text:
    Buck v. Waddle and McGarraugh.

      New Trial — Special Contract — General Counts.'

    If parol contract for sale of lands is not executed by vendor, the money paid may be recovered back.
    Where substantial justice is done by a verdict, new trial will not be granted upon technical grounds.
    This was an action of assumpsit. The declaration contained the common money counts, in support of which the plaintiff offered the deposition of Joseph Ronck, which stated, in substance, that deponent had sold to defendants eight lots of ground, for which they owed him $1,200 ; that the defendants were to pay the money secured by a mortgage on the premises, previously given by deponent to John T. Barr, for about $800. That after that contract, and before the execution of the deed, the defendants told deponent they had sold one of the lots to Samuel Buck, the plaintiff, for $125, and that Buck was to pay the money to the deponent for the defendants’ use; that he had understood from both parties that the defendants were to cancel and lift the mortgage, so that it should have no lien on the lot sold to Buck; that the defendants directed him to make a deed for the lot to Buck, which he did on Buck’s securing the $125 ; that, on a settlement with the defendants, he gave them a credit for the $125 ; that he had no interest in the event of the cause, for Waddle, McGarraugh, and Buck knew the situation of the case as well as he did, and Buck gave him a general release on the 15th July last, and bad since given him a special release. The deed to Buck was a general warranty deed. The releases referred to in the deposition were produced. By the first, “ Buck releases to Ronck, his heirs, etc., all demand in law or -equity against him, by reason of any act of him, said Ronck, to this day.” The second releases “ all right of ^action against him on account of any real estate by him deeded to me, and allow him to convey the same to any one else.” The deposition was objected to, but the court being divided on the question, it went to the jury. The plaintiff then proved the mortgage from Ronck to Barr, and produced the record of a judgment by scire facias on the mortgage, in favor of Barr against Ronck, and an execution on the judgment, by which, it appeared the lot had been sold by the sheriff, and purchased by the defendant, Waddle. A witness-was then called, who proved that after the above transactions a blacksmith wished to rent the lot; that the defendant, Waddle, said Buck had no right to rent the lot till he paid the expense of the sheriff’s deed ; that he could have the lot if he would pay that, expense. He thought Waddle also said that he himself had no right to rent it.
    The second witness testified that Buck lived on the lot at least one year; that he afterward rented it to a person of the name of Legore; that the witness himself had rented it of Buck for ten months, for which he paid him $20 ; that he was still occupying the lot, but under no particular person ; that no one molested him.
    The third, and last witness, testified to the possession of Buck,, and that Wilson had rented from him.
    No testimony was offered to show the plaintiff had divested' himself of the title derived from Ronck, or that he had given notice of his intention to abandon the contract, other than by the-commencement of the suit.
    On this evidence, the,case went to the jury, who found for the-plaintiff.
    The defendants moved to set aside the verdict, and grant a new trial: 1. Because the deposition of Ronck was improperly admitted. 2. Because the testimony presented a case which did not. entitle the plaintiff to a recovery in this form of action. Theeourt were divided, and the decision reserved, etc. .
    King, in support of the motion :
    If the release to Ronck rendered him a competent witness, on the ground of interest, yet his testimony was improperly received,, because irrelevant.
    *The contract between the parties, upon which the action is founded, as proved by Ronck, is a parol contract for the sale of land, and is within the statute of frauds. One stipulation in this contract was, that the defendants should remove the incumbrance of the mortgage. This stipulation remains unexecuted, and the-contract is therefore executory, and no action can be sustained, upon it.

