box elder corner, and left for section No. 6 less than eighty acres, instead of three hundred and forty-five, he suspected error in the position of the corner; and leaving his survey uncompleted, he set no corner posts for the quarter sections, as directed by the statute, but made a memorandum, in his field notes, of a provisional line only. He referred to the surveyor-general for instructions. Some delay seems to have-occurred in this reference, but some time afterward Denny, his assistant, proceeded to complete the survey, and the line commencing on the north side of sections 31 and 32 was run south between them, and was extended over the township line and between sections .Nos. 5 and 6, disregarding the box elder corner, and establishing the elm corner at the point of intersection.
    Evidence was offered by the defendant, tending to show that the box elder was not intended by the surveyor, who made the first survey, to be a section corner, but that it was marked by his party in a drunken frolic, and that it has always borne the name-of “the drunken corner;” that the elm has ever been regarded, in the neighborhood, as the true corner of the sections; the lands adjoining, as well sections 31 and 32, as sections 5 and 6, have-ever been held in conformity with the last survey; that the plaintiff, in conveying the north part of section 5, recites in his deed recited that the elm is the true corner of his land.
    The court instructed the jury that upon these facts the elm was the corner of these sections, and they returned *a verdict for the defendant. -The plaintiff makes this motion for a new trial for-the alleged mistake of the law.
    Mr. Clough and Mr. Scott presented arguments for the-plaintiff.
    Murrhx, on the same side.
    This motion is mainly founded upon a misdirection of the court, to the jury, upon the trial, and involves: 1. A construction of the-act of Congress of May 18, 1796, referred to in the argument of the' Hon. S. E. Yinton and "W. Leonard, for defendant. 2. The-rule of evidence which ought to prevail in questions of boundary of lands, surveyed under the provisions of that act, and some-other subsequent acts of Congress of like import.
    *The miserable condition into which land titles in Yirginia- and Kentucky had been thrown by the loose and vague manner-of making entries and executing surveys, in the early history of the country, whereby the title to lands often rested upon the uncertain memory of individuals, induced Congress, at an early day,, to establish some mode of surveying the public lands, which might obviate these growing evils, and fix, not only a more certain and uniform boundary to lands, but also give to the government purchaser a more safe and permanent evidence of boundary in the records of the county than he before had; and we humbly conceive that a just construction of the act of Congress of May 18, 1796, will not only effect the object, but entitle the plaintiff to a new trial in this case.
    What, then, are its provisions? They are:
    1. That a surveyor-general shall be appointed, with a salary of two thousand dollars per annum.
    2. Field books to be returned by his deputies to his office, and there kept (not expunged). Fair plats to be returned to his office, and there recorded for public information.

    3. He shall appoint skillful deputy surveyors, who shall survey the lands, taking an oath, etc.
    4. The surveys to be made as follows:
    1. By north and south lines, run according to the true meridian.

