author: Hitchcock, Judge:

text:
    Lessee of F. M. Stall v. C. & E. Macalester.
    In a sale hy a Guardian under an order of Court, the Guardian’s deed conveys title, without a return of the sale to the Court, or an order confirming the sale and for a deed.
    Sheriffs, Administrators, and Guardians making public sale of lands, may in their discretion, divide a tract levied upon and appraised entire, and sell in parcels, being responsible for the abuse of that discretion.
    Ejectment for an undivided tenth part of a piece of ground about 54 feet front, part of lots 101 and 102, on the north side of Front Street, in Cincinnati. From Hamilton. Upon the trial to the jury, it was admitted that John Stall died in 1810, seized of the whole of the premises described in the plaintiff’s declaration, leaving five heirs,, of whom George W. Stall was one. George W. Stall died in 1816, leaving two children, Frances Mary, and Edward, to whom his interest in the premises descended, Of these two children, the lessor of the-plaintiff is one.
    The defendant then offered in evidence a transcript of record from the Court of Common Pleas of Hamilton County, which was objected to by the plaintiff, but the objection overruled by the Court. From? this transcript it appeared, that at the November term of the Court of Common Pleas, 1829, William Disney, as guardian to Frances Mary and Edward Stall, applied, under the statute, for an order to sell their interest in the premises. An order of appraisement was made, and on the 2d day of April, 1830, the land was appraised, and the appraisal returned and approved by the Court, and a sale ordered. The-land was appraised at six hundred dollars. On the 8th of April aforesaid, *an order under the seal of the court was issued to the-guardian directing him to sell the premises.
    The defendants further offered in evidence two deeds, dated July 15,. 1830, made by the guardian to different persons, under whom the defendants claim titles, for the undivided fifth part of the east half and of the west half of the premises, the west half of said premises having been sold for six hundred and twenty, and the east half for six hundred and twelve dollars. Said deeds recited the order of sale made by the court, but did not state the time and place of sale, nor how many times the notice of sale had been published, but did state that the sales were made at public vendue, legally had and notified. For these reasons the plaintiff objected to these deeds as evidence, but the objection was overruled.
    The plaintiff then offered to prove by witnesses that the notice of sale was advertised only four weeks, but this evidence was rejected by the court.
    It did not appear, from any evidence, that any return of the sale was made to the court, or that the same was ever approved.
    The jury, under the instruction of the court, returned a verdict for the defendants, whereupon the plaintiff moved for a new trial, on the ground that the court erred in admitting the defendants’ evidence, and that the verdict was against law and evidence.
    Van Matee, in support of the motion,
    insisted that the transcript of record and deeds, offered in evidence, did not show title in the defendants, because 1st, no return of the sale of the premises was made-to the court for its approval, nor was- any deed ordered. 2d. The court erred in rejecting the evidence offered by the plaintiff, to prove that the notice of sale had been published but four consecutive weeks. 3d. The land having been appraised as one single parcel, and a sale ordered accordingly, it was not legal for the guardian to sell in two separate parcels. 4th. It was improper for the court or the appraisers, to take into consideration improvements made by the defendants, upon the premises, previous to the appraisal and order of sale.
    W. R. Morris, for the defendants,
    cited the following authorities: 4 Ohio, 129 ; 3 Ohio, 553; 4 Wheat, 503 ; 3 Ohio, 187 ; Wright, 458.
   By the Court,

Hitchcock, Judge:

There is no controversy in the present case, but that the plaintiff is entitled to recover, unless the ^evidence offered by the defendants prove a superior right in them, and whether such is the fact depends upon the validity of the sale made by the guardian, in pursuance of the order of the Court of Common Pleas of Hamilton County, of the 2d of April, 1830. The legality of this sale has been objected to for several reasons, which will be considered in the order in which they are presented by counsel. Before doing this, however, it may be proper to remark, that with the exception of one particular, there is no pretence but that the provisions of the law upon the subject, were literally complied with up to the time of the issuing of the order of sale.

The first exception to the title of the defendants, is, that no return of sale was made to the court for its approval, nor were deeds ordered by the court to be made. If this exception is well taken, if such return was necessary, then the defendants’ title is defective, and a new trial must be awarded ; for, since the enactment of the law requiring confirmation by the court of a sheriff’s sale, it has been uniformly held, that without such confirmation, a sheriff’s deed would be void. And since the act of February 11, 1828, amendatory to “ the act defining the duties of executors and administrators,” 3 Chase St. 1601, it is presumed that the same rule would be applied to deeds made by executors or administrators. The sale in the case under consideration, was made under the law “for the appointment of guardians,” of the 6th of February, 1824. 2 Ch. St. 1317. This act, in the third section, prescribes, that in the sale of real estate by guardians, they shall be “ governed therein by the same regulations as are required of administrators in the sale of real property in the case of insolvents’ estates.” The reason for this reference may be found in the fact, that ■from the year 1808 up to the time of the enactment of this law, the ■duties of executors and administrators, and of guardians of infants, have been prescribed in the same statutes; but at the session of the .general assembly of 1823-4, they wbre separated, and have been so ■continued ever since. In consequence of this reference we must look ■to the then existing law, regulating the duties of executors and adr tministrat.ors in .the sale of real, estates, in order to ascertain the duties •of guardians in disposing of the same description of property. The act in force upon this subject at the time of the passage of the law for the “appointment of guardians,” was the act of January 25, 1816, for the proving and recording wills and codicils, defining the duties of executors,” etc. 2 Oh. St. 929. By this act it is provided that before the sale of the real estates of decedents, their executors or administrators, shall make application to the Court of Common *Pleas, showing the necessity of such sale, and the court are required, upon being satisfied that the sale is necessary, to appoint appraisers. These appraisers are to appraise the property under oath, and make returu to the court. And upon such return it is made the duty of the court to direct the sale of so much of the property as may be necessary. It is then made the duty of the executor, after having given notice, as in the law required, to sell at public vendue, so much of the estate as may have been ordered by the court, but it is not required that any return of this sale shall be made to the court, nor does it seem to have been contemplated that there should be any further action of the court upon the subject. These provisions became a part of the law for the appointment of guardians, as fully as if they had been repeated verbatim in that law, and-by them guardians must be governed so long as the act of the 11th of February, 1824, remains unaltered or unrepealed.

On the 11th of February, 1828, in an act amendatory to the act regulating the duties of executors and administrators, provision is made that after sale of real estate by these officers, return shall be made to the court for confirmation, thereby placing these sales in this respect upon the same footing as sab>s by sheriffs. It is insisted by the plaintiff’s counsel, that this change in the law prescribing the duties of administrators shall be so construed as to effect a similar change in the law relative to the duties of guardians. Such, however, is not the opinion of the court. As has been already remarked, the law for the appointment of guardians, does not in itself prescribe the mode in which real estate shall be sold, but refers to another law upon a •different subject as to this mode. And as has been already shown by this reference, the law referred to becomes a part of this law for .this particular purpose. Such being the case, a repeal of the law referred to would not divest guardians of the right to sell in a proper case. Nor can any change in the law relative to the duties of administrators, effect a change in the law relative to the duties of guardians, unless this latter is expressly referred to. 3 Ohio, 556. On full consideration, we are of opinion that the law does not require that a guardian shall make return to the court of a sale by him made, of the real •estate of his ward, nor is a confirmation of such sale by the court necessary to its validity.

The next exception to the title of the defendants is, that it does not appear that notice of sale was given as required by law, or rather that the court rejected evidence offered by the plaintiff to prove that :*the notice of sale was published only for four consecutive •weeks, when it should have been published six.

The law of 1816 required executors and administrators to give ■notice of the time and place of sale of the real estate of a decedent, by advertising the same in at least fiv.e public places in the county, .and in some newspaper of the most general circulation within the county, for at least six weeks successively. The object in requiring this notice undoubtedly was, that there might be competition at the •sale, and the best possible price secured for the land. That this' •object was effected in the present case, may well be inferred, when it is considered that the land was sold for more than double its appraised value. But if it be indispensably necessary to the validity of the title of a purchaser at guardian’s sale, that strict legal notice shall have been given of such sale, then the evidence offered by the plaintiff should have been received. There can be no doubt that it is a •duty incumbent upon a guardian, to give notice strictly according to law; and should he fail to do it, and should his ward in consequence •sustain loss, he might be made liable for such loss. But the question is as to the effect of such failure upon the title of an individual who has, in good faith, purchased at the sale, and received a deed consequent upon such purchase.

