author: J. B. Swan, J.

text:
    Francis A. Parish’s Heirs v. Eliphalet Ferris and others.
    "Where.there is a devise in fee to A, but if he “ die without heirs,” or “without children," or “ without issue,” then to B in fee, the words “ if he die without issue,” or words of similar import, are to be interpreted according to their popular and natural meaning, and as referring to the time of the death of A, unless the contrary intention is plainly expressed in the will, or is necessary to carry out its undoubted purposes; and if A have no children or issue living at the time he dies, B takes under such devise.

      Action to quiet title. Reserved in the district court of Hamilton ■county.
    The petition is filed under the code, by the heirs of Francis A. Parish, against the brothers and sisters of Andrew Ferris, to quiet title. The defendants, by counter-claim, allege that they are the owners of the land in controversy.
    The ease depends upon the construction of the will of Andrew Ferris. The facts ai-e briefly these:
    * Andrew Ferris having an only daughter unmarried, on 7th [564 June, 1849, made his will, and thereby devised as follows, to wit:

      “Second. I give to my daughter, Elizabeth A., the use of the two hundred acres, more or less, of land on which I now live (and then described it) ; also, sixty-seven acres, more or less, in section No. 21 (of the same township as the above, describing it), during her natural lifetime. To have full use and control of the same, with the appurtenances to the same belonging, as long as she shall live.

      “Third. I give and bequeath to my daughter Elizabeth’s children (if she shall have any heirs), their heirs and assigns forever, all the above described two hundred and sixty-.seven acres of land, after Elizabeth is done using or occupying it, and at Elizabeth’s death.

      “Fourth. If my daughter, Elizabeth A., shall die without children, then and in that case, 1 give and bequeath the said two hundred and sixty-seven acres of land (above described) to my brothers and sisters, their heirs and assigns forever, after the death of Elizabeth A., as aforesaid.”
    In 1850, after the death of her father, Elizabeth A. Ferris married Francis A. Parish.
    On 17th August, 1852, Elizabeth A. Parish, wife of Francis A. Parish, was delivered of a- child, that lived only about one hour.
    On 22d August, 1852, she made her will, devising- to her husband, Francis A. Parish, his heirs and assigns forever, all her property, and soon after died, leaving no child or children surviving her.
    Andrew Ferris left brothers and sisters, who survived his daughter.
    Francis A. Parish survived his wife, and has since died, leaving the plaintiffs, his brothers and sisters, his heir at law.
    *Worthington & Matthews, for the plaintiffs,
    made the fol- [565 lowing points:

      I. Upon the death of the child of Francis A. and Elizabeth A. Parish, its estate derived under the will of its grandfather, Andrew Ferris deceased, vested in its mother. Swan’s Statutes, 1841, p. 286, sec. 1, p. 4.
    II. Every testator must be held to know what the law allows and forbids, in his testamentary dispositions, and the legal effect of the language used by him. 15 Ohio, 561; 17 Ib. 180; 1 Doug. 341; 11 Wend. 295; 2 Jarman on Wills, 526, rule 16.
    III. When a will is of doubtful construction, the heir at law is always favored. 19 Ohio, 333; 2 Jarman on Wills, 525, rule 5; 1 Ib. 431.
    IY. The words 11 heir or heirs” in a will, may be construed from the context as “ child or children,” if such be the clear intent, and they take as purchasers. 3 Ohio St. 369; 15 Ohio, 559; 19 Barb. 500; 26 Wend. 18; 12 Wend. 84, 92; 3 Ib. 521, 524, 513; 19 Conn. 107; 5 Barn. & Cress. 866; 3 Term, 281; 6 Taunton, 94; 2 Thomas Coke, 129, note e; 2 Cruise Dig. 273; 6 Ib. 209, 203.
    Y. Children, in its primary sense, is a word of purchase, and not of limitation. Heirs, issue, son, etc., are generally words of limitation, but they are all words of purchase or limitation, as indicated by the context or subjectmatter. 15 Ohio, 59; 3 Denio, 490; 1 Sumner, 235; 4 Comstock, 263; 10 Barbour, 393, 395; 10 Met. 502; 6 Coke, 17; Wild’s case; 2 Bos. & Pull. 492; 4 Barn. & Ald. 43; 2 Jarman on Wills, 69, 328.
    VI. Children, in its primary sense, does not include grandchildren, nor any of a degree more remote than children, while doscend586] ants means issue of every degree, and *issue means descendants of every degree. 5 Barbour Ch. 488; 7 Paige, 328; 3 Jarman on Wills, 32, 33, 70.
    YII. The law favors the vesting of estates, that is, the property will vest when the instrument takes effect, or so soon as the taker comes into existence, or contingency.happens upon which the estate is to vest. 1 Jarman on Wills, 726; 3 Term, 494; 21 Pick. 311, 314; 4 Pick. 198; 23 Pick. 468, 469; 5 Mass. 535, 537; 25 Wend. 119, 137; 7 Met. 171; 8 Barn. & C. 231; 17 Eng. L. & E. 13, on vesting.
    Till. A remainder is a vested interest in lands, where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession upon the termination of the precedent estate, provided the estate limited to him shall so long continue. 5 Paige, 466; 2 Thomas Coke, 127, note d; 2 Cruise Dig. 262, 264, 273; 4 Kent Com. 202.
    IX. A vested remainder is an estate in lands, limited on a particular estate, that comes into possession ujion the termination of the particular estate. It is a present interest vested, to come into possession at a future day upon the happening of a certain event.
    A contingent remainder is an estate in lands limited upon a contingency, and does not vest until it happens; and when it does happen, the remainder becomes vested, and ceases to be contingent. It vests before or at the end of the particular estate upon which it is limited. 11 Wend. 268; 2 Thomas Coke, 127, note d, 128, note e; 2 Cruise Dig. 262, 264, 273; Fearne on Remainders, 1-6; 2 Black. Com. 162, 168, 169; 4 Kent Com. 202, 206.
    X. An estate in lands given when or after an event happens, is not contingent, but vested ; but an estate in lands given upon condition, or if until, provided, etc., an event ^happens, is generally . [567 contingent, and does not vest until it happens, but when it happens it ceases to bo contingent, and becomes vested. See application in points 15 and 16. 11 Wend. 268; 4 Sanford, 36; 2 Comstock, 436— the words were “ in case;” 3 Term, 41; 1 W. Black. 519; 25 Wend. 144; 2 Coke, 128, note e, 131, note e; 2 Cruise Dig. *265, *295, sec. 79-86; Fearne on Remainders *167, et seq.; 4 Kent Com. 205; 1 Jarman on Wills, 620, 624, 625.
    XI. The devise of the use of the land to Elizabeth A., was a devise of the land itself. 26 Wend. 229; 9 Paige, 265; 11 Wend. 298; 2 Johns. 391; 7 Casa, 105.
    XII. All future limitations in wills are held to be contingent remainders, and not executory devises, when consistent with the rules of law as to contingent remainders. 11 Wend. 279; 5 Barn. & Cress. 866; 3 Term, 276, 277, note a; 2 Doug. 729; 5 Met. 134, 148; 4 Met. 190; 23 Pick. 287; 2 Comst. 442; Fearne on Remainders, *296, *999; 2 Cruise Dig. 287, see. 59; 6 Cruise Dig. 475, sec. 6-13; 464, sec. 11; 1 Jarman on Wills, 655.
    XIII. A devise to the three children of T. S. D., provided they Jive to legal age, vests an estate upon the death of the testator, ‘subject to be defeated in the event of death before they arrive at age. 17 Ohio, 259.
    XIY. A devise to A and his heirs, in trust for B for life, and to such sons as she might appoint, and after.her death to the use of her heirs, vests in B a fee simple estate, prior to the will act of 1840. 12 Ohio, 287, 290; 5 Ohio, 464.
    XY. A devise to four sons, or the survivors and their heirs, to be -equally divided when the youngest attains the age of twenty-one, ■568] vests an estate in the sons at the death *of the testator, and 'upon the death of the sons, it passes by descent, and not in remainder. 10 Ohio, 37, 41.
    XYI. A devise limited to take effect after a dying without issue, or without heirs, or on failure of issue, or without leaving issue, is hold to be void, because the contingency is too remote, as it does not take place until after the indefinite failure of issue. But if there be any terms to fix the limit upon the definite failure of issue, it will be good. 4 Comst. 257; 2 Comst. 436; 9 Paige, 269; 26 Wend. 232; 11 Wend. 277; 17 S. & R. 61, 441; 16 Johns. 382, 388, 399, 430; 7 East, 321; 6 Term, 589; 17 Vesey, 479; 2 P. Wms. 390; 1 Doug. 75, 264; 2 Doug. 504; 5 Paige, 512; 25 Wend. 126; 2 Jarman on Wills, 300, 297; 5 Day, 517. This case is, in fact, a limitation over to survivors dying without children, and is like the case in 16 Johns. 382, and others of the same kind; 1 P. Wms. 534. The cases in 1 Johns. 439; 3 Johns, 299; 10 Johns. 12; 11 Johns; 377, are like that in 5 Day, 517.
    XYII. In the construction of wills limiting estates after the failure of issue, etc., the courts lean to any circumstance, however slight, to take the case out of the rule of the indefinite failure of issue. 16 Johns. 382; 11 Johns. 337; 10 Johns. 16; 3 Johns. 189; 1 Johns. 440; 8 Johns. 348; 8 Simons, 4.
    XYIII. The devise to Elizabeth A. vested in her a life estate. 'The devise to her children (if she should have any heirs), their heirs and assigns forever, and if she died without children, then •and in that case, to his brothers and sisters, etc., created alternative remainders, and upon the birth of her child the remainder vested .absolutely in such child and its heirs, subject to- open and let in after born children, but cut off the remainder over to the testator’s 569] ^brothers and sisters. 4 Comst. 257; 2 Comst. 436, 2 Barb. Ch. 314, 320; 26 Wend. 229; 9 Paige, 265; 5 Paige, 512; 3 Wend. 503; 17 S. & R. 441; 12 Gill & Johns. 83; 10 Yerger, 292; 1 Sails, 224; 1 Lord Raymond, 203, 208; 2 Wm. Black. 777; 3 Wilson, 237, 241 246; 1 Doug. 264; 2 Doug. 504, note; 7 East, 521; 5 Barn. & Cress. 866; 15 Con. Eng. Ch. 240; 7 Taunt. 362; 1 Sumner, 243; 7 Cush. 105, 508; 11 Eng. L. & Eq. 60; 30 Eng. L. & Eq. 367; 20 Eng. L. & Eq. 72.
    XIX. The devise to Elizabeth’s children (if she should have any heirs), their heirs and assigns for ever, after Elizabeth is done using ■or occupying it, and at Elizabeth’s death, does not postpone the vesting of the estate in her child or children till her death, but points to the time when possession is to be taken by her child or children. 2 Thos. Coke, 131, note e; Fearne on Remainders, 241; 2 Cruise Dig. *295, secs. 79-86; 1 Jarman on Wills, 620, 624, 625; 3 Term, 41; 2 Johns. Cases, 314; 7 Adolph. & Ellis, 636; 2 Keen, 240; 3 Coke, 19; 14 East, 601; 1 Sumner, 243; 4 Pet. 90; 16 Eng. L. & Eq. 550, is upon a condition precedent, and of course the estate can not vest until after the condition happens.
    XX. In the devise to Elizabeth’s children (should she have any heirs), the word heirs means children. 3 Ohio St. 369; 19 Barb. 500; 15 Ohio, 59; 12 Wend. 83; 3 Wend. 513, 524; 26 Wend. 9; 3 Term, 143; 7 Mees. & Welsby, 293; 1 Doug. 266, 341; 3 Call. 351; 5 Barn. & Cress. 866; 1 Sumner, 241, 244; 2 A. K. Marsh. 465; 19 Conn. 107.
    The testator means to show by the parenthetical clause (“if *she shall have any heirs”), that he then had in his mind [570 the fact that his daughter was a maiden and had no children, and possibly might not have any. Without it, the will would assume, contrary to the fact, that she then had children.
    XXI. “If my daughter Elizabeth A. shall die without children,” means “ shall die without having had children,” and not leaving children surviving her. 7 Cush. 105, 508; 1 Doug. 264; 2 Doug. 504; 7 East, 521; 3 Call. 352; 3 Term, 484; 16 Johns. 382, 399, 26 Wend. 229; 9 Paige, 265; 5 Paige, 512; 5 Russell & Mylne, 416; 2 Comst. 436; 2 Jarman on Wills, 273, 302; 30 Eng. L. & Eq. 267; 20 Eng. L. & Eq, 72.
    XXII. The limitation to Elizabeth’s children and their heirs was a contingent remainder in fee. The limitation over, if she should die without children, was also from necessity a contingent remainder in fee, because there can not be a vested remainder after a limitation in fee, or mounted on a remainder or limitation in fee, inasmuch as a limitation in fee exhausts the entire estate in fee. 4 Comst. 257; 2 Comst. 436; 2 Barb. Ch. 314; 9 Paige, 265; 26 Wend. 229; 7 Cush. 105; 4 Pet. 90; 1 Doug. 264; 2 Doug. 504, note; 1 L. Raym. 203; 2 W. Black. 777; 3 Term, 484; 7 East, 521; 3 Wilson, 237; 1 Keen, 240; 2 Russell & Mylne, 416; Fearne on Remainders, *291, *295; 30 Eng. L. & Eq. 267; 20 Eng. L. & Eq. 72.
    XXIII. All limitations over after a prior limitation, are divisible into three classes:
    1. They are alternative only.
    2. They are in succession only.
    3. They are the one or the other.
    *1 Doug. 75, 77; 2 Doug. 504, note; 2 P. Wms. 390; 4 Kent Com. 200.
    XXIY. The limitation over, 'if Elizabeth die without children, refers not to the failure of the issue or heirs of such children, but the failure of the children of Elizabeth, and can not be extended beyond the words used. It is the failure of her children altogether that casts the estate over, but having had children, the limitation over was cut off. Fearne on Remainders, *295; 2 Jarman on Wills, 170; 7 East, 521; 1 Doug. 264; 3 Term, 484; 5 Paige, 512; 9 Paige, 265; 26 Wend. 229; 10 Yerger, 292; 7 Cush. 105; 1 Keen, 240; 2 Russ. & Mylne, 416.
    XXY. The policy of society is opposed to all restraints upon the alienation of real estate, and hence, prior to the introduction of uses and executory devises, remainders limited upon remote contingencies or possibilities were held void, and since perpetuities have been limited to lives in being, and twenty-one years under uses and devises, but remainders stand upon the old ground of contingencies or possibilities, proximate or remote. 1 Jarm. on Wills, 250; 2 Jarm. on Wills, 515; 15 Pick. 104; 20 Wend. 564; 8 Paige, 104; 3 J. J. Marsh. 91; 26 Wend. 229; 8 Conn. 363; 4 Kent Com. 271.
    XXYI. In the case of Ferris’ will, the limitation over is in ease his daughter should die without children. It will be seen where the limitation over is when a devise is for life, and remainder to children and their heirs, and for default of issue means for default of children, and so construed vests an estate in fee in children. 2 Jarm. on Wills, 267, 297; Fearne on Remainders, *295; 1 Doug. 264; 5 Paige, 512; 26 Wend. 229; 4 Comst. 257; 7 Cush. 105; 30 Eng. L. & E. 267.
    *XXYII. In the case at bar, the testator could not have intended the estate given to the children of his daughter not to vest in interest until her death, but if she had had children, who died in her lifetime having children who survived her, such children ■could not take, yet the testator intends that her children and their heirs shall take the estate in possession at the death of their mother. 3 Term, 484; 11 Eng. L. & E. 60 (see this case); Willes, 348; 1 Doug. 264; 1 Keen, 240; 2 Jarm. on Wills, 270, 273; 30 Eng. L. & E. 267.
    XXVIII. The rule of law as to the definite or indefinite failure of issue, when unexplained by the context, applies alike to real and personal estate. There are two exceptions to this rule: 1. Leaving no issue as to personalty, imports failure of issue at death, but as to realty, a general indefinite failure of issue; 2. "When the testator having no issue devises property in default of issue of himself, imports a failure of issue at death. 2 Jarm. on Wills, 300, 307, 317; 11 Wend. 277.
    XXIX. The failure of issue is restrained to such failure at death as to real estate: 1. "When dying is confined to a definite age; 2. "When there are superadded words showing a restricted sense; 3. "When the subject-matter and the ulterior devise required a restricted sense; 4. "When the ulterior devise confers only a life estate; 5. Overcharging the devise with money to be disposed of by will by the first devisee. 2 Jarm. on Wills, 307, 310-313, 317; 4 Kent Com. 277; 16 Eng. L. & E. 550, 1 category; 2 Mass. 56, 2 category; 5 Day, 534, 2 category; 4 Eng. Ch. 163, 2 category; 7 Paige, 328, 2 category; 14 N. H. 224, 3 category; 4 Conn. 257, 5 category.
    XXX. The phrase, dying without children, is identical with the phrase, dying without issue. They do not either *of them [573 point to the death of the first taker, without superadded words. There is no distinction between them. 2 Jarm. on Wills, 82; 5 Day, 534; 5 Mass. 56; 16 Eng. L. & E. 550; 7 Paige, 328, 332; 4 Eng. Ch. 163. This case turns upon superadded words, “ in case of her death.” 14 N. H. 224. “ To heir her estate,” controls. 1 Denio, 165. “ Without issue at his death,” controls. 4 Barb. 427. “ Leaving at the time of his death,” controls. 2 Jarm. on Wills, 317, relates to personalty, and not realty. 1 Ib. 618, is upon the effect of superadded words explanatory of the intent of the testator. 2 Comstock, 436. The words “in case ” are superadded, and point to “ after death.” 2 Jarm. on Wills, 82. The case of Thicknosse v. Eeige has superadded explanatory words.