      Upon this latter circumstance the second exception to the plaintiff’s right of recovery in this particular form of action is also grounded. It is agreed -that when a contract is executed, or put an end to by other act of the parties, the money paid upon it may be recovered back in the common counts. But if the contract continue open, he must proceed upon it, and recover damages for the breach. 1 Term, 133. But one party can not, at his discretion, put an end to a contract for any default of the other party. This can only be done where both parties can be placed in statu quo. 5 East, 449.
    In this case Buck agreed to pay Ronck and take his deed. Waddle and McGarraugh agreed to pay off the mortgage, so as to remove the incumbrance. Buck paid Ronck, obtained his deed, and took possession. The defendants did not pay off the mortgage, and in this violated their agreement. But this violation could not give Buck a right to rescind the agreement, and recover back his money. Such a course would not place the parties in the situation they were in before the contract. In virtue of it Buck had obtained and held Ronck’s deed, upon which, after eviction, he could have his action against Ronck. He held, and for some time had enjoyed, the possession. By rescinding the contract, and recovering back his money, he would retain all these advantages. By being put to his special action on the agreement, they would be estimated in ascertaining the damages he should recover.
    But if the facts of the ease would have authorized Buck to rescind the contract, and claim bis purchase money paid, he could not do this by simply suing out his writ. A release of the covenants of the deed, and a restoration of the possession, with an express declaration of abandonment or rescission, ought to have been made. Instead of this he retains both possession and deed to this day. There is no *cáse in which the party must perform a series of acts, in the rescission of a contract, where he has been permitted to abandon it, and recover on the money counts. There is no sound reason or good principle which now warrants such a precedent.
    Leonard, for the plaintiff:
    If we were seeking to enforce a parol contract for the purchase of a tract of land, there might be some force in the objection that the testimony of Ronck proves a case within the statute of frauds. But if money is paid on a parol contract of this character, and the vendor rescinds that contract by refusing to execute it, this objection can. not be urged against the party recovering back the money paid. 5 Johns. 85 ; 20 Johns. 338.
    On the second point, the rule is that wherever there is a special contract not under seal, and the contract is completely executed, the plaintiff may recover in the general counts, and is not driven to a special count. Bank of Columbia v. Patterson’s administrators, 7 Cranch, 303; 2 Saunders, 360, note. Where, also, the defendant rescinds the contract, or where the plaintiff, by the terms of the original bargain, may put-an end to the contract, which he accordingly does, the general counts are sufficient; and the reason assigned by Buffer, in his Nisi Prius, 139, for the rule in the instance where performance has been had, is, that “ performance raises a duty for which a general indebitatus assumpsit will lie.”
    The cases to support the position, that where the contract has been rescinded, general counts are sufficient, to which I will refer the court, are 5 Johns. 85, before cited; Giles v. Edwards, 7 Term, 181; Towers v. Barret, 1 Term, 133; 15 Johns. 475; also, same book, 503. The last case clearly explains the reasons of the rule. A parol contract was made for the purchase of a tract of land, and money paid thereon. In an action brought by the purchaser to recover back the money thus paid, it was determined he should recover, because the contract was void by the statute of frauds, and therefore the money was paid without consideration; and where the contract is rescinded, it is the same as if no contract had ever existed. And it appears *from the cases, that the party may in some instances proceed on the special contract, or on the general counts at his option, as in the case where the plaintiff has fully performed his contract, or where he has partly performed, and been prevented by the defendant from completing the residue thereof; or where he has been entirely hindered by the defendant from the execution of the contract, or where the defendant has only in part completed his contract, and the plaintiff has entirely completed his. In that case, it is at his election to proceed with the special contract, or, treating the contract as rescinded, go on the general counts. Now all contend that in this ease Buck might treat the contract as put an end to, and go on the genoral counts for the recovery of the money. For the purpose of fulfilling his engagement, Buck paid this money for the use of "Waddle and McGarraugh, and obtained a deed. But Waddle and McGarraugh stipulated to extinguish a certain lien existing on the land, with which stipulation they failed to comply. What is this but the case in 7 Term Reports. There the plaintiffs paid twenty guineas; the -defendant in part performed his contract, but not entirely. The court allowed the plaintiff to recover back his money on general counts, the defendant’s neglect authorizing the plaintiffs to consider the contract rescinded. In 15 Johns. 475, the plaintiff sold defendant a quantity of whisky, and defendant paid the plaintiff in certain notes, representing the same to be good. The contract was special, and reduced to writing. The whisky was delivered in pursuance thereof; the notes turned out to be good for nothing. Here the court held the plaintiff might recover on the general counts; the contract was put an end to by the acts of the defendant. The only difference in the last case and this is, ■that there was a misrepresentation, and here a contract. Suppose, in the case now before the court, the defendants had represented there was no mortgage on the premises; that they had extinguished it; then, according to the New York case, the plaintiff might have sustained his action on the general counts. But shall it be said because he engaged to extinguish the mortgage and failed, such counts are not good ? In the caso in 15 Johns, there was a special agreement; but the fraud enabled the plaintiff to treat it as if there had *been no agreement. So here there was a special contract to do a certain act, which act was the consideration of the payment of money; and that act not being done, we are entitled to consider the contract terminated by the defendant, and recover back our money paid as a consideration that has failed. A special count might there have laid on the fraud, and so here on the contract; but we have seen that this circumstance will not preclude us from recovering on the general counts. But if this view of the case is not deemed by the court as satisfactory, there is one which, has always struck me as decisive. Waddle and McGarraugh stipulated to extinguish this mortgage. Instead of so doing they permitted the identical lot to be sold, and the es'tate of Buck therein to be divested, and became the purchasers and claimed the lot as their own by right, interfering with Buck’s exercise of ownership. Have they not by these acts rescinded the contract? Would not their permitting others to have become the purchasers, thus divesting Buck of the identical thing for the purchase of which he paid his money, have been a rescission of the contract ? Suppose we had bought a horse and paid our money therefor, and some other held a mortgage of the horse for a sum of money, and the vendor had agreed to pay off that mortgage, but instead had not only suffered another, but himself had bid in the property on the sale — could not the vendee of the horse, after he was divested of his property, the identical thing, by the vendor, treat the contractas rescinded, and recover back the purchase money? Admit, if you please, that, in case there had been a warranty of the soundness of the horse, and the horse was ailing, that in that case the vendee must resort to a special count; yet where the horse himself, the identical thing for which the purchase money was paid, was taken from the vendee by the vendor, no matter by color of what plausible reasons the act was done, I can not doubt but the vendee might consider the contract as rescinded, and recover his purchase money back again on the general counts for money had and received. See the argument of Erskine in Towers and Barret, 1 Term, 133. See also 5 Johns. 85. I sell you my horse ; I contract to pay off a lien existing on him; the sale of the horse, and the agreement to pay off the lien are one thing; they constitute *the consideration for the payment of the money; you pay me the money; I do not deliver the horse ; you can get back your money most assuredly in an action for money had and received. See the cases before cited. I deliver the horse, but suffer, nay, am active to’ take him from you by the lien ; you are divested of the identical thing for which you paid the money; the whole contract is at an end; it is the same as if the horse had never been delivered. Ton may then most certainly recover back the money you have paid, and are not driven to an action to recover only the amount of injury done you by taking away the horse. The horse may have sunk three-fourths in value, or may not have been worth the one-fourth paid for him. He might suit your taste, and yet, divested of the identical article purchased, you are to recover only the value of that article in the general market. This is Buck’s case exactly, so far as it is a matter now submitted to the court. The effect of the evidence of S. Lurf bourrow and others was submitted to the jury, and lies in their province exclusively.
   By the Court :

We are all agreed that there is nothing in the first ground assigned for a new trial. It is well settled in New York and in Kentucky, that where money is paid upon a parol contract for the -sale of land, and the vendor refuses or neglects to execute the contract, the money paid may be recovered back, and this stands upon too plain a principle of justice to be disputed.

Upon the second ground assigned, a majority of the court is of opinion that a new trial ought not to be granted. The defendants contracted to remove the lien of the mortgage from the lot they sold. They did not do so. On the contrary, they possessed themselves of the paramount title derived under the lien they agreed to extinguish, and refused to confirm it to the plaintiff unless he would make a new purchase. For the principle upon which they could demand a dollar for making a new deed, is none other than that having it in their power, they would insist upon a new bargain-Whether this amounted to an abandonment of the first contract was left to the jury, who have found in the affirmative. It is not pretended but that upon a special *count, rightly framed upon the contract, the plaintiff ought to have recovered. Substantial justice has therefore been done, and where that is the case, a new trial ought not to be granted.

Judge Burnet’s

dissenting opinion:

In stating the reasons that have induced me to dissent from the opinion expressed by the court in this case, I shall confine myself to the second reason filed for a new trial, viz: that the testimony does not support an action for money had and received. The ease appears to be this. Ronck, being the owner of certain lots in the town of Washington, mortgaged them to Barr, and afterward sold them to the defendants, who agreed to satisfy the mortgage. The defendants afterward sold one of the lots to the plaintiff for one hundred and twenty-five dollars, who, by the agreement, was to pay the purchase money to Ronck, and receive from him a deed, the defendants promising to discharge the mortgage. The plaintiff paid the purchase money, and received his deed, according to contract. The defendants did not satisfy the mortgage, as they were bound to do, in consequence of which the lot was sold on a judgment obtained on the mortgage, and purchased in by one ■of the defendants for the benefit of the plaintiff, who was required. to pay tbe expense of drawing the deed. The plaintiff took possession of the lot at the time of the contract, lived on it himselfj and rented it to different persons.- He still holds the deed; he has-not restored the possession to the defendants, or offered to do so; nor has he given notice that he considered the contract at an end. On this state of the case, the question to be decided is, whether he-can now recover from the defendants the money paid to Ronck in an action for money had and received. It is well settled that an action of assumpsit may be sustained on a sale, either for the price-of the thing sold, or to recover back the purchase money, when there is a defect in the article sold, or a fraud in the vendor. It is-also settled, that in every sale the vendor is supposed to have a good title, and if it turns out that his title is defective, the vendee may waive the contract, and recover back the money paid; and it is admitted that this principle applies to contracts for the sale of real estate, as well as of goods *and chattels. 5 Burr. 2639;. 2 Black. 1078. In the case before us, it appears that the lot sold to .the plaintiff was incumbered by a mortgage, of which he had notice, and in consequence of which it was afterward sold by the sheriff. The plaintiff, therefore, had a right to waive the bargain, and recover back the purchase money, unless his title had been otherwise secured. Without stopping to inquire whether the-offer of a deed from the sheriff, on condition of paying the sura of one dollar, under the circumstances of this case, was not such a. security of title as would bar him from tbe right of abandoning the contract, I will proceed to the inquiry, whether he has in fact waived the bargain, so as to entitle himself to this action, or whether,, as the case stands, he was not turned over to his s¡Decial action on the contract. In cases where the article sold has not been delivered, if there be a defect in the thing itself, or a fraud in the vendor, the vendee, by giving notice that he declines the bargain, may recover back his money in this form of action. But if possession has been given, the action for money had and received can not be maintained till the thing purchased has been restored; for till that be done, the contract is not at an end; it remains open, and the proper remedy is an action founded on the contract. Until the contract be terminated, its stipulations are matters that may be controverted. A contract may contain a warranty, or, as in this case, a promise to remove an incumbrance, and while the contract remains open, these stipulations may be disputed, but they can not be tried in this form- of action. The plaintiff must resort to - the contract. In the case of Towers v. Barrett, 1 Term, 133, this action was sustained, but it was on the ground that tho property purchased had been returned, and the contract thereby terminated; and it was admitted in that case, that while the contract continued open, the plaintiff could only recover damages, and that for that purpose he must state the special contract, and the breach of it. It was also said by Justice Buller, in that case, that if the plaintiff intended to recover back his money, he must rescind the contract, byreturning the property in a reasonable time, otherwise he will be put to his action for damages on the special contract. Weston v. Downes, Doug. 23, was an action for money had and ^received. The plaintiff was nonsuited by Lord Mansfield, on the ground that there was a special contract, and that the defendant ought to have had notice, by the declaration, that he was sued on that contract. Buller, Justice, observed that the action would not lie, because the defendant had not precluded himself from entering into the contract by taking back the horses, and that when the contract is open it must be stated specially.

In Power v. Wells, cited in the last case, the defendant had warranted a horse sound, which proved to be unsound. The plaintiff having tendered a return of the horse, which was refused, brought an action for money had and received, to recover back twenty guineas paid on the contract, and it was held by the court that the action would not lie. The distinction seems to be clearly settled that when the contract has been disaffirmed, and the property restored, assumpsit will lie to recover back the money paid, but where the contract is open, or the property remains in the hands of the vendee, t.he action must be on the contract itself. In this case there is nothing in the evidence from which an inference can be drawn that the contract was terminated. On the contrary, it appears to be open, and subject to litigation. The plaintiff accepted, and still holds a general warranty deed for the lot, which is an affirmance of the contract. He was put into possession, has occupied and rented it, and the person now in possession is his tenant, holding over. The evidence of the first witness is nothing more than the expression of an opinion, by one of the defendants, that the plaintiff was liable to pay the expense of the sheriff’s deed, and that he had no right to rent the lot till he had done so, or, in other words, that the plaintiff was bound by the bargain to do something more than he had done. This language, so far from conveying an idea, that the contract was at an end, could only have proceeded from a conviction that it was opened and disputed. The import of it seems to be, that Waddle, having purchased in the lot, to quiet the title, the plaintiff ought to pay the expense of the deed, as, by the contract, the deed was to be made by Ronck, without expense to the defendants. If Waddle had believed that the contract was at an end, his language must have been very different. But whether this opinion of Waddle *was correct or not, does not alter the case. The interest to be drawn from it is still the same, that the contract was open and disputed. If it be admitted that the release to Ronck has discharged the action of covenant, so as to make him a competent witness, it does not divest the plaintiff of his claim of title, nor of his possession. He may still consider Waddle as his trustee, and by a decree in chancery, require him to convey the right derived from the sheriff. The existence of such a remedy is a complete negative to the pretense that the contract is' closed. The general rule on this subject is, that if there be a special contract it must be declared on. The safety of the defendant requires that he should be informed of the real ground of action. Should this rule be dispensed with, he may be surprised at the trial, and subjected to a judgment that might have been avoided, had he known in time the nature of the plaintiff’s claim. He may also be exposed to the danger of a second recovery for the same cause. In Wear v. Burroughs, 1 Stra. 648, the plaintiff declared on a special contract, and also on an indebitatus assumpsit. At the trial he proved a special agreement, but variant from the one declared on, and the chief justice would not permit him to have recourse to his general counts. The same principle will be found in 1 Ld. Raym. 735; 1 Term, 447; 4 Term, 314. The plaintiff, in this case, having omitted a special count altogether, can not be in a better situation than if he had stated a special contract, and proved one different in substance from that which he had set out The omission is as fatal as the variance and on the same principle.

See note A, at the end of the volume.


source: Caselaw Access Project

author: *By the Court :

license: Public Domain

text:
    *Ayres v. Harness.

      Seal and Signature in Blank.

    -An obligation to pay money written over a signature and seal made in blank is not operative.
    This was an action of debt brought upon a sealed bill, and the •case made by the pleadings and submitted for the decision of the court was as follows:
    The defendant, Harness, being indebted to the plaintiff a sum of money, the exact amount of which was not ascertained, made his seal and wrote his name in connection with it, upon a blank sheet of paper, and authorized the plaintiff to write over it a note for the sum found to be due, and the subscribing witness attested this sealing and subscribing. The paper thus signed and sealed was delivered to the plaintiff an entire blank, who wrote over it, "the note upon which the suit was brought, for the sum due, according to his agreement,'which it appeared was by parol.
    The causo was originated in Ross county, and was adjourned ■here for decision from the supreme court sitting in that county.
    Bond and Creighton, for the plaintiff:
    It is well settled that if a person write his name on a blank paper, and deliver it to a third person, to write a promissory note over the signature, such note is obligatory upon the maker, although written when he was not present, and never after assented to by him. Doug. 514 ; 5 Cranch, 142.
    This is but a promissory note, and its character is not varied by the fact that it is written over a signature to which a seal is Attached.
    Bonds executed in blank have been held to be the deeds of the person executing them. 9 Cranch, 28; 5 Mass. 538. It can not be material whether the name be written upon an entire blank, or, as in the cases cited, subscribed when some material part of the body of the instrument was to be filled up.