So long as real estate is sold by sheriffs in satisfaction of judgments, by executors or administrators for the payment of the debts of decedents, or by guardians for the sustenance of their wards, sound policy dictates that such sales should be sustained as far as they can be eon>sistently with the principles of law. Every inducement should be held forth to encourage purchasers to give the full value of what they buy. And nothing can have a stronger tendency to this effect, than-to sustain sales, notwithstanding trifling irregularities. It is said by the Supreme Court of the United States, in the case of Wheaton v. Sexton, 4 Wheat. 503, that the purchaser at sheriff’s sale “ depends’ on the judgment, the levy, and the deed. All other questions are. between the parties to the judgment and the marshal,” or sheriff. This principle was recognized in this court in the case of Lessee of Allen v. Parrish, 3 Ohio, 187. In this latter case it was held that the purchaser at sheriff’s sale took a good title, although the property had not been appraised. And the Judge delivering the opinion of the court, says, “ it has never been supposed, that it was essentially necessary to sustain a title under a sheriff’s deed, to show that the. sale of the land was advertised the length of time and in the manner directed by the statue.” Such we understand to have been :l;the-law in this state previous to the act requiring sheriffs’ sales to be confirmed by the court, before a deed can te executed. And since this principle was introduced into the statute, we do not feel ourselves authorized to go behind the act of confirmation, in inquiring into the-validity of sheriffs’ sales.

In the case of Ludlow’s heirs v. Johnson, 3 Ohio, 553, this court say, “ there is no good reason why those who purchase from an administrator, should not be viewed with the same favorable eye with, those who purchase from sheriffs.” If this position be correct, and. we think it is, then it follows that the title of a purchaser at an-administrator’s sale will be sustained, although the legal notice may iiot have been given; and the same protection must be given to those who have purchased at a guardian’s sale. The court then did not err in rejecting the evidence offered by the plaintiff, because, had that evidence been received, it would have made no difference in the fina, result of the case.

The next objection to the defendants’ title is, that the land having been appraised as one entire parcel, was sold in two separate parcels.

We do not see that there was any thing improper in this. In sales of land by sheriff, administrator, or guardian, the individual making, the sale must exercise his own discretion whether the property shall be sold together or in separate parcels. The first object should be to-sell in such a manner as to secure the greatest price. If this object can be effected by offering the property in parcels, the officer selling would be censurable did he not divide it. In all cases he must exercise-a sound discretion, having reference to the interests of all concerned, and being responsible for every abuse of discretion. It is not pretended in the ease before the court, that any one was injured by the •course adopted by the guardian ; at least it is not pretended that his wards were injured. The entire property was appraised at six hundred dollars ; it was sold in parcels at twelve hundred and thirty-two.

The'next and last objection to the defendants’ title is, that the appraisal was made with reference to certain improvements made upon the land by the defendants previous to the order of appraisal, which it is claimed was improper.

Upon an examination of' the transcript of record given in evidence, it is apparent that the additional value of the land, in consequence of these improvements, was not indued by the appraisers in their estimate of the value. In his petition to the Court of Common Pleas, praying for an order of sale, the guardian represented that the present ^defendants were in possession of the land under a contract of purchase with Jeremiah Brown and Mordecai Lewis, who claimed title to the same, which contract was made in 1827. That the defendants had made large and valuable improvements, with his knowledge, .and he submitted to the court whether the land should be appraised with reference to these improvements put upon it by the defendants, or in reference to its situation in 1827. The court ordered that the land should be appraised in reference to the improvements that were •upon it in 1827, which was done accordingly.

It is not perceived that there is any tbiDg improper in this. There is certainly nothing inequitable or unjust. If the land had not been sold by the guardian, and an ejectment had been brought by his wards, to recover the possession, they could not have had the benefit •of these improvements, but their value would have been secured to the defendants under the occupying claimant law. But admitting that this was an irregularity, it can not have the effect to defeat the defendants’ title. There is an order of sale, and so long as this remains in force the purchaser must be protected.

The motion for a new trial is overruled. Judgment on the verdict for defendants.


source: Caselaw Access Project

author: Wood, Judge.

license: Public Domain

text:
    Warren H. Smith v. Commissioners of Portage County.
    Instructions given by a prosecuting attorney to constable having a warrant from a justice of the peace, to arrest a person accused of crime, do not bind the county to pay for the constable’s services and expenses.
    A constable, in serving a warrant to arrest a person accused of crime, out of the State, violates both public and private right, and such service is no consideration upon which a promise to pay can be implied.
    A constable entitled to fee, for pursuing a fugitive from justice, under a justice’s warrant, must procure a transcript of the justice’s proceedings with a bill of fees, and present to the county auditor, and if the auditoi refuse, in a proper case, to give an order for the fees due, he may be compelled by mandamus, but his refusal to audit the account will not raise an implied promise by the county to pay.
    It is.no part of the legal duty of a prosecuting attorney to attend to prosecutions in behalf of the state before justices of the peace: his duties are confined to the Courts of Common Pleas and the Supreme Court.
    Error to the Common Pleas of Portage. Smith brought assumpsit against the commissioners in the court below, and declared in the common counts for work and labor, money paid, etc. The case was tried to a jury upon non assumpsit, and a verdict and judgment ^rendered for the defendants. A bill of exceptions presents the following state of case upon the reeord. A warrant duly issued by a magistrate of the county to arrest one William Latta, for having in possession plates for printing false and forged bank notes, was placed! in the hands of Smith, who was a constable, for execution, and Bierce, the prosecuting attorney of the county, instructed him to pursue Latta into the State of Indiana, his place of residence, or wherever he might be found, and arrest him. In pursuance of which, Smith pursued Latta into Indiana, and arrested him, but was obliged to leave him and return for the requisition- of the Governor of Ohio. This was afterwards procured and' Latta brought to the county, Smith presented his bill for these services and his expenses, to the county auditor and to the commissioners, who refused to audit or pay his account. No transcript of the proceedings containing a bill of the costs had been furnished either by the magistrate or other person.
    Upon this state of fact the counsel for plaintiff prayed the court to instruct the jury, that the plaintiff was entitled to recover for these services, as performed under the directions of the prosecuting attorney -t
      or at all events, that he might recover for his services -under the warrant within the State of Ohio, which the court refused. The court then, at the instance of the counsel for the defendants, instructed the jury, that the warrant conferred upon the plaintiff no authority to go into the State of Indiana, and that the prosecuting attorney had no authority to hind the county by his instructions. This charge and refusal was accepted to by the plaintiff and for alleged error therein, he now seeks to reverse the judgment.
    Bierce, for the plaintiff,
    urged, as a general rule, that an attorney has power to bind his principal so far as may be necessary to effect the object of his employment, especially if the principal assents to and receives the benefit of his acts. In this case the service was performed for the county, under the direction of the county attorney. The arrest was made in consequence, and the prisoner secured, so as to be afterwards obtained under the governor’s requisition as a fugitive from justice, and delivered over to the county authorities. The governor ratified the service of Smith in arresting Latta, by requiring his delivery, and the county authorities by receiving and holding him for trial. The county having thus legalized Smith’s acts, and received the benefit of his services, can not now disavow those services and refuse payment. At all events, the plaintiff must recover for service within the state. The warrant directed him to pursue Latta *“ into any other county within the state,” and he was bound to obey, whether instructed by the county attorney or not. The omission to procure a transcript of the proceedings can make no difference, as that was noil required by the defendants’ counsel.
    Sloane and Otis, for the defendants,
    contended, that the act creating the office of prosecuting attorney, simply makes it his duty to conduct suits for the state, but does not confer upon him any power to make contracts to bind the county ; and such power is not necessary to the discharge of his official duties. 1 Dana, 447; 31 O. L. 13; 1 Ch. St. 359, 453, 561, 723-4 ; 29 O. L. 413.
    A county is a mere quasi corporation, and can only contract by its commissioners. 29 O. L. 268 ; 2 Ohio, 352; 3 Ind. 501. The commissioners can not be made liable upon the common counts in assumpsit. 5 Ohio, 27 ; 8 Am C. L. 526-7 ; 2 Stark. Ev. 53. These services were not performed under the act authorizing the pursuit of fugitives from justice ; but if they were, the act confers power upon the auditor to pay only upon the presentation of a transcript of the proceedings. A bill of fees is no such transcript.
   By the Court,

Wood, Judge.