      Taft, Key & Perry, and George R. Sage (with whom were Mal
      Ion, and James & Jackson, and Johnson & Garroll), of counsel for the defendants,
    made the following points :
    I. Thai, where a testator devised to his daughter a life estate in land, and after her death the fee to her children (if she should j’ have any heirs); and if she should die without children, then 10 the testator’s brothers and sisters and their heirs, the intent of the testator must prevail.
    II. That by such a devise the testator intended that the event on which the fee should go over to his brothers and sisters should be, not the indefinite failure of the issue of his daughter, but hex* death without children or descendants, living at her death.

    1. We insist that the additional words and circumstances of this will, beside the phrase “ die without childx'en,” are sufficient to fix the death of Elizabeth as the time when the executoxy estate was to commence, and that if she had no childx'en then, the estate went 574] over to the brothers and sisters of the testator. Croke (James 1.), 590; 1 Br. Ch. 190; Porter v. Bradley, 3 Term, 143; Doe v. Webber, 4 E. C. L. 738; Pinbury v. Elkin, 3 P. Wms. 564; Forth v. Chapman, 1 P. Wms. 664; Nichols v. Hooper, Ib. 199; Hughes v. Sayer, Ib. 534; Fosdick v. Cornell, 1 Johns. 449; 3 Johns. 292; 10 Johns. 14; Benton v. Patterson, 8 Ga. 146; Kemp v. Daniel, Ib. 385; Carlton v. Price, 10 Ga. 495.
    2. We claim that in the State of Ohio the legal as well as the popular and natxxral sexxse of the words “ dying without children,’» or issue, etc., is without children, etc., at the death ; and that the courts do ixot require the aid of additional words. Morgan v. Morgan, 5 Day, 517; Beauclerk v. Dormer, 2 Atk. 308; Brewster v. Benedict, 14 Ohio, 383; King v. King, 15 Ohio, 561; Daniel v. Thompson, 14 B. Mon. 662; Harris v. Smith, 16 Ga. 545.
   J. B. Swan, J.

The second item of the will of Ferx'is creates an estate for life in Elizabeth, his daughter. By the third item the devises to Elizabeth’s children (if she shall have any heirs) the same lands in fee. The foux’th item provides that if Elizabeth shall die without children, the same lands shall pass to his brothex-s and sistex's.

It is claimed by the plaintiffs that the foux’th item of the will: “If my daughter, Elizabeth A., shall die without childx’en, then and in that case, I give and bequeath said laxxds to my brothers and sisters, their heirs and assigns forever, after the death of Elizabeth A., as aforesaid,” is a limitation, upon the estate in fee of the children of Elizabeth A.; that an estate tail in her children was created by the words, “ if Elizabeth A. shall die without children,” and the estate in them was thereby limited to the issue and the issue of the issue of such children until their extinction. *In [575 other words, Ferris intended, by the fourth item of his will, to cut down the fee simple created in the children of Elizabeth by the third item of his will, to a fee tail, and thereby create an estate-tail in the issue of Elizabeth, limited only by the indefinite failure of such issue.

It is the settled law of England, and has been followed in many of the states in this country, that where there is a devise in fee to-A, but in case he die “without heirs,” or “without issue,” or “ on failure of issue,” then to B in fee; the words, “if he die without issue,” or words of similar import, do not mean, as the terms obviously import, a dying without issue at the time of the death of A, but means a failure of issue whenever it shall happen, and that these words are not satisfied until the issue and the issue of the issue of A and their descendants become extinct. Under this construction of such terms in a will, the estate of the issue of A is considered an estate tail, limited only by an indefinite failure of issue, and consequently that, when there is no longer any issue of the issue of A, the estate would devolve upon B. The courts, first perverting the language of the will by holding that these words created an estate tail limited only by an indefinite failure of issue, declared such a limitation void, because the contingency, upon which the estate of B would accrue, was too remote, depending, as it did, upon a general failure of issue. It is quite difficult to comprehend how the words, “if he die without issue,” should be taken to mean whenever his issue shall fail indefinitely at and after his death, or how a man who has died with issue living can ever afterward be said to have died without issue.

This strange construction of such words seems to have arisen from the language of the statute de donis, regulating estates tail, which required that when lands were given by one to another and the heirs of his body, such lands should remain unto the issue of them to whom it was given after *their death, or should [57i> revert to the donor or his heirs if issue fail.

The English courts, as if to judicially announce that this construction of such words was forced and unsound, have held that the same words, when used in relation to the disposition of pereonal property, meant simply if A, the first taker, dies without issue living at the time of his decease. And the English judges, who have deplored this absurd and unreasonable perversion of the meaning of the words, and disregard of the. intention of testators, have, notwithstanding, invcterately but reluctantly followed this construction of devises in respect to real estate, because imbedded in the peculiar and complicated, system of English titles.

The English courts, however, have sought, with eager ingenuity, words in wills or circumstances which would avoid the rule. Thus it has been held that if the limitation over was upon the first taker dying without issue living, or dying without leaving issue behind him, that the will meant issue living at the death of the first taker. But the disposition in this country to break in upon the old English construction upon this subject is very manifest. Thus, in the case of Morgan v. Morgan, 5 Day, 517, which was like the case now before us. In that case A devised his real estate to his sons B, C, and D, “their heirs and assigns foreverand in case either of his sons should “ die without children, his brothers should have his part in equal proportions.” B married, and had issue, a son, who died during the life of B. B died, and left no children living at the time of his death. The court held that the limitation over was good by way of executory devise, and that the words, “ die without children,” was intended a dying without children living at the death of B. In Harris v. Smith, 16 Georgia, 577] 545, a testator devised land to A, and if A ^should “ die leaving no lawful heirs, then, and in that case, it is my will that all of the said property shall be divided, share and share alike, between the children of B.” It was held that the words, “ die leaving no lawful heirs,” were equivalent to the words to “ die without children,” which were equivalent to die without children living at the death of A.” In the case of Anderson v. Jackson, 16 Johns. 382, it was decided that after the devise to the sons of A and B in fee, the limitation, that if either should die without lawful issue, his share to go to the survivor, was good as an executory devise, and that the true construction was a failure of issue, living at the death of the first taker. It will be perceived from these cases, and others might be cited to the same effect, that in those countries where the old English interpretation of the words, “if he die without issue,” have not been expressly disclaimed, courts have constantly evaded that interpretation by seizing hold of circumstances and words deemed sufficient to establish the natural sense of the words; so that the interpretation and effect of these words may be considered a rule of property, depending upon the variable opinions and feelings of judges, some of whom may think these words sufficiently restricted by other words or cireum - stances, which other judges may consider as wholly inadequate.