      Leonard, for the defendant:
    The writing upon which this action is brought is a deed, and is therefore entirely distinguishable from bills of ^exchange and promissory'notes. By the commercial law these may be writ-, ten over a signature upon a carte blanche, and will be binding.
    Notes thus executed are mere evidences of parol contracts, and when declared on, and produced at the trial, they aré only received as evidence. When the manner of their execution comes to b© explained orally, the explanation is perfectly consistent, with their-nature and object. The whole testimony only makes out one entire contract by parol.
    A deed stands upon a different doctrine; it must be written,, sealed, and delivered. “If,” says Sheppard in his Touchstone, page 54, “a man seal and deliver an empty piece of paper, or parchment, albeit he do there withal give commandment that an obligation or other matter shall be written in it, and this is accordingly done, yet this is no good deed.”
    The case here put, is the very case before the court, and if the-plaintiff recover, it must be because this ancient doctrine is overruled. No authority of this kind has been produced. The cases from 9 Cranch and 5 Mass, are of a different character. In these-cases bonds were written and only left blank in some one particular. In the latter case, the court say expressly that the bond would have been good, if the blank had not been filled up. In the first a new obligor was substituted by erasing the name of one of the original obligors, both in the signature to, and body of the bond. This was done with the consent of the other obligors, and the court held that the bond was not thereby destroyed as to the other obligors. In these cases no just inference can be deduced that a seal and signature to a blank paper could warrant a third person to write a bond over them.
    Brush and Fitzgerald, on the same side:
    If parties can seal and deliver a carte blanche that will bind* them in one case, it must by the same rule bind them in every other; not only a note for money, but indentures of lease, deeds of conveyance, bonds for the sale of real estate, may be thus executed, and the whole doctrine of deeds may be subverted. The-plaintiff’s counsel admit that their doctrine ought not to prevail with respect to deeds for land; upon what principle do they make-a distinction ? The *seal hinds for the payment of money absolutely; the consideration can not be controverted. So the1 conveyance of land transfers the title absolutely. The same consequence and conclusion are involved in both eases. . And the law must be the same as to both. A parol agreement may be written-over a carte blanche, but a deed can not be so written. The law has long been so settled, and ought not to be changed.
    Hammond, in reply:
    There is a wide difference between a deed which constitutes a grant, and one which contains an obligation to pay money or to do some other act. In the first case the deed is an effective operative instrument; in the second, it is but the highest evidence of a contract. In both cases the deed is based upon contract, and in some sense is only matter of evidence. But in the first case it transfers rights per se, while in the second it evidences an obligation to be thereafter performed. There is a palpable absurdity in treating instruments of' writing So distinct and different in their character as of the same class, to be examined and decided by the same rules.
    It is conceded that if a man write his name upon a blank paper and deliver it to another, with a verbal authority to write over it a promissory note for the payment of money, and such note is written, the note is valid. This note, it is alleged, is a mere evidence of a parol contract; that in a suit, the contract must be declared on, and the note introduced as evidence, upon which the jury may find the contract.
    In considering this argument it must be remembered that negotiable notes import a consideration, and may be declared on without setting out the original contract. In this respect they have the same effect with a specialty, and yet the argument admits that notes of this character written over a signature in blank are obligatory. In the case of Dugan v. Campbell, 1 Ohio, 115, this court determined that all promissory notes might be declared upon, as-importing a debt, without reference to the original contract. These facts demonstrate that there is no distinction between promissory notes and specialties. The reason which admits or forbids the principle allowing a note to be written over a signature, is the same in both eases.
    *The law has determined that certain rights shall be transferred only by a deed in writing, executed in a particular manner. 'There is strong reason why parol proof should be received of .an authority, whereby one man should execute those writings in the name of the other. The authenticity and validity would be placed upon insecure grounds. The very reason of requiring written instruments, executed with peculiar solemnity, would be defeated. Not so where the right may pass, or the obligation be ■created without any particular solemnity.
    A promise to pay money is valid when made by parol, as when made by note under seal. In the,latter case the note is evidence of debt, but it is not evidence which can not be defeated by matter in pais. As the debt could be created by parol, so an authority to make the written evidence of its creation may rest in parol. No principle is violated; no right endangered; because the whole subject might be created by parol, and be obligatory as if .reduced to writing. Neither the writing nor the seal are indispensable to the existence of the right in the person claiming it.
    There is no good sense in the distinction between specialties .and simple contracts, where they both relate to executory agreements. All the reasons upon which the distinction was originally founded have ceased, and the court ought not to preserve it. There is no necessity for a legislative act to abolish it, any more than there was for overruling the doctrine that a promissory note, not negotiable, could not be declared upon, as of itself importing a debt.
    In principle there can be no difference, whether the seal and signature be affixed to a paper entirely blank, or to one in which some material part is blank, and must be filled up before the deed can operate. The opinion of Judge Parsons, 5 Mass. 538, is full to the point, that a party executing a bond, with material blanks in it to be filled up, agrees that this may be done, and that the filling up, gives validity to the bond. The cases he refers to support this doctrine, and he certainly adopts it as recognized by the court of Massachusetts. The case is decided upon this ground, although it is added that upon another ground the case was with the plaintiff.
   *By the Court :

The ancient law was well settled that a valid deed could not be made by writing it over a signature and seal, made upon a blank or an empty sheet of paper. We know of no decision by which this ancient doctrine is overruled. The case cited by the plaintiff’s counsel are of promissory notes not under seal, and of deeds where all the material parts were written at the time of making the signature and seal. They are not analogous. An authority to fill one particular blank falls far short of an authority to make an entire deed. While the distinction between contracts under seal and parol contracts is preserved by our legislature, and by our courts, the different modes of executing them must also be preserved. We are accordingly of opinion that the writing in this-case can not be operative, and that the judgment must be for the defendant.


author: By the Court :

text:
    George Turner v. Crebill and others.