,It is contended that the defendants are liable in this suit, inasmuch as an attorney, as a general rule, has authority to bind his principal so far as necessary to fullfil his employment, and as the services of the plaintiff were performed under the direction of the defendants’ attorney, for their benefit, and in the due performance of his duty, they constitute a legal consideration upon which the law raises a promise to pay. To this it may well be answered, that whatever moral obligation rests upon the prosecuting attorney, to prosecute offenses before justices of the peace, the law makes it no part of his duty to do so. The act, 31 O. L. 13, provides that it shall be his duty “ to prosecute for and on behalf of the state, all «omplaints, suits, or controversies in which the state shall be a party, within the county for which he shall have been elected, both in the ■Supreme Court and in the Court of Common Pleas.” It thus appears that (the duty of the county attorney is confined to the Supreme Court and the Court of Common Pleas, and his appearance in an inferior court is a mere voluntary act, for which the county is not liable unless by express contract.

But it is said, the county is liable for the constable’s costs while traveling vñth. his warrant in the state. Without admitting this position in the case at bar, in which the warrant was confessedly issued *against a citizen of another state, with no intention or purpose of its execution in Ohio, no legal or moral obligation required the constable to attempt its execution in Indiana, and an arrest made upon it there was a violation of both public and private right. Services rendered under such circumstances, are both voluntary and without authority of law, and present no legal foundation for an implied promise to pay for them. There is, however, a still more satisfactory objection to the defendants’ liability in this ease. The statute provides, that when a constable is entitled to fees, it shall be the duty of the justice to make out and deliver to him, a transcript of the proceedings containing a bill of the constable’s costs, which the constable shall present to the county auditor, who shall examine the same, correct the errors, if any, in the charges, and draw on the treasurer for the amount allowed in favor of the constable. 29 O. L. 198-9. When the constable presents his transcript to the auditor, if he refuses to perform the duties enjoined upon him by law, he may be compelled by mandamus. Such remedy is plain and adequate ; but the auditor’s refusal to perform his duty, does not, in our opinion, subject the commissioners to liabilty.

We think, therefore, there is no error in the proceedings and judgment of the court of Common Pleas, and affirm the judgment with •costs.


author: Lane, C. J.

text:
    David Stratton v. Warren Sabin and Others.
    A stipulation in a deed of conveyance, giving the grantor the privilege of selling the land conveyed, if he could do so to better advantage within two years, he, in that event, paying hack to the grantor the purchase money and interest, does not of itself constitute a mortgage.
    Bill in Chancery. From Clinton. This case, in the pleadings ■and proofs, involves many enquiries unnecessary to be stated to elucidate the point decided by the court. The following statement will present the facts connected with the point decided. In 1822 Sabin then owning a tract of about seventy acres of land in Clinton county, united with his wife in a conveyance of fifty acres of it to the defendant, David M’Millan. The deed contained the following clause: “ And it is expressly understood that if the said Sabin can, within two years from the date hereof, dispose of the said fifty acres hereby granted, to any better advantage to himself, he shall have the privilege of so'doing, Tby paying the said M’Millan the consideration money herein mentioned, viz. three hundred dollars and interest.”
    *In 1834, the Urbana Banking Company obtained a judgment against Sabin in the common pleas of Logan county. Execution was sent to Clinton county, which was levied upon seventy acres of land, including the fifty conveyed to M’Millan, which was duly sold to the plaintiff. The proceedings were confirmed by the court and a deed made. After the levy, Sabin sold forty acres, part of the fifty acre -tract, to defendant, William Hibben, and received a deed from M’Millan. Hibben paid M’Millan's assignee the balance claimed by him, and the residue of his purchase he paid to Sabin, and obtained the possession of the land. Stratton claims that the deed to M’Millan was a mortgage, which was quite or nearly paid off when his levy was made, and that Sabin was a mortgagor in possession, and had a legal estate which passed by the sale on execution ; that the transfer to Hibben was fraudulent and taken with full knowledge of the levy, &e., ■and prays account of the sum due on the mortgage, to be let in to re■deem, &e.

      Gr. Poos and G-. J. Smith, for plaintiff,
    insisted that the deed of Sabin and wife to M’Millan was a mortgage only, given to secure the payment of money, treated as such by the parties, and containing on its face a condition of defeasance. They cited Strong v. Stewart, 4 Johns. Ch. 166; 1 Day’s Cases in E. 139; 1 Pow. on Mort. 4 Lond. Ed. 104; Walker v. Walker, 2 Atk. 99; Young v. Peachy, ib. 257. Chancellor Kent, in Henry v. Davis, 7 Johns. Ch. 41, says, “ that every contract for the security of money, or a debt, by the conveyance of real estate, is a mortgage, and that all agreements of the parties, tending to alter in any subsequent event, the original nature of the mortgage, and prevent the equity of redemption, is void.” This doctrine has been recognized in Ohio, Miami ex. Co. v. Bk. U. S. et al, Wright, 252-3, and the authorities there referred to. See also 4 Am. Ed. Fonb. Eq. 494, note, where the authorities are collected. Conditional deeds are not favored, and where there is any doubt, the-court will determine the deed a mortgage. Conway v. Alexander, 7 Cranch, 218. It is one distinctive characteristic of a' mortgage, that there is a mutual remedy between the mortgagor and mortgagee, but-this never exists where the deed is purely conditional. 1 Mad. Ch. 515 to 519. The assignment of the mortgage debt by M’Millan to M’Cormick, and the discharge of it by Hibben at the request of Sabin, extinguished the debt, and operated a release of the mortgage to Sabin. 1 Johns, Ch. 589; 2 Gal. 152; Coxe Dig. 493; *2 Marsh. 109; Green v. Hart, 1 Johns. 582; Teirnan v. Beam and others, 2 Ohio, 383.
    R. B. Harlan, for the defendants,
    contended that the deed to M’Millan was clearly not a mortgage. There is no stipulation in it for the payment of money or the .doing of any other act, nor proviso-making it void upon the happening of any event. It merely purports-to give Sabin a privilege of repurchasing, but in no way imposes upon him an obligation to do so, or to repay, which could be enforced, and so M’Millan was by the deed-left without the remedies of a mortgagee. 7 Cranch, 218, 225; 1 Mad. Ch. 517; 4 Mass, 456; 12 Mass. 456 ; 1 Wash. 125 ; 1 N. H. 39. If the deed was not a mortgage on its face, as to Hibben it can not he held one, because he purchased without notice. 3 Wend, 208. If the deed was not a mortgage, then Sabin’s right passed by the deed, and inasmuch as he did not avail himself of the privilege of repurchase within the two years, it was wholly gone before the levy. 2 Yerg. 6; 2 Bibb, 224-5; 4 Kent. C. 144; 5 Bac. Ab. 626; 2 Cruise Dig. 86; 1 Mad. Ch. 517-18 and note. ; 2 Fonb. Eq. 262; The title of Sabin, being at best only an equitable-one at the time of the levy, was not bound by it. 8 Ohio, 23-4; 1 Ohio, 314; 18 Johns. 18, 94; 9 Cow. 73; 2 Bibb, 94.; 7 Ohio, 228; 3 Ohio, 238; 6 Johns. Ch. 423. Hibben having made his contract before the sheriff’s sale, has the elder equity, and will be protected here-1 Blackf. 94; 1 Bibb, 523.
   By the Court,

Lane, C. J.

The question on which this case turns-is, whether the deed from Sabin, in 1822, was a mortgage, leaving in him the right of redemption ? Because, if he had in him the interest of a mortgagor in possession, his right to redeem the mortgage passed to the purchaser at the sheriff’s sale. Other objections to the sale are-raised by the parties, but it is unnecessary to consider any other than this.

The deed itself is ambiguous. The sale is not absolute, but it does not necessarily imply any other interest in Sabin, than a right to repurchase, or an authority to sell. The possession continued vacant until Hibben’s purchase, except some slight acts of ownership by M’Millan — the taxes were paid by him. No proof is made of any previ ous dealings between the parties — no note or covenant to pay money is shown. The answers both of Sabin and M’Millan, deny in-the most positive terms, that the parties intended it as a mortgage, or-that any debt subsisted between them ; or that they designed anything else, except to secure to Sabin the privilege of repurchase. It is ^admitted, however, that in 1831 or 1832, a sale of this land was made by M’Millan to Sabin ; but the answers aver it was not under the-privilege retained in the deed, which had been abandoned long before,, but under an entirely new agreement. The consideration was five hundred dollars, one hundred and eighty or one hundred and eighty-five of which was paid down, and the remainder in three annual payments, secured by notes. Hinkson proves that sometime in 1833, as-he believes, he drafted an agreement between Sabin and M’Millan, for the purchase of this land, the terms of which he can not recollect. This repurchase is calculated to raise doubts,, but the proof of the agreement of repurchase before the judgment in favor of the Urbana Bank, corroborated the answer, notwithstanding the disparity in dates between the answers and deposition. There is, it is true, much in the case to awaken suspicion, but we nowhere find proof enough to-establish the relation of mortgagor and mortgagee between these parties, against the direct denials of the answers.