It is a singular fact that with the repeated decisions of the English courts upon this subject, testators, from generation to genera•ation, persisted in using these natural words, and which were held to be inoperative and void, until, in the first year of the reign of the present Queen, a statute was passed declaring that the words “ die without issue,” or other words which may import a want or or failure of issue, should be construed to mean dying without issue living at the death of the person, and not an indefinite failure of issue, unless a contrary intention appear by the *will. The [578 English rule adopted in Virginia, and in a modified form in New York, has met the same fate by legislative interposition. In Ohio, as in Kentucky, the English rule of interpretation has never been sanctioned; and in the latter state the subject was very fully considered in the case of Daniel v. Thomson, 14 B. Mon. 662; and the English rule was rejected as one unknown to the community; contrary to the natural sense and common use of words ; founded upon laws and estates inapplicable to titles in Kentucky, where, as here, estates tail are abrogated; and so evaded by courts as to be made to depend upon the discretion and variable opinions of judges. If there be any rule of interpretation of words which defeats the intention of the testator, and to which the following language of Justice Hitchcock is applicable, it is the English rule now under consideration: “ I must be permitted to say that these rules, in most eases, are applied not for the purpose of ascertaining, but of defeating the intention of the devisor. In this state, however, we are required by statute, to carry out this intention ; and I presume no such statute would have been passed, had it not been supposed that these antiquated rules of construction were too much regarded by our courts.”

We are all of the opinion, for the reasons which have been indicated, that the words, “ if he die without issue,” or “ without leaving issue,” or “heirs of his body,” or “children,” or other words of similar import, are to be interpreted according to their plain, popular, and natural meaning, as referring to the time of the person’s death, unless the contrary intention is plainly expressed in the will, or is necessary to carry out its undoubted purposes. We could, without impeaching the old English rule of interpretation, find in the words of the will before us, and in the fact that the broth-579] ers and sisters of the testator were living at the *time he made his will, sufficient to restrict the contingency and the devise over, to the time of the decease of his daughter. But we are unwilling to make an exception by which we sanction the English construction of the words under consideration, as referring in general to an indefinite failure-of issue, and at the same time make the case before us an exception to that rule ; thus leaving open a wide field of uncertain interpretation of words and circumstances, so that'no man would know the nature of an estate which depended upon the interpretation of these or the like words, until there had been a decision on the particular will, on which the question might arise.

If the English rule of interpretation had been recognized by our courts as a rule of property we would not disturb it. It would then be a fit subject of legislation. But it never has been recognized ; and the uniform course of the decisions of the courts of this state has been to so construe wills as to carry into effect the intention of testators. To adopt the English rule, is clearly to defeat what every person must acknowledge is the real and the lawful intention of testators; it is to presume that a testator intended to create an estate forbidden by our statute relating to entailments; and a rule too, which, wherever recognized by courts, has been changed by legislation.

Indeed, the only certain and stable principle is to hold that these words in a will, as in other cases, must be taken in their natural sense, unless a contrary intention is plainly expressed.

Applying this rule to the case before us, the will provides that if Elizabeth should die without children, the estate should pass to the brothel’s and sisters of the testator. Elizabeth had no children, nor grandchildren, when she died, and the contingency provided for by the will — -the existence of children — at that time occurred. Upon 580] her ^decease the title vested in the brothers and sisters of the testator, and, under the counter-claim, judgment must be entered accordingly.

Bartley, C. J., and Brinkerhoee, .Bowen, and Soott, JI., concurred.


source: Caselaw Access Project

author: Brinkerhoff, J.

license: Public Domain

text:
    James Blake and others v. Wm. Graham and others.
    A subsequent purchaser of real estate, without actual notice of prior equities,, is not chargeable with constructive notice of such equities, although the same may be disclosed in the recitals of an unauthorized deed duly recorded from the executors of a'person through whose heirs the subsequent, purchaser claims title.
    Reserved in Tuscarawas county.
    The facts appear in the opinion of the court.

      Mason & Estep, for the plaintiffs.

      J. C. Hance, for the defendants.
   Brinkerhoff, J.

The plaintiffs bring their action under the-code, in the nature of a bill in chancery, to quiet title to, and obtain partition of, a piece of land in Tuscarawas county described in the petition, and in the possession of the defendants.

In the year 1800, Dr. Felix Lynn, of Northampton county, Pennsylvania, was the undisputed owner of the premises in controversy, and is the source of title common to both parties.

In 1807, Dr. Lynn made his last will and testament, directing the-•sale by his executors, of certain lands therein ^described, and [581 authorizing his executors to make deeds for the same to the purchasers ; but, in his will, he does not in any way refer to, or mention, specifically, his lands in Ohio, and, at the close of his will, and following immediately after the clause naming'his executors, he authorizes them to make and execute all deeds of conveyance, “ according to this, my last will and testament.”

Dr. Lynn having died, on the sixteenth of January, 1809, his will was proved in Northampton county, Pennsylvania, and letters testamentary were issued; but the will was never admitted to probate in Ohio, nor were any other proceedings ever had to effectuate the same under the laws of this state.

On the first day of May, 1809, Dr. Lynn’s executors executed in Northampton county, Pa., a deed in fee simple for the land in controversy to George Kintner, reciting therein that Dr. Lynn, in his lifetime, had executed to John Heckawelder a power of attorney, him to make sale óf these lands; that Heckawelder had, .accordingly entered into contract for their sale to said Kintner, and had received a part of the purchase money thereof in the lifetime of Dr. Lynn; that they, as executors, had received the balance of said purchase money, in consideration of all which, etc., they make the deed.

Under this title thus conveyed, and through sundry subsequent ■conveyances and descents, the plaintiffs claim.

In 1838, the New Philadelphia Lateral Canal Company, being in possession of the premises in dispute, and suspecting the invalidity ■of the title under which it then held them, procured from the heirs •of Dr. Lynn, “ in consideration of one dollar to them in hand paid,” .a deed of bargain and sale in fee simple, but without warranty, for the premises.

In January, 1842, the canal company conveyed to Fleming 582] ^Willet; and in June, 1844, 'Willet conveyed to the defendant, Graham; and under this title the defendants claim.

Before proceeding to the consideration of the principal questions in the case, it will be proper to observe, that all the deeds above mentioned were duly recorded in the order of their dates; that the circumstances of the case, as they appear in the proofs, are not .such as to give rise, on the part of either plaintiffs or defendants, to any claim under the statute of limitations; it is not claimed that the defendants had actual notice of plaintiffs’ claim to the premises; aor is it urged, in behalf of the plaintiffs, that the conveyance by the executors of Dr. Lynn to Kintner vested in Kintner, or in those claiming under him, a perfect legal title to the premises. And if it were urged, we think it could not be maintained. The will of Dr. Lynn directed certain lands to be sold, but in no way mentioned or referred to these lands; it then authorized the executors to make conveyances according to the will; and we are of opinion that, by any proper construction of the will, the application of the powers conferred by the latter clause must be restricted by the ■directions of the former.

But, admitting that the will, by its terms, authorized the executors to convey these Ohio lands, still it could, being a foreign will, have, of itself, no extra-territorial force or effect. To give it effect in Ohio, it was necessary that it be admitted to probate in Ohio; and, in order to enable the executors to carry into effect the real contracts of the testator, in respect to-lands in this •.state, an order of the court of common of the in which the lands were situate was requisite. 1 Chase’s Stat. 480, 563, 572.