      Final Decree — Notice.
    Sinai decree in equity is not notice to a subsequent purchaser.
    The facts of this case were as follows: Before the first Tuesday of August, 1807, the complainant prosecuted a bill in chancery, in the common pleas of Hamilton county, against one A. King and M. Williams, to obtain the assignment of a certificate for the tract of land now held by the defendants. At the August term, 1807, a decree was pronounced by the common pleas, from which an appeal was taken to the Supreme Court.
    On the 22d day of September, 1808, the Supreme Court decreed that King and Williams should assign the certificate to Turner;, but the decree not to be operative if the complainant did not pay to King a certain sum of money by the first day of June, 1809, provided King and Williams should at any time before that day assign or tender an assignment of the certificate.
    King and Williams did not tender an assignment of the certificate, nor did Turner pay the money by the first day *of £373. June, 1809. Sequestration was ordered to enforce the decree, which was not executed.
    Williams carried the certificate into grant, and conveyed the> land, part in 1810, and part in 1813, to the present defendants,, who had no notice of the decree in Hamilton county, or of the complainant’s claim.
    On the 1st day of June, 1814, Turner paid the money into .the ■clerk’s office of the supreme court in Hamilton county, and upon motion obtained a writ of possession for the land. This writ was superseded. Turner then prosecuted a bill against the defendants, to enforce against them the decree in Hamilton county, charging that they were lite pendente purchasers and other ways had notice. The ■defendants denied notice in their answers, and the complainant’s bill was dismissed by the supreme court in Champaign county. Upon this decree of dismissal the present bill of review was prosecuted in the supreme court of Champaign county,'and adjourned for decision to this court.
    Cooley, for complainant:
    The decree in Hamilton eounty directed the certificate to be assigned and the money paid at a future day. Until these acts were performed it could not be final. In Worsley v. The Earl of Scarborough, 3 Atk. 361, Chancellor Hardwicke says that “ a decree to account is not such a one as puts a conclusion to the matter in question; there is still such a suit as affects people with notice of what is doing.” So, in this case, a “conclusion was not put to the matter in disputea writ of habere facias was awarded in 1814. By the very terms of the decree it was at the will of either party to defeat its operation. If, upon tender of the assignment, Turner failed to pay the money, King could only proceed by proof of the fact and motion to dismiss the bill. If upon offer of the money, King or Williams refused to assign the certificate, the party must call upon the court to take further order to secure him his rights. The orders made subsequent to September, 1808, are conclusive that the decree was not final. Consequently the defendants purchased pending the suit, and are not protected as 'purchasers without notice. The original decree is erroneous, and ought to be reversed.
    *Bacon, for defendant:
    The decree of the supreme court of Hamilton county, rendered in 'September, 1808, was a final decree. All the rights of the parties are fixed and determined by it. No further act is to be done by the court. The parties only are actors. Costs are decreed against one of the parties, which is only done upon a final .decree. "Where a decree is merely interlocutory, the cause is ordered to stand over, or be continued for further proceedings. There is no such order in this case.
    The proceedings in Ross county were such as are used to enforce a final decree, and such was their object. So the order to issue a habere facias in 1814, could only be founded upon the fact that the decree was final.
    In the cases cited from 3 Atkins, 361, by the opposite counsel, Lord Hardwicke expressly declares that a final decree is not notice to a purchaser. As the decree in question here was final, there is no ground to disturb the decree upon which this bill is prosecuted.
   By the Court :

"We can not doubt but that the decree made in Hamilton county in September, 1808, was a final decree between the parties to it.

The subsequent orders were such as are usually made to give effect to a final decree, and can not lead to a conclusion that any of the original matters litigated in the suit were still open to be decided.

It is well settled that a final decree is not notice to a purchaser. It is not pretended that the purchaser had actual notice.

The bill of review must be dismissed.


author: By the Court:

text:
    *Botkin, Kellar, and McNeal v. Commissioners of Pickaway County.

      Judgment — Amendment.
    Pinal judgment is not amendable at a subsequent term, except in matter of form.
    This case came before the court upon a writ of certiorari to bring up certain proceedings before the common pleas of Pickaway county. An action of debt was brought in the name of the commissioners against Botkin, Reliar, and McNeal, securities in a sheriff’s bond. At April term, 1820, judgment was rendered for the plaintiff. Instead of directing execution to issue for the sum due, the judgment was worded to be discharged by the payment of so much money.

      At July term, 1824, notice was given to the defendants that a. motion would be made to amend the judgment; upon this motion the court of common pleas directed the judgment of April term, 1820, to be amended, by striking out the words “to be discharged by the payment of,” and inserting in their place, “ and that execution issue thereon for.” To reverse this order of amendment, the certiorari was sued out, and the decision adjourned to this court by the. supreme court-of Pickaway county.
   By the Court:

The order of the common pleas of Pickaway county must be-reversed. The court of common pleas have no authority to amend a final judgment at a term subsequent to that in which it is rendered, except in mere matter of form. The alteration made in this judgnent was in a material and substantial, and not, a formal circumstance.


text:
    *Stephen McDougal and others v. Alexander Holmes and others.

      Banks — Assignees—Payments.
    The defendant, Holmes, was president of the Granville Alexandrian Society, which had for some years issued bills, discounted notes, and transacted business as a bank. The complainants, having become borrowers, gave their joint note to Holmes, who received it for account of the society. In October, 1817, judgment was rendered on this note, and upon this judgment several payments were made to the society. In May, 1820, the judgment was. assigned for the balance due upon it to the other defendants, who refused to receive the paper of the bank in discharge of it. The bill was prosecuted to compel them to receive it, charging that the assignment was only in trust for the bank, and claiming that if it were not, still the assignees were bound to receive the paper in payment.
    The answers denied that the assignment was a trust, and stated that the assignees were the real owners; and upon this state of fact the cause was adjourned here from Licking county for decision.