In the late case of Glover v. Paine, 19 Wend. 518, a similar •question was presented, and the court held, that the mere fact of a ■ conveyance of land, and an agreement for a reconveyance at a future -day, at an advanced price, at the election of the grantor, afforded no evidence of an intention that the deed should he considered a mortgage, though the question might have arisen, had the deed been given for a pre-existing debt, or on a loan of money, or had the grantor entered into an obligation to repay the consideration money expressed in the deed.

Bill dismissed.


author: Grtmke, Judge.

text:
    John P. Foote v. The City of Cincinnati, David Griffin and John W. Mason.
    Trespass quare clausum fregit will not lie against a corporation aggregate.
    Where several are sued jointly for a tort, which in point of law and fact •could not be joint, a demurrer is good for all.
    Trespass quare clausum eregit. From Hamilton County. 'The plaintiff declares against the defendants jointly, for that they broke and entered his premises and pulled down and destroyed several building?, to his damage seven thousand dollars. To this the defendants demur generally, which is joined.
    J. 0. Wright, T. Walker, and E. Woodruee, for the defendants,
    ■insist, this is a misjoinder, as a corporation can not commit a trespass with force and arms, nor be sued in trespass. They cited 8 East. *230 ; 1 Ch. PI. 66 ; 1 Blk. Com. 503. The case of Orr v. Bk, U. S. and others, 1 Ohio, 37. expressly decides, that a corporation can ■not commit an assault and battery, nor be joined in a suit against individuals for such trespass. The authorities show the same rule, appli•cable to all personal injuries or those resulting from force, “for a corporation 'can neither beat nor be beaten in its body politic.” A trespass with force supposes a direct personal agency in the act which a ■corporation can not exert.
    B. Storer and 0. Fox, for the plaintiff,
    made two points: 1. That ■trespass, vi et armis, can be sustained against a corporation. 2. That ,a corporation may be joined in such suit with individuals. They contend there is nothing in the nature or constitution of corporations-which renders a remedy appropriate against individuals inapplicable to them. If a corporation can order and direct its servants to commit trespass with force, it should, like individuals, be answerable for the-injury of the servant so committed. Within the scope of their corporate powers the law considers corporations as individuals, and it is in accordance with the spirit of modern decisions and the policy of the law to assimilate corporations as much as possible to individuals, to-govern them by the same rules, and subject them to the same remedies. By the common law some actions of tresspass are permitted against corporations. The case of Yarboro v. Bk. of England, 6 East. 9, and the cases there cited are precisely similar to this. It is said, to be sure, a corporation could only commit trespass by writing under seal, Vin. Ab. K. 22. So it was formerly held of their power to contract, but that is now done away with, and they contract as individuals. The case of Orr v. Bk. U. S. and others, is expressly limited to the case of' assault and battery. The court say, “ it is not intended, nor is it necessary, to assume the principle, that trespass will not lie in any case against a corporation, or that individuals may not be joined in the-same suit with a corporation, for a tort which they may jointly commit.” In a late Pennsylvania case, 4 Serg. & R. 17, the court held,, that where persons employed by corporations commit injury, the corporation should “ be responsible in the same manner that an individual, is responsible for the act of his servant. The act of the agent is the act of the principal. There is no solid ground of distinction between-contracts and torts.” They cite also, 7 Cow. 484; 6 Peters, 444; Bro. Corp. 48 ; 7 Mass. 186 ; Com. Dig. Action on the case A.
    The second proposition is but a corollary of che first. The old objection to the joinder because of diversity of process, has no application here, as now the parties are brought into court by the-same, and not a different writ, and the old rule of law, ratione cessante, may be here appropriately applied. The case of Goodloe v. The City, 5 Ohio, 513, virtually decides this case for the plaintiff.
   By the Court,

Grtmke, Judge.

The plaintiff in this case declares-in trespass, against the city of Cincinnati and two individuals, charging them jointly with having broken and entered upon his premises and prostrated and destroyed several buildings, etc. To this is general-demurrer. This is the first instance, if we except- some very old cases which are alluded to in Yarboro v. The Bank of England. 16 East. 6, in which this action has been attempted to be supported against a corporation : and to be sure, if the denial of the suit would draw after it, as a necessary consequence, the denial of any effectual remedy, that circumstance would afford a powerful argument why it should be sustained. But that consequence will not follow. Another remedy more appropriate and equally effectual will lie ; and the question is, whether a form of action which presupposes the injury to have been committed with force,' can be resorted to ?

In Yarboro v. The Bank of England, it was held that trover would lie against a corporation : and certainly it is not true, as has sometimes been said, that no suit at common law can be sustained against ■a corporation for a tort. The case of Argent v. Dean, etc., of St. Paul’s, cited in 16 East. 8, note, was against a corporation for a false return to a writ of mandamus, and no objection was made that the action would not lie. Indeed instances are numerous of like suits without ebjection. Riddle v. Proprietors of the Locks, etc., on the Merrimack River, 7 Mass. 186, was trespass on the case against a corporation. There it was contended that trespass would lie against a corporation; and that trespass on the case in its origin, was merely an extension of the action of trespass vi et armis, the old writ of trespass being applicable only in a few instances, it was attempted to enlarge its scope so as to adapt it to'every new case. But notwithstanding in ancient times, the action of trespass on the ease, as well as trespass proper, was laidm et armis, as well as contrapacem, it is never so laid now. No two actions are kept more separate and distinct from each other, and therefore it was determined in the Massachusetts case, that an action on the case would lie against a corporation. The case of The Chestnut Hill, etc., Turnpike Co. v. Rutter, 4 Serg. & R. 6, was also an action on the ease, and the judge who delivered the opinion, after *re viewing all the authorities, decided that the action was maintainable. Thus trover, ease, and an action for a false return, have all been decided fit remedies against a corporation: but no instance is found, since case and trespass have ceased to be confounded with each other, of trespass vi et armis against a corporation aggregate. In Orr v. Bank United States, et al, 1 Ohio, 37, this court decided that trespass for assault and battery would not lie against a corporation; and it is difficult to perceive any material distinction between the two cases. The whole reasoning proceeds upon the inconsistency of suing a corporation in a form of action which presupposes the injury to have been committed with force and arms, and is, therefore, equally applicable to trespass upon the person and upon reality. It is true the objection may be denominated a technical one; but even a technical rule, after it has become a general one, should for that reason alone be preserved, unless manifest inconvenience would be the consequence. But here none such can result. The individual members of the corporation would be liable in their personal capacity, if the circumstances of the case would warrant it.

The only remaining question is, whether, as Mason and Griffin are joined in the suit, they may take advantage of the demurrer? The rule is, that if several persons be made defendants jointly, where the tort could not in point of law be joint, they may demur. And it is only where, in point of fact and of law, several persons might have been guilty of the same offence, that the joinder of more persons than were liable, in a personal or mixed action, offers no objection to a partial recovery. 1 Ch. Pl. 99 Here the tort complained of could not in point of law be joint, and the demurrer must, therefore, be sustained in favor of all the defendants.


author: IIitohcook, Judge.

text:
    John Coventry v. George F. A. Atherton.
    'The seventh section of the limitation act of the 18th February, 1831, 29 O. L. 214, provides “ that when any person shall have left the state, and remained out of the same; or shall reside out of the state, at the time any cause of action shall have accrued against him, or shall have removed to any place unknown.” etc., the person having such action may sue within the time limited for the same, after his return or removal to the state. Held, that when a defendant leaves the state after the cause of action accrued, the statute of limitation continues to run, notwithstanding his absence from the state.
    Assumpsit. From Tuscarawas. The plaintiff declared in the common counts, for work and labor, goods sold, for money had and ^received, lent, etc. The defendant pleaded — 1. Non-assumpsit 2. That they did not accrue within six years. 3. Non-assumpsit within six years. To the second and third pleas the plaintiff replied, “ that within six years after the time, the defendant undertook and promised, etc., to wit, on the 1st of August, 1831, the said defendant left the State of Ohio, and remained out of the same until the 20 th of August, 1836, when the defendant returned to the State of Ohio, and the plaintiff, within six years after the return, etc., viz. on the 26th off August, 1836,” etc., commenced suit, etc. To this replication the-defendant demurred, which is joined.
    Atherton and Peck, for defendants.
    Culbertson and Hance, for plaintiff.
   By the Court,

IIitohcook, Judge.