It is, however, claimed by the plaintiffs, that the facts recited in. the deed of the executors of Dr. Bynn to Kintner, to wit, that Dr. Lynn, in his lifetime, had authorized *Hockawelder to sell [583-these lands; that he had, prior to the death of Lynn, contracted to-sell them to Kintner, and received a part of the purchase money; and that the balance of the purchase money was paid by Kintnerto the executors, constitute an equitable title in favor of Kintner, and those holding under him, which may be enforced in equity against a subsequent purchaser, with notice. They furthermore-claim, that the deed from the executors of Dr. Lynn to Kintner, having been duly recorded, the defendants, claiming under a subsequent deed directly from the heirs of Dr. Lynn, were bound to-take notice of the recorded deed from the executors of Lynn to Kintner, and are chargeable with a knowledge of the facts stated in its recitals. And these facts being established in the proofs to our reasonable 'satisfaction, a question of constructive notice — decisive of this case — is presented.

Were the defendants, being purchasers without actual notice of the deed of Dr. Lynn’s executors, bound to take notice of that deed, and are they chargeable with knowledge of its recitals?

It is well settled that the record or registry of a deed is constructive notice only to those who claim through or under the-grantor by whom such deed was executed. Leiby v. Wolf, 10 Ohio, 83; Stuyvesant v. Hall, 2 Barb. Ch. 158; Murray v. Ballou, 1 Johns. Ch. 574, 575; Keller v. Nutz, 5 S. & R. 252, 254; Lightner v. Mooney, 10 Watts, 412; Bates v. Norcross, 14 Pick. 224. In the last-named case the court say: “ To hold the proprietors of land to-take notice of the records of deeds, to determine whether some-stranger has, without right, made conveyances of their lands, would be a most dangerous doctrine, and can not bo sustained with any color of reason or authority.” “ Where a purchaser can not make-out a title, but by a déed which leads him to another fact, he shall be presumed *to have notice of such fact.” Fonb. Eq., book 3, [584 ch. 3, sec. 1, note b.

“ A purchaser of the legal title can not be affected by any latent equity of which he has not actual notice, or which does not appear on some deed necessary to the deduction of his title. 2 Sugden on Vendors, ch. 17, note 430.

These rules rest-on the obvious reason, that a searcher can be fairly supposed to be made acquainted with the contents of such ■deeds only as, in the process of tracing, link by link, his chain of title on the record, necessarily pass under his inspection.

Now, to apply these rules to the case before us. The grantors in the recorded deed, of which and its recitals it is claimed the defendants were bound to take notice, are the executors of Dr. Lynn; but the defendants do not claim through them; nor do they claim through that deed. They make a perfect legal title without reference to that deed, and did not, and had no occasion to, offer it in evidence. They deduce no title through it, nor from the grantors named in it. They claim title from and through the heirs of. Dr. Lynn, and not from or through his executors; and as to them, and those under whom they claim, the executors are mere strangers and unauthorized volunteers. This application of well-settled rules is, wo think, decisive of the case.

We are of opinion that the defendants are not chargeable with notice of the recitals in the deed from the executors of Dr. Lynn, -nor of the latent equities therein disclosed.

Petition dismissed.

Bartley, C. L, and Swan, Bowen, and Scott, JJ., concurred.


author: Bowen, J.

text:
    *Joseph R. Williams v. Daniel Sprigg.
    A conveyance by deed can take effect, as such, only upon the legal execution and delivery of it to the grantee; but an imperfectly executed deed may operate as a contract of sale from the grantor, so as to create an equitable estate in the purchaser, if it be plainly shown that the instrument was intended as a conveyance of the land, and was accepted and treated as such by the vendee.
    ■Constructive notice of a prior equity, arising from the use and occupation of land, must, to charge a subsequent purchaser, be communicated by such acts as can be readily seen and understood — by something so tangible in form as to induce inquiry about the ownership and extent of the right thus to occupy. The use of a vacant, unimproved town lot, by the owner and his tenants of adjoining premises, as a yard in which to hang out and dry clothes, will not prevail as constructive notice against an interest acquired, while so used, by a bona fide mortgagee.

      'When a lot of land is held by tenants in common, and for the purpose of quieting the title by bill, the complainant who purchases from one of the tenants, and relies upon his possession taken under his purchase, as constructive notice to one claiming by later title from the same grantor, if the last purchaser have no actual notice of complainant’s equity, he is chargeable only •with knowledge of the interest of the co-tenant, who holds the legal title to the undivided interest. The occupation of the lot will, in the absence of proof to the contrary, be presumed to be the act of such part owner, and need not be regarded for any other purpose.
    In chancery. Bill to quiet title. Reserved in Lucas county.
    Edward Bissell made his deed, purporting to convey the whole of lot No. 311, in the Vistula division of the city of Toledo, to the complainant, for a consideration (Darned) of $3,000. The deed was acknowledged and filed for record on the 1st of June, 1838, but dated May 26, 1837. On the 10th of April, 1839, Benjamin F. Stickney conveyed, by a quitclaim deed, the same premises to the complainant, which *was recorded on the 18th of Juno, 1839. The [586 complainant claims under these two deeds.
    On the 12th of October, 1837, said Edward Bissell and his wife made to the defendant, then and ever since a resident of the city of Baltimore, in the State of Maryland, a mortgage upon said premises, and other lots in Toledo, to secure the payment of $6,996, in two equal annual installments, from the date thereof, and the same was deposited for record October 20, 1837. This mortgage was dated June 28, 1837, and contained a clause authorizing the defendant, in ease of default in the payment of the money secured, to sell the premises in manner provided by law. Subsequently, the defendant filed a petition to foreclose this mortgage, without making any party to his proceedings but the mortgagor. In March, 1843, a decree for $9,170 was, by the court of* common pleas, rendered for the defendant. All of the property described in the mortgage was appraised by freeholders, under the direction of the sheriff, at $4,400, which sum being insufficient to satisfy the decree, the equity of redemption of Bissell was declared to be barred, and a deed ordered to be made to the defendants for the several lots embraced in the mortgage, which, on the 2d of August, 1843, was by the sheriff accordingly done. The defendant now claims to hold the lot in controversy by virtue of said decree of foreclosure, but has never taken any steps against the complainant or his title, except by his defense in this suit. JBEe denies any knowledge of complainant’s equity in the premises at any time before March, 1841, and claims the entire lot, under his mortgage from Bissell and the proceedings to foreclose it, and also sets up a claim for taxes, by him paid for several years, on the lot.
    Benjamin F. Stickney was the original patentee of the land, and 587] *conveyed three-fourths of lot 311 to Bissell before the deed of the latter was made to complainant. The title to the other fourth part of the lot remained in Stickney till his conveyance to complainant, in 1839.
    The bill prays that the title of the complainant to lot 311 may be quieted as against the defendant’s claim thereto.
    Bissell has been examined as a witness, and states that complainant was the owner of the “American Hotel,” in Toledo, and that, lot 311 adjoined the hotel premises, and was unimproved by buildings; and whether it that year laid open as a common he can not positively say, but has an impression that the front fence was built, that summer. The lot was used principally as a yard in which to hang out and dry clothes, and for such other purposes as would be-convenient in the establishment, by the tenants of the hotel; and that Daniel Segur was, during 1837, such tenant; that the deed by him to complainant “ was signed and acknowledged at the respective times which the deed imports;” that he keeps a record of conveyances, and in his record the lot is set down as conveyed May 26, 1837.
    Other witnesses state, in substance, the same as Bissell does in regard to the possession and use of the lot by complainant. It is-shown to have had a fence on the west side of it; and beside the use of it by Segur as a clothes-yard, it had contained lumber and other trash that accumulated there when the hotel was being built, which Mason, one of them, says' he thinks were removed by complainant; that he thinks he saw the latter at work there some time in the summer of 1837; and that in May, June, or July, of 1837, he thinks Segur was in possession of the lot, using it in manner aforesaid, in connection with the hotel.
    Segur was examined as a witness by complainant, and stated that he went into possession of the hotel under Williams, in September, 588] 1836; but the question was not tasked him, nor did he state, whether, in any form or for any purpose, he occupied lot 311 during any portion of the time that he was tenant of the hotel.