      Ewing, for complainants:
    We maintain : 1. That on the 5th day of May, 1820, previous to the assignment of the judgment to Granger, the complainants had a right to discharge the judgment by the payment of its amount in notes of the Granville Alexandrian Society; and 2. That this right was not divested by the assignment.
    1. Bank notes have for many years past been almost the only circulating medium of our country. They are in law and in fact considered as money; they pass by a devise of all the testator’s moneys, and a tender of bank notes in payment of a debt is good, unless specially excepted to by the creditor. , And on principles of equity at least, the banker has no right to object to his own notes where tendered in discharge of a judgment, which was founded on a contract for the loan of the same identical money, He charges his debtor on a count for money lent; the defendant can not ^gainsay the fact, that the bank notes which he borrowed were money ; much less, then, should the banker who loaned ■ it as money, who pledges his faith that he will redeem it as money, be permitted to question it when tendered to him in discharge of a debt of which it was the subject.
    Our statute of the 5th of February, 1819, merely settles what 1 conceive to have been a clear principle of natural, if not of judicial equity, before its enactment. 17 S. L. 128, 129.
    It applies as well to judgments which were rendered before its enactment, and which were at that time unsatisfied as to judgments which should be thereafter recovered. The expression of the act “ in all suits or actions prosecuted,”, is as general as language can make it; the passive participle, “prosecuted,” which is here the operative word, has no reference to time, but depends entirely upon the tense of the auxiliary verb, which may be connected with it, to fix its relation. Standing alone, it applies alike to the past, the present, and the future. Had the legislature intended to confine this proviso to future judgments, the appropriate expression (“ which shall be hereafter prosecuted ”) would hardly have escaped them; but if it were intended to extend to all cases which had been, and which should thereafter be prosecuted, they have used appropriate language to convey their meaning. The single word “prosecuted,” is entirely equivalent to the paraphrase which shall have been, or which may hereafter be prosecuted. This construction is strengthened by the general expression in the fifth line of the proviso: “ The sheriff upon any execution in his hands,” etc. Here .■again, had it been the intent of the legislature to limit this proviso, ■such limitation might have been aptly introduced by adding the words, ‘‘issued on any judgment which may hereafter be recovered.” But the expressions are general, and the act seems to have been intended to apply to all cases where an individual was indebted 'to a bank, whether the debt were reduced to judgment or not, and that its object was to enable the debtor to discharge such debt in that kind of money which was the subject of the original contract. Nor do I apprehend that this provision of the statute impairs in anywise the validity of private contracts. It merely gives a set-off where it could not otherwise have *been had without a suit at law, or application in chancery. On the whole we think ourselves safe in the conclusion, that at any time before the assignment to Granger, the judgment debtors had a right to satisfy that judgment by paying its amount in notes on the Granville Bank, and that such notes were a legal tender to the sheriff holding an execution on such judgment.
    2. Was this right impaired by the assignment of the judgment?
    The transfer of an instrument negotiable in law conveys no greater interest than was vested in the assignor. If the instrument or right be not negotiable, the equity, only, of the assignor is vested in the asssignee — and what was the right of the bank by virtue of this judgment? To collect on execution the amount of the judgment in their own notes, which were worth twenty-five cents on the dollar; they could transfer nothing more to their assignee.
    Perhaps, by the mode pointed out in the third section of the act, this judgment might have been transferred and free from the privileges claimed under this proviso, but that mode has not been pursued. Indeed, the regulation under which creditors are allowed to attach the credits of the bank, negative, by strong implication, the rights claimed by the defendants under this voluntary assignment. It is specially provided, that the directors, or those who have been directors, shall be first proceeded against. Consequently if they have sufficient funds of the bank in their hands, the process would not interfere with the mutual rights of the bank and their other debtors. But to evade the effects of this statute, a board of directors, who were largely indebted to the bank, would doubtless be very ready to assign the debts of others to a creditor who should threaten them with an attachment, that they might themselves make payment of their individual debts in their own 'depreciated paper. Against this and the like abuse, the law was intended to guard.
    Goddard, for the defendants:
    The complainants ask the court to exercise the novel jurisdiction of offsetting a simple contract debt due them from the person in whose name the judgment is rendered against a bona fide ■assignee of the judgment, and this ^without any suggestion of the insolvency of the party indebted to them.
    Courts of law sometimes set off judgments against each other, in the exercise of an equitable jurisdiction, and in analogy to the -statute of set-offs. But the case presented must always show, not only a judgment in favor of each party, but in the same right. Chief Justice De Grey, in the case of Barker v. Braham, is particularly guarded in his language: “I am for allowing the present motion, but desire it may be remembered that this is the case of one judgment against another, both in the same right, and must be distinguished from setting off private debts, not in suit, and upon which no judgment has been obtained.” Courts of equity have heretofore exercised no other or greater jurisdiction on the subject of set-off than courts of law, with one single exception: .and that is in the ease of the bankruptcy of a party in England; they set off joint and separate debts, which can not be done at law. 2 Bl. 860.
    The complainant’s case is not strengthened by the fact that the judgment was rendered in favor of a banking company. The statute on this subject relied upon was intended to compel companies, whose notes had passed as currency, to receive these notes in payment of debts due to themselves. And if wo confine the operation of the act to this object, it is a remedial and highly beneficial statute. But extend it as the complainants require— permit a debtor of the bank to pay its bona fide creditors, to who'in it has assigned the debtor’s note or judgment (and it matters not which in equity) in notes of the bank, and the statute is rendered productive of unjust and inconvenient consequences.
    Indeed, the legislature intended to guard against this injustice. “ In all suits prosecuted by a bank or banker, or those claiming as their assignees or under them, in any way for their use or benefit.” And again: “ If such bank or banker, their or his assignee, or other person, suing in trust for the use of such bank or banker, shall refuse,” etc., expressly confining the operation of the statute to those assignees who, by covin, should prosecute for the use of the bank, and intentionally saving to bona fide creditors of the bank the right to receive assignments of their claims against other ^persons, and to sue them, and collect them in specie. The statute did not intend to prohibit a banking company from paying its debts with the debts due to it, but it intended to prohibit speculation and knavery in the officers and managers of those institutions.
    The complainants, perhaps, meet us here by saying that this suit was confessedly prosecuted by Holmes for the use of the bank, and therefore comes directly within the statute. The force of this observation is completely met by a comparison of dates. The judgment was rendered 8th October, 1817, and amended 13th July, 1818, The statute was passed 5th February, 1819, and this section took effect 4th July, 1819. The assignment to Granger was made 5th May, 1820, and the tender of Granville paper the 17th February, 1821. So that the complainants can hardly be said to come within the letter of the statute at all; and the equity of the statute surely saves the right of a bona fide assignee of a judgment,, as well as of a note, bill, or bond.
    On the whole, the defendants seem to have given the true construction to this statute; while the judgment stood for the use and benefit of the bank, the paper of that bank was received in payment. But when the complaints become negligent, and the bank being pressed for payment by a bona fide creditor, they assigned the judgment fairly and without fraud to that creditor, the paper of the bank was no longer received, and could not be without defeating the object of the statute.
   For opinion of the court, see the case of Pancoast v. Ruffin and others, post.


text:
    *Jonathan Pancoast v. William Ruffin, Sheriff, and the President, Directors, and Company of the Bank of the United States.