The pleadings in this case, call for a construction in part of the seventh section of the act for the limitation of actions, passed February 18, 1831, 29 O. L. 214. This section provides “ that when any person shall have left the state, and remained out of the same; or shall reside out of the state, at the time-any cause of action shall have accrued against him; or shall have re-' moved to any place unknown to the person in whose favor such cause of action may exist, during such time as is limited by this act: the person having such cause of action, shall have a right to commence his or her action against such person, within such time as is limited' as aforesaid, after his or her return or removal to the state; or if within the state, then within such time, after his or her place of residence shall become known.”

As a general rule, and unless provision is otherwise made, when, a statute of limitation once begins to run against a demand, it continues to run until the demand is barred. Still it is within the power of the legislature to prescribe differently. And it would probably be conducive to justice, so to change the rule, that the statute should cease to-run during such time as a debtor should be without the jurisdiction of the court of the state, or should have absconded and concealed his place of residence from his creditor. On the part of plaintiff in the present case it is supposed that the section above quoted goes beyond this case, and provides, that if after the statute has begun to run, a debtor shall remove or reside out of the state, or shall conceal himself from his creditor, and shall subsequently return to or come within the state, or his place of concealment become known, that the creditor has the time limited in the statute after such return, ^etc., within, which to commence his action. Such, however, is not the provision.

This seventh section provides for three classes of eases : 1. “When any person shall have left the state and remained out of the same.” 2. When any person “ shall reside out of the state,” and 3. When any person “ shall have removed to any pi; ce unknown to the persons in whose favor a cause of action may exist.” As to the two former classes, it is enacted that if they shall have thus removed and remained or resided out the of state, “ at the time any cause of action shall have accrued against them,” the person haying such cause of action, may commence his suit “ within such time as is limited as aforesaid,” after their return or removal to the state. The provision is nothing more nor less than this, that the statute shall not begin to run in favor of any person, until such person is within the jurisdiction of the state, and in a situation that suit may be prosecuted against him in our own courts.

As to the other class of cases, there is more difficulty, although probably the intention of the legislature was the same. The provision is, that if any person “ shall have removed to any place unknown to the person in whose favor such cause of action may exist, during such time as is limited by this act,” then the person having such cause of action, may commence suit within such time as is limited by the . act, “ after his or her place of residence shall become known.” In the former part of the section the expression is, “ at the time any cause of action shall have accrued against him,” in this “ dwing such time as is limited by this act.” Upon this clause it might be argued with some plausibility, that if a person against whom a cause of action existed, should abscond and conceal himself, the effect would be not only to destroy the force of the statute from such time until the place of his concealment should become known, but to destroy its force for the time it had already run. It is not necessary, however, in the present case, to give any definite opinion on this part of the section.

In the case before the court, the replication shows that, “at the time the cause of action accrued” the defendant was within the state, and left afterwards. It does not appear that he removed to any place to the plaintiff unknown.

Demurrer sustained, but leave given to the plaintiff to amend upon the payment of costs.


text:
    *Harriet L. Piatt v. Jacob W. Piatt.
    Where the Supreme Court decree a dissolution of the bonds of matrimony, a gross sum may be decreed to the wife, and also another sum every three months during tbe joint lives of tbe parties, as alimony.

    But such a decree, if erroneous, can not be questioned in resisting a sale upon execution under it.

      "Where alimony is decreed in a gross sum, or in instalments, the decree may be enforced by execution for such instalment as it becomes due, or any nnmber of instalments, due when execution issues, may be included in one writ.
    Motion to set aside a sale and execution. From Hamilton county. At April term, 1836, a divorce from the bonds of matrimony was decreed in favor of Mrs. Piatt upon the aggression of her husband. A prayer for alimony to the wife was then taken under advisement, upon which the court afterwards decreed, “ that the defendant pay to the elerk of the supreme court, in Hamilton county, for the use of the complainant, the sum of one hundred and fifty dollars on the 1st of Sept., 1836, and seventy-five dollars as alimony, at the expiration of every three months thereafter, for and during the period of the joint lives of the said Harriet L. and Jacob W. Piatt; and that in ease of failure to make either of the payments aforesaid, execution issue therefore as on a judgment at law.” The eourtfurther ordered, “ that this decree stand as a lien on the lands of ihe defendant, to secure the payment of the said several sums as aforesaid.”
    On the 6th of March, 1837, a writ of fieri facias et levari facias, issued from the clerk’s office, in favor of the said Harriet, against the said Jacob, commanding the sheriff to make the sum of three hundred dollars, “ which H. L. Piatt, in a petition for divorce and alimony, at, etc. recovered against him for alimony, whereof the said Jacob W. Piatt is convicted, as appears to. us of record.” On the back of this writ is endorsed, “ alimony one hundred and fifty dollars, interest from Sept. 1, 1836, — seventy-five dollars, interest from Dee. 1, 1836— seventy-five dollars, interest from March 1, 1837.” The costs were also endorsed.
    Upon this writ a levy was made on lot 19, in Cincinnati, an appraisement had, and a return, lot unsold for want of bidders. Afterwards a venditioni exponas issued, similarly endorsed, but with additional costs. The sheriff returned a sale of the lot upon this venditioni exponas, to B. M. Piatt, for six hundred and five dollars. The sheriff’s return coming up for confirmation, a motion was interposed on the part' of the defendant and of the purchaser, to set aside the writ and sale, for the following reasons ■—
    *1- That the execution is irregular, having issued for too much. 2. That it is for alimony, while alimony can only exist while the relation of husband and wife subsists. 3. That it issued upon a void judgment or decree. 4. That the clerk’s proceedings in issuing it are irregular and void. 5. That there is no decree to warrant it. 6. That no appraisement is returned with the writ, and it is not shown that any was made hy three disinterested, freeholders.
    J. C. Wright and T. Walker, for the motion,
    declined arguing the last objection, as the facts would speak for themselves. The other objections, for convenience, they considered together.
    Alimony, in its legal signification, is an allowance of subsistence to a married woman from the estate of her husband, while she is lawfully separated from him, and can only be allowed while the relation of •husband and wife exist. The court may order alimony to be paid upon a decree of divorce from'bed and board; or pending a bill for divorce ; or upon lawful separation for any cause for which a divorce might be decreed. But no decree for alimony is known in practice, or recognized as right, where the marriage contraet is dissolved.
    The statute of Ohio follows the English rule. The fifth section of the divorce act, 29 O. L, 432, provides, that where a divorce is granted upon the aggression of the husband, the woman shall be restored to all her lands and tenements, and may be allowed by the court, “ out of her husband's real and personal estate, such share as the court shall deem reasonable, having regard to the personal property that came to •him by marriage, and his estate at the time of the divorce.” This seems plain. Upon such divorce, the woman shall have her land restored, and the court may allow her, in addition, such part of her hus■band’s estate, as, all things considered, they may deem reasonable. This enactment attempts no change of the law — it merely declares it. It does not speak of alimony, or contemplate it, because, as we think, alimony could not properly be considered, when the relation of husband and wife was severed. Upon the dissolution of the marriage, the law looks to a division of the property upon eqitable principles, first giving back to the wife her land, and secondly, allowing her what is equitable as her portion of the remaining property, having especial regard to what she brought in. We insist this allowance must be in gross, having relation to the property held when the divorce is decreed. It can not be made dependent upon any future contingency, as the •duration of life. It can not be allowed as an annuity, because it is not subsistance or *alimony, to be paid from time to time as required, but is a division of the effects of the husband and wife when they cease to be such, and looks particularly to what each brought in, and to what may have been acquired afterwards during their ■matrimonial connection. This allowance was not regarded by the general assembly as alimony, as will clearly appear by reference to-a succeeding section of the act.
    In the seventh section of divorce law, 29 O. L. 432, power is expressly given to the court to grant alimony to the wife for her sustenance, in the following cases. 1. During the pendency of a petition for divorce. 2. Where she prays alimony without asking a dissolution of the marriage. This accords with our construction, and is the only grant of power to the court on the subject of alimony that we find ; and if the power to grant alimony be a common law or chancery power, our constitution only confers it on the court in such cases as shall he directed hy law. The court has only a limited jurisdiction in divorce cases. It can not divorce from bed and board merely, but may dissolve the bond of matrimony. When that is decreed at the instance of the wife, the court must restore to her her lands, and may moreover allow her a reasonable portion of her husband’s estate. If' the estate be land, the court may apportion a part of it to her. So if in money, goods, furniture, etc., it may be apportioned to each a part. The court may make this apportionment by an allowance of a gross sum in money. In either event, the property set apart or the sum allowed is thenceforth her’s ; and the controversy ended.
    In the case before us, the court dissolved the marriage, and ordered one hundred and fifty dollars to be paid to the clerk, by the 1st of Sept. 1836, and then add, “ and seventy-five dollars as alimony, at the expiration of every three months thereafter” during the joint lives of' the parties. We think it clear, that the alimony part of this decree is-null and void, because the court had no power to pronounce it. The execution upon which the levy was made, commands the officer to make three hundred dollars and costs recovered against the defendant for alimony. Now there is no judgment or recovery upon which to predicate this writ. No decree is recited in it. Are we permitted to-conjecture that the writ was issued upon the decree of divorce, although the sum named therein is only one hundred and fifty dollars, and that is not decreed for alimony ? We think the execution unsupported by any judgment or decree, and void. The memorandum on the back of the writ, can not supply any essential ^defect in it, or make it valid. If the writ is void, no proceedings under it can have legal efficacy.
    - As to the amount above one hundred and fifty dollars, if we refer to-the decree, how can the clerk determine, at the end of every three months, whether the parties are alive; whether the money is unpaid;. •or the right to issue execution, without notice, or giving the parties an opportunity to be heard? Or if the right be controverted, how can he try it?
    It may be said this is not the place or mode of determining the questions raised. If so, we reply, that -we understand the court refuses to review divorce cases, and if remedy is not given on motion, we •see no way to reach the matter.
    N. Wright and Hodges, contra,
    submitted no argument.
   By the Court,

Wood, Judge.