      The “ American Hotel” is situate on lots 309 and 310, and covers the front of them. Lot 311 adjoins the hotel lots.

      Sill & Pratt, for complainant,
    made the following points:
    1. A deed, though imperfectly executed or not acknowledged, and insufficient to pass the legal title, is still good to pass an equitable title; it would be good as a contract for conveyance, and could be enforced in equity. Pritchard v. Brown, 4 N. H. 397; Burr v. Hatch, 3 Hammond, Ohio, 663; Carr v. Williams, 10 Ohio, 309.
    2. A purchaser of the land with either actual or constructive notice of such title, would bo.bound by and purchase subject to it. See same Ohio cases above cited.
    3. Possession of property by the holder of an equitable unrecorded title at the time of the conveyance to a subsequent purchaser, is good constructive notice to the subsequent purchaser of the prior claim. Tuttle v. Jackson, 6 Wend. 226; Brice v. Brice, 5 Barbour, 548; Welch v. Welch, 5 Ohio, 267; Kelly v. Stanbery, 13 Ohio, 408; Norcross v. Widgeny, 2 Mass. 508; Daniels v. Davison, 16 Vesey, 248-255; Spafford v. Manning, 6 Paige, 383; Webster v. Maddox, 6 Greenl. 256; Kent v. Plumer, 7 Greenl. 464.

      William Balter and J. J. French, for respondent:
    I. If the instrument of conveyance from Bissell to Williams be technically a deed, what áre the respective rights of the parties?
    1. It is well settled that a mortgagee is a purchaser. 1 Greenl. Cruise, 450; 4 Greenl. Cruise, 433, and note; Minor *v. Wal- [589 lace, 10 Ohio, 405. Sprigg, the respondent, then, is a subsequent bona fide purchaser.
    2. Swan’s Stat. 267, sec. 8, governs this case, and is the same as Swan’s Revised Stat. 310, sec. 8.
    Under this statute Sprigg must have had actual notice — notice in fact — knowledge—of Williams’ prior unrecorded deed, in order to-be divested of his subsequent title.
    II. If the instrument of conveyance, from Bissell to Williams, be technically not a deed, what are the respective rights of the parties ?
    1. At the time of his purchase, Sprigg had no constructive notice whatever of Williams’ equitable title.
    As to tho definition of “ constructive notice,” see McMahon v. Griffin, 3 Pick. 154; Story Eq. Jurisp., secs. 398-400, and note; 400 a.; 4 Greenl. Cruise, 452, and note; Jackson v. Giver, 8 Johns. 140, Norcross v. Widgery, 2 Mass. 509; Kendall v. Lawrence, 22 Pick. 545; Webster v. Maddox, 6 Green, 256; 4 Kent Com. (7 ed.) 179; Hive v. Dodd, 2 Atk. 275.

      2: “ Constructive notice arising from tenancy does-not extend beyond the tenant’s title, or apply to the title of the lessor under whom the tenant holds.” 4 Kent Com. (7 ed.) 190, and note; 2 Sugd. on Vend. (Am. from 9th London ed.) ch. 17, p. 399 (original p. 293); 2 Greenl. Cruise, 215 (original p. 196); 1 Story Eq. Jurisp., sec. 400; Daniels v. Davidson, 16 Ves. 249; Attorney-General v. Blackhouse, 17 Ves. 293.
    3. And we also claim that possession is constructive notice of no other interests than his, the possessor’s. And this position, we submit is fully established by the authorities above cited.

      Sill & Pratt in reply:
    I. Sprigg is not to be regarded as a Iona fide purchaser. Holliday 590] *v. Franklin Bank Of Columbus, 16 Ohio, 533-537; White v. Denman, 1 Ohio St. 110-114; Carter v. Goodin, 3 Ohio St. 75; Bloom v. Nogle, 4 Ohio St. 45.
    II. Complainant’s possession was sufficient to make a ease of constructive notice. It was actual, visible, notorious, open, continuous, and adverse. Hanrick v. Powell, 9 Ala. 409; Matthews v. Demeritt, 22 Maine, 312.
    Where a grantee planted willows upon land which he cut and used every year in his business as a basket-maker, his possession -was held sufficiently actual and notorious, to supply a failure to register his deed. Krider v. Lafferty, 1 Whart. (Penn.) 303.
    III. Possession by Segur, the tenant, was sufficient to protect the title of complainant. Ware v. Egmont, 31 Eng. L. & Eq., 89, 97; Sailor v. Hertzog, 4 Whart. (Penn.) 259.
    To record complainant’s defective deed would have been of no ravail. Swan Stat. 308, secs. 1, 7, 8; Bank of Muskingum v. Carpenter’s Adm’r, 7 Ohio (pt. 1), 21; Lake v. Doud, 10 Ohio, 415; White v. Denman, 1 Ohio St. 110.
    In conclusion, upon this point, we maintain that whatever may be the correct rule, as to constructive notice by possession of a tenant in other cases, where the landlord’s title is within the terms ■or policy of the recording acts, in this case where the landlord’s title was not within the terms or policy of the recording acts, possession by the tenant was sufficient; and so we understand the rule to have been expressly laid down in Hood v. Fahnestock, 1 Barr. (Penn.) 470. Conceding that the defendant’s equity is in other respects equal to the complainant's, still the complainant has a precedency in time, and must prevail
   Bowen, J.

Is the complainant entitled-to have a decree quieting ■*his title to the whole of the lot in dispute, upon the facts [591 .above disclosed?

In answering this inquiry, it seems proper, in the first place, to ascertain when he acquired an interest in the property, and whether the defendant’s lien had not, previous thereto, been perfected by virtue of the mortgage under which he claims. This latter instrument took effect and became operative on the 26th of October, 1837, as a valid incumbrance upon the lot. Any interest in the ■same premises, afterward obtained, must be held and deferred as posterior to it.

The deed under which complainant asks to be quieted in his title took effect, as a conveyance, on the 1st of June, 1838, more than seven months after the registry of the defendant’s mortgage. This is the date of its acknowledgment. Whether it had, before that time, been signed and attested by witnesses; does not appear. The •complainant insists that the sale to him of the premises was complete, and the deed made out and signed on the 26th of May, 1837, by means of which he gained an equitable estate, and that the acknowledgment made and attached to the same deed, more than a year afterward, secured in him the legal title, which is now paramount, and should be preferred to that of the defendant. If the -evidence which has been introduced sustained this assumption, an important stop would be thereby gained by the complainant in his •effort to obtain relief. But we are not able to. give to it that effect. Wo can find no passage, in any deposition submitted to rs, which tends, with any certainty, to show that the deed was even written before the date of the certificate of acknowledgment. It is true Bissell says that “ in his record the lot is set down as convoyed May 26*1837.” When the memorandum in the record was made, or by whom it was written, or whether it be, according to *the [592 belief of the witness, true, he does not make known. But, in reply to an interrogatory propounded to him by defendant, he states that he is “ governed in his recollection as to the time of the signing and acknowledgment by the deed itself, without a distinct, recollection of the precise time of either.”

This testimony, in our opinion, fails to establish the complainant’s claim that the deed passed to him as a valid contract of purchase, in 'May, 1837. It impresses upon the mind but slight, if indeed any conviction, that such was the case. The recollection of the witness does not convince his own mind, very satisfactorily, that the claim is true. But if the writing and signing of the instrument be proved to have taken place when the date purports, as we think they clearly are not by the evidence, there is no attempt to prove its delivery to complainant. It is not shown to have been offered to or held by him at any time before June, 1838. No proof whatever shows it in his possession before then, and as it could take effect Only upon delivery, the omission of that necessary act defeats wholly the character claimed for it by the complainant.