      Banks — Assignees—Payments.
    Where a hank has, bona fide, parted with all interest in a debt contracted with it, the debtor can not pay the assignee in the paper of the bank.
    This was a bill in chancery, in which the complainant charged that on the 20th June, 1820, he gave his note to the Bank of Cincinnati, payable in sixty days, upon which note a suit was brought by the bank, and a judgment recovered. That this judgment was afterward assigned to the Bank of the United States. That execution was sued out upon it and placed in the hands of SheriffRuffin to be executed. That complainant offered and tendered to said sheriff the amount of the debt and interest in the notes of the Bank of Cincinnati, which, at the request of the Bank of the United States, he refused to receive, and was about to proceed to levy the execution upon the complainant’s property, by the sale -of which he would be greatly injured. It further stated that the notes of the Bank of Cincinnati were brought into court with the bill, and prayed an injunction, which was allowed.
    To the bill the defendants demurred generally, and the decision upon the demurrer , was adjourned from the supreme court of Hamilton county to this court.
    Este, in support of the demurrer:
    The defendants insist that the sheriff is not bound to receive the paper in discharge of the execution.
    The statutory provision relied upon is in the following words: “ Provided always, that in all suits or actions prosecuted by a bank or banker, or persons claiming as their assignees, or under them in any way for their use or benefit, the sheriff, upon execution in his hands, in favor of such bank or banker, their or his assignee as aforesaid, shall receive the note or notes of such ■bank or banker from the defendant in discharge of the judgment; ;and if such bank or banker, their or his assignee or other persons suing in trust for the use of such bank or banker, shall refuse to» receive such notes from the sheriff; the sheriff shall not be liable to any proceedings whatever, at the suit or upon the complaint of the bank or banker, their or his assignee as aforesaid.”
    *It is clear that the privilege of the debtor to pay in the paper of the bank or banker exists in all cases where the suit is brought for the use of the bank or banker. The question is whether it exists in the case of a bona fide assignee of a note or judgment.
    The following reading of the proviso is submitted as the just and correct one:
    In all suits prosecuted by a bank or banker for their own use- and benefit, or by persons claiming as their assignees for the use or benefit of the bank or banker, or by persons claiming under such bank or banker in any way for the use or benefit of such bank or banker, the sheriff shall receive the notes of the bank or~ banker. The words them and their throughout the proviso, although not grammatically correct, certainly refer, wherever either is used, to bank or banker. All suits brought for their benefit, unquestionably means for the benefit of the bank or-banker. This is confirmed by the latter clause of the provision: “ That such bank or banker, or other persons suing in trust for the-use of such bank or banker,” not for the use of such assignee or assignees. If this construction be correct, it was the intention of the-legislature not to extend the privilege oí paying in the paper of the bank to any case where the suit was not prosecuted for the-use of the bank, whether in the name of the bank itself or by an assignee.
    Hammond, for the complainant:
    The statute under consideration provides for three distinct classes of cases:
    1. Where a bank or banker is plaintiff without any regard to-the use for which the money is to be recovered.
    2. Where the assignee of a bank or banker is plaintiff, no matter for what use the suit is brought.
    3. Where any person sues claiming under a bank or banker, in any way for their use or benefit.
    The interpretation set up by the defendants confounds all those-separate classes of cases, and requires the statute to be read, as if every member of the sentence was connected by a conjunction* The reading is this : All suits or actions prosecuted by a bank or banker in any way for their benefit, and in all suits or actions, prosecuted by any ^persons claiming as their assignees, for their benefit, and in all suits or actions prosecuted by any persons claiming under them in any way for their benefit. This reading is at variance with the terms used, and the natural construction of the words. It attaches a qualification to the whole, which is unreasonable and absurd. ■
    When the bank sues, and is the plaintiff upon the record, the defendant is not to be put to proof that the suit is for their own benefit. The absolute right is in them, and that is sufficient. If by suggesting a use or benefit in another, the statute could be evaded, and its provisions rendered inoperative, its enactment would have boon worse than idle. The legislature have used plain terms — wherever the bank is the plaintiff, there it shall receive its own notes in payment.
    This provision might have been evaded by the bank assigning its notes to others, and to prevent this the act attaches the same consequence to a suit prosecuted by an assignee. When an assignee is plaintiff on the record the right is in him absolutely, and if he claim in this character of assignee then the statute also attaches.
    The full object of the legislature was not affected by this provision. It was conceived that banks and bankers might contrive some method of suing where neither themselves nor their assignees would be plaintiffs on the record. To meet all such cases, whatever disguise they might assume, the third provision is made, and the law is extended to all suits prosecuted by persons claiming under banks or bankers in any way for their benefit. Every possible form of suing is thus provided for. And to every possible form of suing it is contended that the legislature meant to extend the law.
    The circumstances of the country, upon which this law was intended to operate, must be taken into consideration in determining its true meaning. Banks and bankers had been for some time driving a trade in credits. They exchanged their own notes, containing a promise to pay money on demand, for the notes of others promising to pay money at a day certain. At the time of exchange, the bank or banker did not intend to pay money for his note on demand. Nor was it expected that the other party would take up *his note when due, by the payment of money. The notes of banks and bankers were scattered over the country, and in consequence of disregarding the engagement on their face, to pay them when demanded, they greatly depreciated. The individual notes given for them were retained by the bankers, and preserved their nominal value. In this state of things to permit the banker to enforce payment, and reject or refuse to receive his own notes, would be holding out an inducement to him to increase the discredit of his paper, that he might purchase it up for a trifle, and make a clear speculation of the difference between the amount at which he issued it and the amount at which he redeemed it. It was just that he should receive his own paper in payment, and it was the policy of the legislature to make these floating credits liquidate each other. This could only be done by closing the door against all contrivances to convert the one into money, and leave the other afloat. Were, the law ambiguous, it would be the duty of the court to favor the interpretation that would effect its object; but when the most obvious sense of the terms requires that they should be thus understood, it would violate all sound rules of construction to seek for a different moaning.
    A strange notion has of late possessed some very able jurists, that the remedy enters into, and is of the essence of the contract, so that any legislative variation of the remedy which tends to delay the party plaintiff from enforcing his judgment, impairs the obligation of the contract, and is, therefore, in our government, inoperative. It is not necessary here to combat this fallacy. The act which we seek to enforce took effect on the 1st June, 1820, and the bill charges that the contract was made on the 20th of that month. It is, therefore, the law that provided the remedy when the contract was made, and the case can not be affected by the principle referred to.
   By the Court :

This caso, and that of McDougal and others v. Holmes and Others, depend upon the same principle — the just construction of the “ act to regulate judicial proceedings where banks and bankers are parties,” etc.

*The first seven sections of the act are employed in making provisions to enable those who are creditors of banks or bankers to secure their claim. For this purpose such creditors are authorized to attach the debts due to the bank or banker in the hands of ■their debtors, and thus secure the credits of the institution for the liquidation of its debts.

The eighth section relates to proceedings between the banks and their debtors. Its first enactment gives to the bank or banker a more simple method of. suing for its debts secured by indorsement ; the proviso or latter clause of the section secures to the debtors of the bank or banker, in certain cases, the privilege of paying the debts they owe to a bank or banker in the bank paper issued by the institution with which the debt was contracted. This privilege extends only to a case where the suit is prosecuted against the debtor, in any way for the use and benefit of the bank or banker. It can not consistently with the other parts of the statute be extended further; for if the construction contended for by the complainants were adopted, all the beneficial effects of the pre-vious sections would be defeated by the eighth. The creditor of the bank, after he had been at the trouble and expense of prosecuting his attachment, and obtaining judgment against the debtor to the bank, and when he hopes that he is about to receive the fruits of his trouble and expense, is paid off with the paper of the same bank, and finds himself, after all his pains and losses, just where he started.

Statutes should be so construed as to give effect to the intention o'f the legislature, and, if possible, render every section and clause effectually operative. In this act the intention of the legislature is manifest; it is to aid both the creditors and debtors to banks.

It can not be rationally supposed that it was intended to hold ■out encouragement to claimants to prosecute for their claims under the provisions of this act, and then mock them and disappoint their just expectations. Such trifling ought not, and can not, be imputed to the legislature.