    2. By other lines crossing them at right angles, so as to form townships of six miles square.
    3. And that this rule should not be departed from, further than the particular circumstances of interference with rivers, Indian lands, or former surveys might demand.
    4. The corners of townships to be marked with progressive numbers from the beginning.
    5. Each distance of one mile, that is the mile line between' the corners, is to be marked different from the corner.
    6. To be subdivided into sections of six hundred and forty acres, or nearly so, by parallel lines from each two-mile corner, marking a corner on the parallel lines at the end of each mile.
    7. And particularly, the sections are to be numbered.
    8. Witness trees, near each corner, to be distinctly marked, showing the number of section and number of township.
    9. Field books to show the description of corner tree, and its number.
    10. All lines to be plainly marked.
    *The surveys thus executed, and the field books, shall be returned to the office of the surveyor-general, for the use and information of the public. But, according to the opinion of our antagonist counsel, these records are of no use, and give no certain information whatever.
    Have we not a right to infer, from the great particularity of this act, that the national legislature intended to give a higher validity and more unquestionable authority to these vouchers, field books, and records, when thus executed, and returned by sworn officers of the law, than can be given in courts of law to the uncertain memory of individuals?
    Is it not an alarming departure from the settled doctrine of courts of justice, to insist upon impeaching such public documents and records, made and kept by the sworn officers of the law, in strict conformity with their duty, by evidence of facts existing merely in parol, or by the acts of individuals not acting under the .solemn sanction of the law?
    May we not ask this honorable court to review the decision made by them, when refusing to charge the jury, that these solemn acts of record were the only legal evidence of title, not to be impeached by any act of any officer not acting under like solemn sanctions.
    After the survey was made by Langham, under and in pursuance of the law of Congress of 1796, and after this survey had been returned, with the field books, and made, by the express provisions of the act, matter of record, upon which the subdivisions were thereafter to be made, what authority bad the surveyor-general under that, or any subsequent act of Congress, to alter, or authorize others to alter, these corners and lines so made, established, and returned? Does the act of 1805 give this authority? It is contended that it does.
    That act, so far from authorizing the surveyor-general or his deputies, to alter, amend, or abolish any one of the corners, or lines, made and returned under the act of 1796, positively recites what has been done under that act, and that recitation amounts to a legislative affirmation of the survey and corner in dispute. Mark the language of that act: “The surveyor-general shall cause all lands north of the river Ohio, which had been surveyed under the act of 1796, and were subdivided by running parallel lines through the townships, each way, at the end of every two miles, and by marking a corner on the lines at the end of each mile, to be subdivided into sections.” Now, it is 'J'plain, from this act, that if the land in dispute, and the contested corner, the box elder, had not been surveyed and fixed, before the passage of -this act, the surveyor-general could derive no authority to subdivide it under this act; i. e., if this land had not been previously run off by Langham, or some one else, as directed in the act of 1796, how could the surveyor-general have subdivided it under this act? Does not this act of 1805, by its very terms, refer to the survey made by Langdon, upon which we rely as conclusive evidence of our right? Is it not an express ■legislative recognition of this survey, under which we claim? Does it not, expressly confine the subsequent action of the surveyor general, and his deputies, to a mere subdivision of the larger lots? Does it authorize him, of his deputy, to resurvey the larger divisions ? Does it authorize them to remove, alter, or amend the lines or corners before made? Does this act not expressly say, -that in making the subdivisions, the surveyor shall make the subdivisions by running straight lines from the corners before made? This box elder, it will be recollected, is not only a mile corner, but also a center corner for four sections; that is, it is not only a section, but a corner to four sections, made by Langham, between 31,32, and 5 and 6. The survey made by Langham, under the act of 1796, would have been incomplete without this box elder corner. This box elder corner was made and returned byLaugham, under the act of 1796; he was a sworn officer of the law, for that purpose appointed; and this survey made by him, and this box elder corner made by him, are returned and recorded as required by that act; and the act of 1805, passed by Congress, with these records and returns before them, is recognized in the act of 1805, referred to in express terms of recognition; and so far as the ■corners made by Langham are concerned, they are designated expressly as the points from and to which the subsequent surveyor shall start and run.
    If the exact quantity, in each section, is to be a rule of evidence in determining the boundary, he is right; but surely he is not .serious in this pointed reference.
    If, then, the act of 1805, gave no authority to the surveyor general to alter the corners made by Langham, the court erred in refusing to give the instructions asked for by plaintiff’s counsel.
    But it is contended that this box elder corner varies some one ■or two hundred poles from the true line. Such is not the case, from the evidence, unless it is meant that the course gives the true line. The true line is the line made and marked by *Lang-ham, and this corner is in that line. It is not, therefore, variant from the true line as marked out, however it may vary from the true course of the compass or meridian.
    But, says one of the counsel, this “box elder” is the “drunken corner,” as appealing to the legal bench. It was always called the “ drunken corner.” Well, be it so. Call it what you will, it is the-“box elder” corner made by Langham, as the true corner, returned and recorded, and specially referred to with all other mile corners, in the act of 1805, by which the subsequent surveyors were to be governed in subdividing the land into sections. They shall, says the act, run from corner to corner; but it is urged that-inasmuch as the subsequent surveyor, under the act of 1805, chose not to be governed by the act, the statute law of the land is made-void, and the act of the surveyor, done in contravention of the-law, is good and binding.
    Again, it is said, the “box elder” corner was not made by Langham, the surveyor, but by his party, while in a drunken frolic; and such is the parol evidence by which the records orderedT by act of Congress to be kept for public information, as evidence of our right to freehold estates, are to be expunged and made of no-avail in courts of law. Such a doctrine would set the whole land at variance, and unsettle every title in the country.
    If it be true, as is metaphysically contended, that the acts of all the different surveyors, on one tract of land, constitute the survey, “ that the survey is the ‘whole thing,’ of which the surveyors are the parts, yet this does not prove that the record of their acts, or the record of the Í whole thing ’ is to be vacated by the acts of the parts; and what is worse still, by the parol evidence of those acts, in contravention of the record of their acts, or the record of the‘whole thing.’”
    Counsel admits that the object of the act of 1796, was to close-the door against questions of boundary ; but in order to open the door again, he would have us believe that the act of 1805 was passed to authorize the surveyors to amend all former lines and corners, if they thought proper, and so to execute the work as to vary from the former records, and let in parol proof of what was,, or what was not, the true corner of any given township, section,, or quarter section ; and such is the effect of the positions now assumed for the defendant by his learned counsel.