We are still further impressed with the correctness of our'conclusion in this particular by the fact that it is the only one which can, consistently with the interest 'of the grantor, be maintained. If, as it is now contended was the case, Bissell, on the 26th of May, 1837, sold for a proper consideration the premises to complainant,, and conveyed, as he supposed, the title to him, it was a fraud on defendant to induce him to accept, one month from that time, as. security for a just debt, a mortgage upon the same property. An intentional act of that kind, as this must have been if it was perpetrated, would require more ingenious powers of apology than we possess to render it any other than grossly iniquitous. There is no 593] pretense that the lot *was included in the mortgage by mistake. No explanation is offered, nor is any reason given why the complainant’s deed was not acknowledged at its date. Was its omission accidental? Then why not relieve the case by some proof on the subject? Bissell could state, without doubt, whether he forgot, or neglected, or declined, in May, 1837, to acknowledge the deed, and what circumstances led to his failure to do so. Tet he preserves total silence relative to the affair. We feel inclined, therefore, as a duty,- to adopt the most favorable view of the c'ase which is warranted by the facts before us.

The deed to complainant was executed, acknowledged, and delivered, on the 1st of June, 1838. The date, stated in the body of it, was either inserted there by mistake, or it may be that Bissell had caused the deed to be written at the date mentioned, and had beld it as a blank to be used whenever he and complainant should fully concur in their views about it. To us, this most reasonable view of the case tends to relieve Bissell from the imputation of ■dishonesty respecting it, and renders the transaction at least plausible. It was consistent with fairness, and sustained by correct daily practice to convey the fee of the lot after the mortgage and ■subject to it, but not to execute a mortgage upon it after the mortgagor had parted with his fee, and held no interest or right of redemption in it.

If we are correct in our conclusions on this branch of the case,' it seems to follow, as inevitable, that the complainant has failed to show any ground for relief. But granting that the deed was written, signed, and delivered to complainant on the 26th of May, 1837, but not acknowledged till June, 1838, does he stand in any better condition ? As between him and Bissell, he could enforce a specific performance of the contract and a conveyance of the lot. Here, however, is a third party, having, as he insists, *no knowledge [594 of complainant’s equity — no intimation that he holds an imperfectly executed deed for the lot — who, in good faith, receives from Bissell a mortgage lien upon the property which he relies upon as valid, and does not learn that anything is urged by 'any one to the contrary until after his debt secured by it, has matured, and he lias foreclosed the equity of redemption. It is admitted that he had no actual notice of the existence of such equitable title in the estate conveyed to him, but it is claimed that the complainant, when “ obtaining the unacknowledged deed from Bissell, was immediately let into the open, exclusive, and notorious possession of the property, .and that he was in such possession at the time of the execution and recording of defendant’s mortgage, and that such possession is good ■constructive notice to the defendant, and to all the world, of all his rights.”

Wo recognize the doctrine as true, that if the complainant, at the date of the mortgage to defendant, had been in the actual, exclusive, and notorious possession of the property, that the defendant would have been bound, by such possession, to take notice of any and all rights of the complainant in the premises. Before we can determine against him, however, on that point, we must be assured that such constructive notice did, in fact, exist; if it did, he is chargeable with it, but not without.

The complainant owned the hotel, which occupied the front of two lots. Lot No. 311 adjoined them. It was vacant, and hadr during the construction of the hotel, become a sort of lumberyard, on which building and other materials had accumulated. In the spring of 1837, the complainant buys the lot in order to en-f hance the comfort and convenience of his hotel. He removes some of the lumber and rubbish therefrom, but does nothing more. 595] He docs not build upon it; he does not fence it; but his *tenant of the other lots and hotel, hangs out clothes there to dry after being washed. This is the extent of the possession held and exercised by the complainant during the season of 1837. No lease was made to Segur, the tenant of the hotel, for it, no rent paid for it, no acts of ownership by him exercised over it. Complainant was-seen once, as witness thinks, removing some of the materials from it. Should such acts of possession and control be held to give notice to purchasers, of equities and equitable titles not otherwise communicated or made known to them ?

We think the rule has never been, and should never be carried so far. There must be something in the acts which accompany possession of property, in order to give constructive notice, which can be seen and. understood — something that'will induce inquiry — that will naturally raise the question as to who may have rights there. Living on the premises, raising crops on them, the employment of' persons there in the making of improvements, accompanied by frequent acts and expressions of ownership, Would produce such notoriety, undoubtedly, as should put purchasers upon their guard, and induce investigation to acquire knowledge sufficient to enable-them to deal safely. This may not be the only means of conveying notice to strangers, and without intending to define exactly what, in all cases, will constitute constructive notice, we feel no hesitation in saying that the stretching of a clothes-line over a vacant adjoining town-lot, by the tenant of other premises, on which to hang clothes to dry,'or a casual act of removing stone, brick, or lumber therefrom, belonging to an owner who had placed them there while constructing a house on the next lot, would not charge-a bona fide purchaser or mortgagee with notice of equities in the-landlord of such tenant, or the owner who removed such materials. Something more is required. In our opinion, the evidence given 596] *in this case is inadequate to create constructive notice,, and the defendant is not divested of his priority of lien by anything which can be construed into constructive notice to him of an equity to the premises in the complainant.

There is still another objection to granting the prayer of the bill. When the defendant deposited his mortgage for record, the complainant had no pretense of claim to any more than three-fourths of the lot. The other one-fourth part of it belonged to Stickney, and was not transferred to complainant till 1839. Stickney was a tenant in common of an undivided one-fourth part of it, and might, lawfully, by himself, his tenant, or his servants, occupy and improve it. Of this title there existed actual notice on record, and-the defendant was chargeable with it. The use of the lot, or of some part of it, as a clothes-yard, by the occupants of an adjoining lot, was perfectly consistent with the interest which the defSndant was about to acquire. It was notice of the occupation of the tenant in common, and would not legally disclose or lead to any other presumption. Even if complainant did, in person, assist in clearing away the rubbish from it, or if the lot had been plowed, or fenced, during the summer of 1837, such acts were authorized by the title of Stickney, and might well be done by him. The defendant, in such case, was not bound to look beyond the authority of Stickney over the-lot. Any possession, occupancy, or use of it, which is shown to have occurred, might be 2>roporly traced to his right, as tenant in common under a valid legal title, to possess, occupy, or use it, and the defendant was excused from making further examination or inquiry into the title which ap2>eared to be in no otherwise affected.

We express no oj)inion whether the possession of the lot by the tenant was notice of anything more than the title *of the [597 tenant himself. Counsel have, in their briefs, invited our attention to the point, but the other grounds are so clearly decisive of the case, that we deem it unnecessary to pass U2>on it.

The equity of the case as' to one undivided fourth of the lot is with the complainant, and as to the other undivided three-fourths, the equity is with defendant. The case is remanded to the district court to settle any lien which defendant may have for taxes paid on the complainant’s portion of the lot, and for final decree between the parties, upon the principles here stated.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.


author: J. R. Swan, J.

text:
    Peter Brunaugh v. James Worley.
    The amount claimed in the petition determines the jurisdiction of the court of common pleas.
    Whatever may be the amount of the verdict, the plaintiff is entitled to judgment; but as to costs, if the recovery be less than one hundred dollars, judgment for the plaintiff’s costs can not be rendered, unless the jury have found the amount of the plaintiff’s claim to be more than one hundred dollars, and have reduced the same by the allowance of a counter-claim or set-off to less than one hundred dollars.
    On error. . Reserved in the district court of Clermont county.
    On the 19th day of December, 1854, Worley filed his petition against Brunaugh in the court of common pleas of Clermont county, claiming one hundred and fifty-two dollars and fourteen cents, with interest, and asking judgment therefor.
    Brunaugh answered, controverting Worley’s right to recover, and 598] sotting up a counter-claim and asking judgment ^against Worley. Worley replied, and the issues thus presented were tried to a jury and resulted in a verdict in the following form: “ W e, the jurors, do find for the plaintiff in the sum of seven dollars and thirty cents.”
    Judgment was entered against Brunaugh for the amount of the verdict and also for costs, as well for Worley’s as his own.
    To reverse this judgment, Brunaugh filed his petition in error in the district court of said county, assigning for error:
    1. That the court of common pleas had no jurisdiction of the case, and could not, therefore, pronounce judgment.
    2. That the court erred in rendering judgment against the defendant below for all the costs.
    The questions thus presented were reserved in the district court for decision in this court.

      Lewis & Griffiths, for the plaintiff in error.
    Penn, Johnston & Penn, for the defendant in error.
   J. R. Swan, J.