The first objection raised by defend•ant’s counsel, is not without apparent plausibility to sustain it, as an •objection to the confirmation of sale, viz. that the execution issued for too large a sum. One hundred and fifty dollars was decreed to be paid on the 1st of September, and seventy-five dollars every three months thereafter. As these distinct sums fall due at different periods, •it is urged that a separate execution ought to issue for each. We think execution might issue upon each instalment as it became due ; but as the decree is an entire thing, though to be performed by the payment of periodical instalments, if the complainant sees fit to wait until a number of these instalments fall due, we see no substantial reason against including whatever may be due at the time of issuing the writ in the same execution. Such a course is for the defendant’s benefit, and he ought not to set it up as an objection. It saves him the expanse of several writs and returns. The proceeding is similar to that of a judgment at law for debt, damages, penalty and costs; they constitute but one judgment, though consisting of distinct items. So if a party is orderfed to pay costs of several continuances, it is the general practice to include all of them in one execution, under the •denomination of costs, in case they accrued in the same cause.

The second point raised by counsel, that alimony can only exist while the relation of husband and wife continues, has no foundation on which to rest, and as Lord Holt once said, he must be a bold man who ventures on such an assumption. It is certainly opposed to the long continued and well settled practice of this court. The authority to grant alimony in this state, is derived from the 5th and 7th sections of the *act concerning divorce and alimony, 29 O. L. 432. The fifth section provides, that where a divorce shall be decreed in case of the aggression of the husband, the woman shall be restored to all her lands and tenements, and be allowed out of her husband’s real and personal estate, such share as the court shall think reasonable. Here is power conferred upon the court to dissolve the marriage contract, and allow such amount to the wife, as in its discretion may be thought' just. Such allowance, it is true, is not in this place called alimony, but it is clearly intended such. But it is said this alimony must be allowed in gross, and can not be made payable in instalments. The answer to this is, the statute is silent on that subject, and therefore, like the amount to be allowed, is left to the discretion of the court. The practice has been so to decree. Besides, this objection is not so much to the sale, as to the supposed irregularity of the decree, and it is well settled, that errors in a decree can not be reached and corrected in this collateral way. A sale under a judgment or decree, which is merely erroneous, not void, is valid, and will pass a good title to the purchaser. There is nothing in the objection, that the decree in this-ease was void, because the court had jurisdiction of the subject matter in controversy, and of the parties. In such cases, judgments or decrees are valid, although they may be held very erroneous.

As to the objection, that the clerk’s proceedings in issuing the execution, are irregular, and that there is no decree to warrant the execution, the answer is simply, non constat.

It is also objected that there is no appraisement returned with the writ, nor statement in the return that the lot was appraised by three disinterested freeholders. The return is in these words, “ I have duly appraised, advertised, and offered for sale.” Now if the sheriff has duly appraised, he has done so by the oath of three freeholders; and the presumption is that the appraisal has been returned, because the-law requires it of the officer, and in the absence of anything to ■ the contrary he will be presumed to have done his duty.

We intend in this case to be understood as deciding, 1. That in a decree dissolving the bonds of matrimony, a gross sum, may be allowed as alimony, and be ordered to be paid in gross or in instalments, in the-discretion of the court. 2. That such decree may be enforced by execution issued for each instalment as it becomes due, or by one for all the instalments due at the time it is issued. 3. That after sale on such execution, an objection that the decree for alimony is erroneous if not void, will not be listened to.

The motion is overruled, and the sale confirmed;


author: Lane, 0. J.

text:
    *The State, on the Relation of L. Kilbourn v. Alvah Hand.
    Where an attorney at law has collected money for his client, withheld its payment and applied it to his own use, he may be suspended for mal-practice Honesty and fidelity to clients are the essential virtues of an attorney’s calling, and whenever courts are satisfied he has lost these essential qualifications, they are wanting in their duties, if they do not take away his means, and destroy his opportunities of mischievous action.
    Complaint against a solicitor of this court, for mal-practice in his official and professional character. From Portage county. The relator states, that he, with Hand and others, were security for the payment of a debt by one M’Oúne ; that M’Cune deposited with Hand, in his character as attorney, sundry demands and notes to collect and pay over upon the debt, and thus relieve the securities from their responsibility. That Hand had collected the debts, but instead of duly appropriating the money, had expended it for his own uses, and that the debt of M’Cune’had been collected of relator and his co-securities by process of law. The relator, therefore, for this mal-practice, prays that Hand may be suspended from practising as an attorney at law. The defendant demurs, which is joined.
    The case was submitted without argument.
   By the Court,

Lane, 0. J.

In this case the question is raised, whether the non-payment of money collected by an attorney at law may he a sufficient cause for his suspension ? It is alleged to be a simple failure to keep a promise, for which the law provides a remedy, and that the statute, by imposing a specific penalty in such cases, implies that no severer punishment was intended.

The relation of attorney and elient is a necessary one, in every country whose civilization is in any degree advanced. The discharge of professional duties, demands great and unreserved confidence from the client, and the connection of the attorney with courts, and his access to papers, require unsuspected integrity. Hence general■ honesty and fidelity to clients, is not only necessary to his success, but even to the performance of his duties. Other good qualities may bé wanting in his character, and some vices may be present, but the$e are the essential virtues of his calling, no more to be dispensed with than courage in a soldier, or modesty in a woman. The statute regulating admission to the bar, requires the court to be satisfied that the applicant possesses these qualities. The public have a right to presume that the court are fully satisfied upon these ^points, and to regard a license to practice as a certificate of good character from them. And whenever the court shall become persuaded that an attorney has lost these qualifications, essential to his usefulness, and necessary to the safety of his employers, they are wanting in their duties, if they do not take away his means, and destroy his opportunities for mischievous action.

The defendant is charged with holding money collected by him and using it for his own purposes. Having received the money in his professional character, he was not only bound by his obligations of professional fidelity, to appropriate it as his client directed, but honesty to his eo-securities, in this case, demanded its due application. If the facts shall be proved, he ought not to be permitted to claim longer confidence, when he has shown himself so unworthy of his trust.

Demurrer overuled. Cause remanded.


author: G-rimke, Judge.

text:
    Elijah F. Willey v. Philo Scoville’s Lessee.
    Where a lot of land is listed for taxation, together with eight others, and so advertised for sale, hut the assessment of tax is of one aggregate sum on all, a separate sale and conveyance of them by the county auditor is unlawful, and confers no title.
    Error to the Supreme Court of Cuyahoga. The suit in the Supreme Court was an ejectment. Lessee of Scoville v. Willey, for four acres of land in Cleveland, in the north-west corner of ten acre lot No. 32. T. 7. R. 12. The bill of exceptions made part of the record, shows that upon trial, the plaintiff deduced title from, the State of Connecticut, and rested. The defendants then set up title under a sale by the auditor of Cuyahoga, made in 1823, for the taxes of 1820, ’21, and ’23, added together. He offered the auditor’s record showing the listing of sundry ten acre lots, for taxes for those years, in the name of unknown heirs, and among others lot 32, which is in dispute; that several of said lots, including 32, had been returned delinquent, duly advertised for sale, and sold accordingly. That the certificate of ■sale of the four acres in the north-west corner of 32, was given by ■the auditor to the purchaser, upon which the land had been surveyed, and conveyed by the auditor to the defendant. It was admitted that the ten acre lots in Cleveland, in R. 12 — 7, so called, were originally numbered progressively, and had been conveyed and known by the ■designation of ten acre lots.
    *Lot 32 was listed with eight others, as follows :—

      Cleveland Ten Acre Lots.