    But the great mistake of the learned counsel, in his commentary upon the act of 1805, seems to consist in this — when that *act directs the surveyor general to cause the lines subdividing the townships and sections to be run from one corner to the other corresponding corner, he forgets, or seems to forget, that these corners, mentioned in the act, refer expressly to the corners-made by Langham, and, consequently, to the “ box elder,” and argues that as the line was to be run, ergo a new corner was also to be made — that if the course of the compass, set under the act of 1805, did not hit the corner set up and marked under the act-of 1796, ergo a new corner was to be made, and hence the counsel charges that plaintiff asks the court to establish a line which was-never run. Now, the plaintiff asks the court no such thing; we-ask the court to establish the corner, not the line. We say the-court has nothing to do with the line; that the law made the-corner the permanent object, which was in all future ages to determine the line; that the corners, being fixed by the record, cannot be moved by parol; and that the act of 1805 only gave authority to run from corner to corner — not to demolish old corners made-under the act of 1796.
    We admit that the court has no power to make a record, nor-have they any power to make a corner which was never made and recorded; much less have they authority to receive parol evidence-to vary and contradict the record of the “ box elder ” corner made by the surveyor, under the act of 1796, in May, 1799.
    The case cited from Judge Wright’s reports can give no support to the position assumed by the. counsel for defendant; that case related only to the subdivisions of former surveys, and the-lines and corners, as between these subdivisions made under the-act of 1805, is a very different question from the one under consideration. We show a complete record of a corner fixed by the act-of 1796, surveyed in 1799, and entered before the passage of the act of 1805. Our corner, viz: the “ box elder,” was made, returned, and recorded by the authorized officer of the law, acting under-oath, and we show the record thereof made and kept for public use; we show our survey of the land prior to the act of 1805, and we-contend that the court erred in not charging the jury, as requested, upon this evidence of record. We rely that the act of 1805 gave no authority to alter the corners made, returned, and recorded under the act of 1796; but, on the contrary, that the act-of 1805 expressly recognized these corners, and we say that no parol evidence is admissible to vary the record of the corner so-established, or change the corner by any line or lines which may have been run; that parol evidence of *a line actually run, variant'from the record corner, is wholly inadmissible, and, if ad•mitted, would work incalculable mischief in this country, and would, moreover, defeat the admitted object of the act of 1796, .and 1805 also; that the whole policy of the law is against the pretensions set up by defendant’s counsel, and that his pretended record of a line” is visionary and vain; that there is no such •thing contemplated in either act of Congress as the “record of a line;” that no line trees are recorded or named in any part of the returns made by the surveyors, nor does the law require it; that the law only requires corner trees and witness, trees to be ■noted and marked, returned and recorded; and that if a line tree, or trees, were recorded, it could avail nothing, as the law re•quires the lines to run from corner to corner. Nor does the patent or grant contain the line or lines of the land; it designates the ground granted as a section, or quarter section, and these sections, or quarter sections, are determined by the corners, marked ■and recorded, and not by the real or imaginary lines.
    Mr. Yinton submitted an argument for the defendant.
    Leonard, on the same side:
    • The reasons assigned for a new trial in this case are all alleged errors of the court, in allowing illegal testimony to go to the jury, •or refusing to instruct or improperly instructing the jury.
    In the first place, I shall not admit that the reasons assigned •specify exactly, or embrace completely, all the facts that were •disclosed on the trial, and I wish to make a particular application of the remark to the second, third, and fourth assignments of reasons.
    I'submit to the judges before whom the trial was had — to their recollection or notes of the trial — the matters of fact on which 'these reasons are founded; as, also, whether these were the questions of difficulty reserved, or intended to be reserved. And •I submit to the whole court, without comment, whether they ■furnish sufficient grounds for a new trial.
    In proceeding, in the next place, to the principal question — the only one, in truth, that was reserved — I observe that the argument of the opening counsel mistakes the case. This is not now •a question of fact where the line was actually run, or where the corner was made, but a question of law, substantially amounting to this: "Which is the true line between sections Nos. 5 and 6 — the line actually *run under the law of 1805, or a line to be run from the “ box elder,” communiter dictus, drunken, corner?
    The decision of this question depends upon the construction of the acts of Congress, and more especially upon three several acts-to be found in Clarke’s Land Laws, No. 71, p. 420, act of May 18r. 1796; No. 107, p. 495, March 26, 1804; No. Ill, p. 515, February 11, 1805.
    The last act is the most material, its first section having given rise to the present difficulty. This section, reciting the surveying under the act of May 18,1796 (No. 71), into two-mile blocks, by the running of lines, and the marking of corners at the end of every mile, provides for the running of lines from the mile corners thus marked. Admitting, for the present controversy, that the box elder corner was marked under the act of May 18, 1796 (No. 71)r and the line was run from the elm corner, as claimed by the defendant, under the act of February 11, 1805 (No. Ill), which governs, the corner marked, or the line ran?
    Whether the three principles or rules of the act of 1805, for ascertaining the boundaries of the public lands, are to be taken-altogether prospectively, or not, is immaterial, and a question I do not choose to make. Indeed, I do, for the purposes of the present question, cheerfully concede, that where, in the first and second rules, it is provided that “ the ■ corners, marked in the surveys, returned,” etc., and “ the boundary lines actually run and marked in the-surveys, returned,” etc., these provisions or rules only apply to corners and lines antecedently made; for instance, in the present, case, the first rule applies to the box elder corner. But the second rule, which, while it establishes the lines actually run, directs-others to be run; for instance, the line claimed by defendant surely as much establishes the line thereafter to be run (to wit: the defendant’s line), as a boundary, as theline previously surveyed and returned, or as the corner made.
    Suppose the defendant's line had been one of the lines of the two-mile blocks, and run before the act of 1805, but the corner had been found off the line a hundred poles; the first and second rules would have confirmed both the corner and the line. Indeed, they would have stood in no need of confirmation. The act of May 18, 1796, would of itself, without the aid of these rules, have established the same boundaries, and received the same construction, as the rules themselves. And the rules only confirm tha< •previously made lines and corners, and are directory to the sur•veyor as to the manner of completing the surveying, authorized *by section 1 of the same act of February 11, 1805. But suppose the case put, of a line of the two-mil.e blocks, and a corner off the line, both made previously to the act of 1805, and both confirmed by the first and second rules, would the corner control the line, or the line the corner ? A corner is no boundary; it is only a terminus of a boundary. It is a point. It has no length •or breadth. A line is a boundary to a superficies. If without breadth, it has length. I.t is more labor to make a line than a •corner. It has more marks. It is more easily found and identified. Should you establish the corner in preference to the line, where are you to go ? The corner gives you no boundary. You must run an imaginary line, wh'en you have an actual line which the law establishes ; you sacrifice a line to a point, the major to the ■minor. If you establish the line in preference to the corner, your work is complete, the business is done, the boundary is entirely ascertained; whereas, should you establish the corner in preference to the line, you have no boundary, you only have a terminus; the other terminus is to be ascertained, and a line to be measured or ascertained between the termini.