The terms in the eighth section to which the parties give a different and directly opposite construction are these: “ That in all suits or actions prosecuted by a bank or banker, or persons claiming as their assignees, or under them in any way for their use and benefit.” ■The complainants insist that the disjunctive ^conjunction or separates the sentence so as to form three distinct classes of cases, in which the rights of paying in the paper of the bank is secured,; so that an assignee is obliged to receive the paper although the bank has no interest in the debt assigned.

This construction is founded upon a mere grammatical criticism, which is never received to change or control the intention of the legislature, where that intention is otherwise clearly expressed. Something may depend upon the punctuation in the statute book, which may be incorrect, and ought neyer to vary the true sense. X/eave out the comma after the word “ assignees,” and the plain construction is, that the after words 11 for their use or benefit,” apply to each preceeding clause of the sentence. This is believed to be the correct interpretation, either with, or without the comma, and perfectly consistent with the reason, the justice, and the spirit of the act. When, therefore, the debt has been bona fide assigned, and the bank has no interest left in it, the assignee is not bound to receive the notes of the bank in discharge of it.

Bills dismissed with costs.

Judge Burnet dissented.


text:
    John Innes v. Reuben Agnew.
    Seizin— Warranty.

    The act concerning actions for covenants real does not extend to a deed containing a covenant of seizin as well as of warranty.
    A declaration on covenant of warranty must aver eviction.
    This was a writ of error to the common pleas of Muskingum county, in an action of covenant, in which judgment had been rendered for the plaintiff, the now defendant in error.
    The declaration set forth a deed for the conveyance of a lot of ground, containing covenants of seizin of general warranty, and against incumbrances. It assigned as breaches that the grantor was not seized. That he did not warrant and defend the premises against all claims, but that on the contrary the legal title, at the date of the deed, was in one Pierce. That the premises were incumbered with a mortgage, *and that the mortgagee had prosecuted a scire facias, obtained a judgment, and sued out execution, upon which the premises were sold.

      To the first breach the defendant pleaded that he was seized in fee, upon which issue was joined, and to the three last breaches he-demurred.
    The cause was submitted to the court both as to fact and law. They found the issue on the first plea in favor of the defendant, and on the other breaches gave judgment on the demurrers for the plaintiff and assessed his damages, and entered final judgment.
    Upon the writ of error several errors were assigned and argued by counsel. But. as the court decided upon one point only, it is> not necessary to notice any other in the report.
    It was assigned for error that the second breach does not aver an eviction, and that in this particular the declaration was defective.
    Downer, for plaintiff in error:
    In an action upon a covenant of general warranty it is indispensably necessary to allege and prove that the plaintiff has been-, evicted by paramount title. 2 Johns. 1, 4; 7 Johns. 254; 11 Johns. 122.
    The statute of Ohio declaring the law in certain cases of covenant real does not apply to this case. It only applies to cases-where the deed contains a covenant of warranty, and no covenant of seizin. The common law principle that the plaintiffs could not recover upon a covenant of warranty, while he retained possession, even where the title was acknowledged to be defective, was an evil, to remedy which the statute was enacted. Bat this-evil did not exist where the deed contained also a covenant of seizin, upon which the grantee could immediately pursue his-remedy.
    The words of the first section of the act, “ all deeds of bargain and sale for the conveyance of lands containing the common covenants-of general warranty,” taken as they stand and with the context, must mean all such deeds as contain those covenants only, and not-that of seizin, otherwise the language of the last part of the section is nonsense. It goes on to provide that “ the grantee shall in such case ^maintain his action upon such covenant of general warranty in the same manner that he might have done had such deed contained also a covenant of seizin. These terms ex- ■ elude from the operation, of. the statute a deed containing a covenant of seizin, as well as a covenant of warranty — and show clearly that it was not the intention of the legislature to give the new .remedy where the old one could be resorted to.
    Goddard, for defendant in error:
    A first impression may seem to favor the construction of our .statute set up by the plaintiff in error. But when the whole .statute is considered, and the effect of that construction in limiting the remedy contemplated by the legislature, it must be held inadmissible.
    The statute is a declaratory one. It recites that doubts are entertained whether an action can be sustained upon the common -covenant of general warranty, before the grantee is evicted, and that it is essential to right and justice that such doubts be removed, and its enactments are founded upon these recitals. What were the doubts to be removed? Not whether an action could be ^sustained upon a covenant of warranty, without eviction, where the deed contained only a covenant of warranty. But a doubt •.applicable to all covenants of warranty, whether standing alone in the deed or united with others. The fact that the deed contained a covenant of seizin did not remove the doubt, as to the .state of facts necessary to sustain an action on the covenant of warranty.
    The covenant of seizin and a covenant of warranty are not •synonymous covenants. A covenant of general warranty is the highest and most beneficial covenant to the grantee. It protects him when a covenant of seizin would not. The grantee may be .-seized in fee at the time of the grant, and yet his estate need not' •be an indefeasible one. He might lose the land, when the. covenant of seizin would afford him no relief.' But the covenant of warranty is always a safe protection. It extends to incumbrances .and defeasances, and it was the intention of the legislature to authorize it to.be brought, without eviction, in all cases where it would lie after eviction, whether the same deed contained a covenant *of seizin or not. The court should rather strive to give effect to the intention of the legislature than to a strictgramjnatical meaning of words.
   By the Court:

The usual or common covenant of seizin stipulated that the grantor in the deed was seized of a good and sufficient title, and had right and authority to sell and convey. This covenant was in the-present tense, and if the fact was contrary to the stipulation, the agreement was violated as soon as made, and a right of action arose immediately. The common covenant of general warranty is in the future, that the grantor will warrant and defend the title. Courts of justice doubted whether the grantor could be called upon to perform this covenant, while the grantee was permitted to hold possession under the grant. The evil of this principle was, that it the title was defective, and the person who had better title chose to lie still, the grantee could do nothing for his future protection and security. To remedy this mischief the statute was enacted. The mischief did not exist where the deed contained a covenant of seizin in the usual form. If the grantee covenanted that his title was indefeasible, when it was not, or that he had right to sell when he had not, or that he was seized of a good title, when his title was defective, the grantee could have immediate remedy. If his deed contained those covenants which usually accompanied the covenants of seizin, as part of it, his case required no statutory provision. And it would be one to which the terms of the statute do not extend. It is neither within the mischief, nor the-letter. And it would be unwarrantable to include it.

The second breach is not well assigned upon common law principles. The court consider the law to be settled, that the breach ought to allege an eviction under a. superior or better title to maintain an action upon the common covenant of general warranty. And it is also their opinion that the case is not within the provisions of the statute. The damages assessed are upon the, three last counts; the judgment must, therefore, be reversed, and judgment given for the defendant upon the demurrer to the second breach.