    The lots were advertised in the same way, but the record shows that each lot was put up and sold for the taxes assessed upon it separately, the tax on each being one ninth of the aggregate sum. In this way four acres of lot 32 were sold to defendant.
    The plaintiff objected to the manner of listing and the sale made by the auditor, as illegal, and moved the court to exclude the defendant’s evidence from the jury, which was done. By this writ of error the ■defendant below seeks to reverse the judgment, upon the^ground that the court erred in ruling out the evidence.
    R. Hitchcock, Wilder, and Andrews, for the plaintiff in error,
    ■contended that the land in question was listed and sold according to law. In Lafferty’s Lessee v. Byers, 5 Ohio, 458, the court say, “ it is necessary the description should be such that the owner may know that the tax on his land is unpaid, and that purchasers may know or learn the precise tract intended, and he enabled to estimate its actual value.” In the present case that certainty is attained to. The list describes the numbers of the lots, well known, the quantity, and ■enters all as second rate, and conforms to the requisitions of the statute. 2 Ch. St. 1104, § 24; Lessee of M’Ginnis v. Willey, Wright, 152. The court, in Carlisle’s Lessee v. Longworth, 5 Ohio, 370, remark, that “ it is for the interest of all concerned that tax sales should be sustained whenever they can be. The greater the certainty of this description of title, the greater the value which will be attached to the land at the sale, and the less the quantity sold to pay the taxes.” The proceedings in this case are in substantial if not literal conformity with the statute, and should be sustained.
    The Reporter has been furnished with no argument for the defendant in error.
   By the Court,

G-rimke, Judge.

The proceedings in this case show a defect which is very common in tax sales. Lot 32 was listed and advertised for sale, with eight others of the same ten acre lots, by the following description. The first and second columns contain the *range and township, the third enumerates the nine lots by their number, and the fifth contains an apportionment in gross, of the tax for which they were delinquent. The law requires that the auditor should so list and advertise the land as to furnish the owner with a description of the land subject to taxation ; and that the sale shall be advertised and conducted in conformity with that rule. In this instance there was an assessment in gross of the whole amount of the tax chargeable upon the nine lots, and yet each lot was put up and sold to pay the tax on it separately. The land is not treated as an entire tract in the list, advertisement, or sale, but is so treated in the apportionment of the tax. Now it is evidpnt that the course pursued should have been throughout consistent with itself. If the lots might be treated as separate and distinct parcels of land, then the tax charged upon them should have corresponded with that fact in the description. Or, if they should be treated as one entire tract, then, although the assessment of the tax in the advertisement as one aggregate sum, would have been correct, the description of the land would itself be erroneous, and so also would the sale under which the plaintiff in error claims. In either case, the title is defective, and the court were right in ruling out the evidence..

Judgment affirmed.


author: Hitchcock, Judge.

text:
    Lessee of Benjanin Hough v. Thoda Norton and Others.
    If after recovery in ejectment, the lessor of the plaintiff contracts to sell the premises to the defendants, the tenants in possession, he can not subsequently revive the judgment by scire facias.

    A scire facias to revive a dormant judgment, should show on its face that time had elapsed since the judgment for it to become dormant.
    When a plaintiff who has judgment in ejectment, abandons the possession of the premises, he has the fruit of his judgment, and can not afterwards revive the judgment and have a writ of possession.

      Scire Eaoias, to revive a judgment in ejectment. Erom Clark. The writ recites that the plaintiff lately recovered a judgment in the-Supreme Court of the County of Clark, for certain lands and tenements, included in a military survey of five hundred acres, patented to Benjamin Hough, on the 31st of January, 1818, and which survey is within the County of Clark. That execution had not been had of' said judgment. And requires of the defendants to show cause why execution should not issue, etc.
    *The writ was served upon eight of the defendants therein named, and returned nihil as to three others. No second scire facias was ever issued, so that as to those three dofendants there has been no service.
    The defendants who were served with process, pleaded nul tiel record, to which plea a notice is attached.
    The notice sets forth that the damages and costs recovered, in the - action of ejectment, have been paid. That previous to the recovery, the lessor of the plaintiff died, and the land descended upon his heirs. That Allison 0. Looker was appointed his administrator, and was-authorized by a special act of the general, assembly, to act as the-agent of the heirs in the disposition of the real estate descended upon them. That after the recovery of the judgment, to wit, on the 30th day of July, 1821, the said Looker entered into contracts with the-tenants in possession, who were defendants in the action of ejectment, by which he sold them the lands, held by them severally, upon the-terms specified in said contracts. By the terms of these contracts, payment of the purchase money was to be made in one year, but the-time was afterwards extended. There is no allegation that payment was ever made. It is further stated in the notice, that previous to the-death of Hough, sundry judgments were recovered-against him in the Court of Common Pleas of Ross County ; that these judgments were revived by scire facias against his heirs ; that executions were issued-, upon these judgments, thus revived, and levied upon the lands in- controversy. The tenants in possession purchased the land at sheriff’s sale ; the sale was regularly confirmed by the Court of Common Pleas-of Ross County, and deeds ordered to be made, which was subsquently done. These proceedings are all set forth at length with accuracy and precision.
    The contracts referred to in the notice, copies of record of the-judgments in Ross County, the execution pursuant to those judgments, and the returns thereon, the confirmation by the Court of Common-Pleas, and the sheriff’s deeds to the purchasers, were all given in evi- • dcnee.
    The case was submitted to the court at the last term in Clark County, and reserved for decision.
    R. Douglass, for plaintiff.
    S. Mason and Torbert, for defendants.
   By the Court,

Hitchcock, Judge.

In submitting this case to the ■ court, the parties seem to have waved all informal ties, otherwise it might be difficult for the plaintiff to proceed at all with his case, inasmuch *as no service has hitherto been made upon three of the defendants. The sc ire facias itself is defective. It recites that a judgment was lately recovered in the Supreme Court of Clark County, without any reference, however, to the date of the recovery, and we are left in uncertainty, so far as the scire facias is concerned, whether the judgment had been rendered one year or twenty years before its date. It ought, at least, to have been shown that the judgment sought to be revived had become dormant, either from lapse of time or from some other cause. These matters, however, are waived, and the question presented to the court is, whether the facts set forth in the notice constitute a defence to the action, these facts having been fully proved.

In point of fact,'the judgment was recovered in 1820, Hough the lessor of the plaintiff having died in 1819, during the pendency of the suit. By the act of February 18, 1820, “ appointing Allison C. Looker, agent for the heirs of Benjamin Hough, deceased,” the said Looker is authorized and empowered to manage the real estate left by Hough, as fully as Hough might have done while living. Previous to the enactment of this law, Looker had been, by the Court of Common Pleas of Ross County, appointed administrator of Hough’s ■estate. In the fourth section of the before recited act, it is prescribed “ that all acts, deeds, conveyances, and transactions done, and executed, and signed by the said Allison 0. Looker, as agent for the heirs ■of Benjamin Hough, deceased, shall be good and valid in law to all intents and purposes.” Under the authority conferred by this special law, Looker entered into the contracts referred to in the notice. At the time the contracts were made, the purchasers were in possession ■of the premises, and were the defendants against whom the judgment in ejectment had been rendered. If the authority of Looker was ■valid, and this is not questioned by the plaintiff’s counsel, then these contracts must bave tbe same effect they would have bad, bad Hough; himself been living, and bad be made them.

What effect then would a contract far tbe sale of lands by a lessor of a plaintiff in ejectment to tbe defendant bave upon a judgment previously rendered for tbe recovery of tbe same lands ?

The object of an action of ejectment, is to ascertain tbe legal right to the possession of tbe land in controversy, and the fruit of the-judgment, if in favor of tbe plaintiff, is tbe recovery of tbe possession. After a recovery, if tbe defendant abandon tbe possession, which is taken by tbe lessor of the plaintiff, or if tbe defendant surrenders tbe possession to tbe plaintiff, no writ of haberi facias is • necessary. Tbe plaintiff enjoys tbe fruit of bis judgment, as completely as be *would bave done, bad tbe judgment been for money, and tbe money actually paid without execution. In either case tbe judgment is satisfied except as to costs. And under such circumstances, should tbe defendant again enter upon tbe land after a lapse-of years, and dispossess tbe plaintiff, I apprehend tbe owner must again resort to bis action of ejectment, and could not dispossess the-tenant by reviving bis former judgment.