    But is the case altered by the fact, that the box elder corner was made under the law of 1706, and the line run under the act ■of 1805; or, because the law of 1805 directs the line to be run from the corners made under the law of 1796 ? It would be trifling with the co,urt to say much in answer to tho first query. The validity of a law does not depend upon its priority, or posteriority •of date; nor does the validity of an act, done under a law. Indeed, if there is any preference in this respect, it is in favor of the last law, and the act done under it. But I suppose acts in pari ■materia are to be construed together as parts of one code, as one statute.
    As to the second query: What was the object of the act of 1805? Mile corners had been marked, but mile lines not run, .and the law directs them1 to be run. Congress was not satisfied that the public lands should be sold by an imaginary line, to be run from a marked corner. Congress required the line to be ■surveyed, and directed the manner in which it should be surveyed, its termini, etc. And now, for what purpose? For the purpose •of bounding or selling the land by an imaginary line, to be run from the corners antecedently marked, pray? This could have “been done under the former laws. Mo, I mistake, not after the act of March 26, 1804. No. 107, p. 495. By section 13 (p. 501), every section, and its subdivisions, is to be surveyed, and the *lines marked (the fees to be paid by the purchaser), by a deputy surveyor, before the issuing of a final certificate. Before the last act, Congress sold by corners and imaginary lines. What was the evil, under the former laws, which Congress, by section 13 of the act of 1804, and especially the act of 1805, designed to remedy? It was the selling by corners and imaginary lines. And what was the remedy? The actual marking and running the lines. And shall we make the remedy nugatory, worse than the disease, in case of a conflict between the line and corner? Shall the court invalidate the last act under the law, the act of the officer appointed by the law to ascertain and determine the corners and run the lines from them ? Shall the court thrust out and substitute itself in place of the officer, revise his decision as to the corner, reverse the line he has run, and’ reintroduce the mischiefs the act of Congress remedies — the mischief of a sale by corners and imaginary lines ?
    The object of the legislature, in passing the present law, is plain. Corner marks might be effaced, the trees cut down ; there is always great difficulty in finding them; imaginary lines are not clear, distinct, or safe and convenient boundaries between occupants. To provide a remedy for these inconveniences, the legislature provide that the actual lines shall be run. They are run; but in running them, the officer does not comply with the law; he does not run due north or south ; he does not run a straight line between the corners; he does not begin at the corner marked ; all which he is required to do, by the act of 1805; therefore, says the plaintiff, his acts are void, and you are thrown back upon the corners and marks, and imaginary lines, of the law of 1796. The same argument would apply to the proceedings under the act of 1796; and instead of being governed by the survey as made, we should be governed by the survey as it ought to be made.
    The argument, when pushed to its logical consequence, has this extent; it shows the act of Congress of 1805 nugatory, as it insists we are not to be governed by what was actually done under it, but by what ought to have been done. That is, it insists we are not to be governed by the line actually run, but by an imaginary line to be run from, the marked corners, which is exactly the-boundary, and rule to govern, before the passage of the act. I in- - sist that wherever a section line is run, under the act of 1805, the argument of the gentleman places the parties in the same situation as if it had not been run, and as if the act had never passed. The case must be governed, he says, by the corners and *an imaginary line. Such was the law; but I submit whether the act of 1805 is not annulled pro tanto by this construction.
   Judge Lane