Should tbe lessor of a plaintiff, after judgment, lease tbe land in-controversy to tbe defendant, and should tbe tenant fail in tbe payment of rent, tbe landlord could not, for the purpose of enforcing payment, resort to bis writ of possession under bis judgment. When the tenant takes the lease be admits'tbe right of tbe landlord, and fortbe recovery of rent tbe landlord must look to tbe covenants of tbe lease. From tbe time of tbe execution of tbe lease, tbe relative situaation of tbe parties is changed. The possession of the tenant is not. adverse to, but in accordance with, tbe rights of tbe landlord. His possession for many purposes will be considered as tbe possession of ‘ the landlord. And tbe latter has, in fact, derived all tbe advantage-from his judgment, which that judgment was intended to secure.

So, should the lessor of a plaintiff, after judgment, convey the-premises in controversy to tbe defendant, and afterwards take a writ of possession against tbe tenant, be would be restrained. And certainly in such case, after tbe judgment bad become dormant, it could not be revived.

Tbe principles seem to be applicable to, and decisive of tbe case-before tbe court. After tbe rendition of tbe judgment, tbe land was sold by contract to tbe defendants. By entering into this contract, tbe relative situation of tbe parties was entirely changed. From that; •time the defendants did not hold adversely to, but they claimed under the tit’e of the lessor of the plaintiff. He had secured all he desired by his action. His right was established, it was admitted, and the ■defendants contracted to purchase that right. They were in possession when the contract was made, and with the assent of the plaintiff. They were no longer trespassers, but their possession was legal, and for many purposes it was the possession of their vendor. In fact, they must be held to be precisely in the same situation with any other persons who should have purchased the same land by contract, and taken possession in pursuance of the purchase. And it would be strange, indeed, that a vendor having sold land by contract which had been by him recovered in ejectment, should be allowed to oust *the purchasers in virtue of a judgment which gave him the possession and enabled him to sell.

It is claimed, however, that inasmuch as payments were not made ■according to the stipulations of the contract, that therefore the same is void, and the plaintiff is restored to all his original rights. We think otherwise. By entering into the contracts, the right of the lessor of the plaintiff to take execution upon his judgment, was not •merely suspended, it was gone for ever. If payment was not made .according to contract, he. might have his action for the money, or he might have a new action of ejectment to recover the land, but he.

■ could not revive his former judgment, because that judgment had been virtually satisfied.

Such being the opinion of the court upon this part of the case, it is unnecessary to inquire as to the validity of the sales under the judg•ments in Ross county.

Judgment for the defendants.'


text:
    Patsey Henry and Others v. John Doctor and Others.
    "Where H. conveys to B. and Ms heirs (all residents in Virginia) land in Ohio upon trust, a sale made by another trustee substituted for B. after Ms death by the Court of Chancery in Virginia, is invalid.
    In such case the land descended to B’s heirs in trust, and the trust may be enforced against them, or by the Ohio courts.
    It would be difficult, since Wills v. Cooper, 2 Ohio, 126, to sustain an authority to convey a legal title .to land, except derived from its owner, or from a court of territorial jurisdiction

      Bill in Chancery. From Warren. The bill is filed by the widow and heirs of Moses Henry, claiming nine hundred and twenty-one acres and three quarters of land in Warren county, against the heirs, etc., of William R. Buck. In 1821, Moses Henry and wife, residents of Virginia, conveyed the tract of land in dispute and certain personal property to William R. Buck and his heirs, also of Virginia, in trust, to sell, and pay certain debts, and appropriate the balance on certain conditions. Both Moses Henry and Buck died soon after the deed was made, without execution of the trust by a sale of the land, both leaving heirs at law.
    In 1828, George Baily, one of the beneficiaries of the trust, and certain creditors, instituted proceedings in the superior court of chancery, in Winchester district, Virginia, representing the death of *the trustee, and praying the appointment of another to complete the execution of the trust. Patsey Henry, widow of Moses, and one of the creators of the trust, and to whom the balance of the money, after paying the debts, belonged, and the heirs of Buck, were not parties to these proceedings. One of the heirs of Henry was served with process, the others were made parties by publication, and the matter was taken as confessed by all. Upon hearing, the Chancellor appointed William R. Ashby a trustee, instead of Buck, to complete the execution of this trust, by a sale of the lands in Ohio. The defendants ■claim title under a sale made by Ashby. The plaintiffs pray that the defendants, who claim various interests under Ashby, may be held their trustees ; to set aside all the proceedings under him as substituted trustee ; and to be let in to redeem the land, by payment of the debts under the provisions of the trust deed.
    J. Milton Williams, for plaintiff,
    argued at length, examining the authorities and denying the power of the Virginia court of chancery, to appoint a trustee for real estate in Ohio, etc. etc. He cited the following authorities ; Jer. Eq. Ju. 20, 24, 26, 162 to 167; 4 Kent C. 304, 5, 6 ; 1 Cruise Dig. 524, 5, 6, 539, 481; 3 do. 464 ; 3 Mass. 573; 15 do. 468, 2 Blk. C. 328, 334; Coop. Eq. Pl. 33, 4; Doolittle v. Lewis, 7 Johns. Ch. 45, 47 ; Harrison v. Story, et al. 5 Cranch, 302 ; Lessee of M’Culloch v. Reddish, 2 Ohio, 234, 5 ; Rogers et al v. Allen, 3 Ohio, 488, 9 ; Watts et al v. Waddle, 6 Pet. 396 to 402 ; Nowler v. Coit. 1 Ohio, 519; Wills v. Cooper, 2 Ohio, 124; Adm’s ofWinthrop v. Huntington and wife, 3 Ohio, 327 : St. Clair v. Smith and Milliken, 3 Ohio, 364, 5 : Story Conf. of L. 300, 437, 453, 463, 465, 467, 358, 416; 29 Ohio, L. 25, 6 ; 1 Ch. St. 685 ; 2 do. 786, 1130, 1277 ; 3 do. 1596.

      G-. J. Smith, for defendant Doctor,
    contended that the trust did not lapse on the death of Buck, the trustee, and that chancery had power to supply the trustee, 2 Ohio, 131 ; 2 Ves. 561; 16 Ves. 27 ; 4 Kent C. 338. Buck being a mere naked trustee, having died before executing the trust, the Virginia chancellor, where the parties resided, had power to appoint Ashby trustee, and his sale and conveyance to Doctor in executing the trust is valid. 7 Johns. Ch. 48 ; 6 Cranch, 157, 160; Judge Sherman, 2 Ohio, 131 ; 3 Dal. 370 note; 3 Ves. 447; 1 Bos. and Pul. 133; 1 Ves. 144; 2 Vern. 494; 1 do. 419, 75. Mere-irregularity in the Virginia proceedings will not vitiate them. Though erroneous, they are good *until reversed, and they can not be-impeached' collaterally. 7 Ohio, 198; 3 Ohio, 257, 325, 561, 364; 4 Ohio, 130 ; 2 Pet. 163; 2 Bin. 46. In cases of fraud, trust, or contract, chancery has jurisdiction wherever the persons are found. 6 Cranch, 157, 8, 9 : 1 Vern. 75, 419; 2 Vern. 494; 7 Johns. Ch. 45 ; 4 Kent C. 338 ; 8 Ves. 547.
   By the Court,

Lane, C. J.

Much of the testimony in this case consists in an attempt to prove and disprove fraud in the management of the property. It will be unnecessary for us to examine this, if we find that Ashby, the substituted trustee, had no authority to make sale.

Whether the courts in Virginia could confer any power, under any condition, to convey lands in Ohio, is a question which we need not now examine, although it would be difficult, after the case of Wills v. Cooper, 2 Ohio, 126, to sustain an authority to convey a legal title to land, except derived either from the owner, or from the court of territorial jurisdiction.

In this case, by the death of Buck, the land descended to his heirs. Neither they, the legal owners, nor Patsey Henry, who was the ultimate cestui que trust, with the right of acquiring a title to the land from the trustee by payment of the incumbrance, were parties. Without examining, then, how far the hebs of Henry were affected by these Virginia proceedings, it is plain that Buck’s heirs and Mrs. Henry are not concluded. The legal title still remains in Buck’s heirs, and Mrs. Henry may enforce the execution of the trust, either by the trustees she united in selecting, or by the courts of this State ; or she may redeem the land under the provisions of the deed. The sales, therefore, under the proceedings in Virginia, are held entirely void and set aside, but a compensation should be made to the purchaser,, under the principles of our occupying claimant law.

The caséis referred to a master to take and state, 1. An account of the amount of debts secured by the trust which remain unpaid, with their present holders. 2. The value of the improvements. All further questions are reserved to the further hearing.