delivered the opinion of the court:

The question arising upon these facts is, whether a.corner set in a survey, made under the act of 1796, is so absolutely unalterable, that a subsequent surveyor is bound to adopt it, however erroneous, as an element of later subdivisions, or whether, in Case' the lines of subdivision are so run as to correct the mistake, and the survey and field notes are deposited in the proper office, a-. subsequent purchaser may disregard the completed survey, and extend his boundaries beyond the lines run to the first established^ corner. If the affirmative of these' propositions be maintained,, the defendant will lose two hundred and fifty-two acres of land,, lying on the Scioto bottom, from the three hundred and forty-five acres which he purchased, and the plaintiff will recover two hundred and fourteen acres for which he never paid.

If instruments were perfect, and surveyors entirely skillful, the law which directs corners to be set at prescribed distances, and connected by straight lines of subdivision, might be easily obeyed but so many causes of error attend geodetical operations, that no-minute accuracy, or exact correspondence in the work of different agents, is attainable by any ordinary pains. To prevent disputes,., therefore, it has been a governing principle in the disposition of public lands, since 1796, that surveys, to define the limits and ascertain the quantity of lots, shall be made by officers of the-United Slates, and taken to be correct. As deeds are defined by lines, not by points, corners do not make the boundaries of surveys, although they form the termination and give direction to-the boundary lines. These lines must be run; no survey is complete without them. The statute of 1805 refers to them as necessary parts of'these surveys, and lots can not be identified without reference to the records of these lines, kept in the office of the-surveyor general “for public information ” (Swan’s Land Laws,. 36), or as transmitted to the register by him. It is this actual line which binds purchasers, and to determine this settles the boundaries of lots. This doctrine has beon often before the court. Two cases are reported, and another in Champaign county is recollected, recognizing the principle. Wright, 599, 634.

If a mistaken line may be corrected, so may an erroneous corner. If the plaintiff may insist on amending the errors of Denny, the defendant, with equal justice, may correct the mistake of the first survey, by placing the corner at the prescribed distance. *But all these questions are precluded, when the proof shows no line was actually run between these sections with an intention of marking boundaries, except that which adopts the elm corner. The rule is, in truth, a rule of peace, and' is especially applicable to a purchase subsequent, and in reference to a line run, where the purchaser has obtained all he contracted to buy.

Motion for new trial overruled.

Judgment for defendants.

Note. — In the statement of this case, page 148, at the end of the first paragraph, the following facts were omitted:

“ITield notes of this survey were duly returned to the surveyor-general, and by him transmitted to the register of the district, and are the only field notes showing a line run between these sections.”