The jurisdiction of the court of common pleas depends upon the amount claimed in the petition. If that be less than one hundred dollars, the court has no jurisdiction. ’ But if the plaintiff claims in his petition more than one hundred dollars, the jurisdiction is not ousted, although the recovery may be less than one hundred dollars. If, however, the plaintiff recovers less than one hundred dollars, although entitled to judgment therefor, he is not, in general, entitled to costs.

The code, section 552, forbids the recovery of costs in such a ease. It provides : “ That if it shall appear that a justice of the peace has jurisdiction of an action, and the same has been brought in any other court, the plaintiff shall not recover costs.” It is true, that at the time* the *code took effect, the court of common pleas [599 and justices of the peace had concurrent jurisdiction when the amount in controversy did not exceed one hundred dollars. Now by statute justices of the peace have exclusive jurisdiction of any sum not exceeding one hundred dollars. We are of opinion that this change of jurisdiction did not abrogate the section of the code above referred to, in relation to the recovery of costs by the plaintiff in cases in which it appears from the verdict that the amount in controversy did not exceed one hundred dollars. But there is this exception to the above rule: Where the plaintiff claims by his petition more than one hundred dollars, and the jup-y find his claim to exceed that sum, but it is, by counter-claim or set-off allowed by the jury, reduced to an amount less than one hundred dollars, the plaintiff is entitled to his costs. This exception was recognized under the old law, and the same reason exists for its recognition under section 552 of the code. When the claim and, verdict exceeds one hundred dollars, and does not exceed three hundred, costs follow the judgment, as in other cases under the general provisions of the seventeenth title of the code.

The court below erred in rendering a judgment for the plaintiffs ’ costs, and the judgment therefore must be reversed in respect to costs.

Bartley, C. J., and Brinkerhoee, Bowen, and Scott, J J., concurred.


text:
    William Huddleson v. James L. Ruffin.
    Under the general law relating to weights and measures, and the city charter-of March 1, 1834, the city council of Cincinnati had the power to. appoint an inspector or sealer of weights and measures, and to enforce by fine, the use of weights and measures sealed by such inspector.
    A fine assessed by the mayor for the violation of an ordinance may be collected, either by commitment of the person upon whom the fine is imposed, or by fieri facias.
    This is a petition in error to a judgment of the district court of' Hamilton county, and is predicated upon the following state of facts •as disclosed by the record: '
    On the 19th of May, 1851, the plaintiff in error,William *Hud- • dloson, who was also plaintiff below, was convicted before the mayor of the city of Cincinnati, of selling honey in Lower Market, in said city, by weights not having been sealed by the city inspector of weights and measures, and was thereupon sentenced to pay a fine of nine dollars, and the costs of prosecution.
    On the 29th of May, 1851, the mayor issued to the defendant, as marshal of said city, an ordinary fieri facias, commanding him .of the goods and chattels of said plaintiff to make said fine and costs; and in the execution of this writ, the defendant took and ¡sold a horse, the property of the plaintiff, and applied the money to the satisfaction of the judgment.
    The plaintiff brought trover, for the property thus seized, before a magistrate, who gave judgment therefor, from which judgment •the defendant appealed to the court of common pleas, where, to .an ordinary declaration in trover by the plaintiff, the defendant plead specially the facts above recited. To this plea the plaintiff • demurred, and on the hearing, the court overruled the demurrer, .and rendered final judgment 'for the defendant.
    This judgment was affirmed by the district court on error, and the plaintiff now seeks, by the present petition in error, to reverse the judgment of the district court and the common pleas, claiming :
    1. That the mayor had no lawful cognizance or jurisdiction of the subject-matter, and his proceedings are, therefore, coram non judice, and void.
    2. That the execution issued by the mayor, and under color of which the defendant acted, was null and void, for want of juris- • diction in the mayor to issue such process in any case, and that it therefore constitutes no justification to the defendant for the trespass committed under color thereof.

      *Lavid P. Lowe and Warner M. Bateman, for the plaintiff in error.

      E. A. Ferguson, for the defendant in error.
   J. R. Swan, J.

1. The general law relating to weights and measures (Swan’s Rev. Stat. 1021), requires the state sealer to furnish the town sealer of each incorporated town and city with •copies of the original state standard of weights and measures, and with spch devices as the proper authorities of such town or city may direct. The statute further requires town sealers to compare the copies in their possession With those in the office of the county .sealer, once in three years, and authorizes town sealers to mark and seal weights and measures, and fixes their fees for so doing.

We are of the opinion that this general law authorizes the proper authorities of incorporated cities and towns to appoint town sealers or inspectors of weig'hts and measures. As incident and necessary to such appointment, and to carry out the manifest objcot of the law in authorizing the creation of such municipal officer, the town •council may prescribe his duties, under the general authority given by the charter. 82 L. L. 247, sec. 6.

The general law relating to weights and measures does not forbid the use of such as are not sealed.' The city council, however, have •deemed it necessary for the safety of trade, and to prevent impositions, that all weights and measures used in the city should be compared with the state standard, and be marked and sealed by the town sealer. Such an ordinance is, though of little or no importance in a small town, manifestly proper to protect a large mass of dealers in such a city, who are necessarily ignorant of the character of each other. A long-continued course of fraudulent practices of this kind may be pursued in a populous city, without being exposed by the transient *and other persons who are cheated. We [607 are of the opinion that the ordinance comes within the scope and object of city legislation, as given by section 8 of the charter (32 L. L. 247, 248), and is not in conflict with any general law.

2. It is said that the mayor must commit a person upon whom a fine is imposed, to the jail of the county, and can not issue a fieri facias. An ordinance, passed March 22,1843, authorizes the mayor to enforce the payment of a fine by commitment. The charter of the city (32 L. L. 245, see. 4) also authorizes him to award all such process and issue all such writs for the violation of ordinances, etc., as may be necessary to enforce the due administration of right and justice throughout the city, and for the lawful exercise of his jurisdiction, agreeably to the usages and principles of law. Under the ordinance of March 22, 1843, and these provisions of the charter, the mayor may pursue the rigorous remedy of commitment for the collection of a fine, or issue the ordinary process indicated by the charter.

The judgment of the district court is affirmed.

Bartley, O. J., and Brinkerhoee, Bowen, and Scott, JJ., concurred.


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    The State of Ohio, for the use of Wyandot County, v. George Harder and others.
    'The felonious taking and carrying away the public moneys in the custody of a county treasurer, without any fault or negligence on his part, does not discharge him and his sureties, and can not be set up as a defense to an action on his official bond. The responsibility of the treasurer in such ease depends on his contract, and not on the law of bailment.

    608] “Before the act of February 20, 1856, “to amend the act entitled an act to establish a code of civil procedure, passed March 11,1853,” a motion to strike an answer from the files for insufficiency and irrelevancy was. proper practice.
    Beserved in the district court of Crawford county.
    This is an action under the code, brought upon the official bond of Harper, as treasurer of Wyandot county. His term of office commenced on the first Monday of June, 1852, and expired on the first Monday of June, 1854. At his settlement with the county commissioners, before going out of office, there was found a balance due from him of over two thousand dollars, which he refused to-pay to his successor.
    The bond is for thirty thousand dollars, and contains a condition that “Harper shall honestly and faithfully pay over, during his continuance in office, all moneys that shall come into his hands for state, county, and township, or for other purposes, according to law.”
    Harper filed an answer, alleging that on the 19th of February, 1855, his residence was forcibly .broken ojien, by some person or persons to him unknown, and the sum of two thousand and ten dollars stolen therefrom; that the money so taken was the money of said county, which he had collected and then held in his official capacity as treasurer, as aforesaid; and that said money was taken from him without any fault or want of care on his part, and is the same money which is sought to be recovered in this action.
    The plaintiff’s counsel moved to strike this answer from the files, because it contains no valid ground of defense.

      J. P. Sears, for plaintiff:
    A larceny of the public funds in the hands of a county treasurer *does not discharge him, pro tanto, from his obligations to [609 account for and pay over the money. Swan’s Rev. Stat. 1008, sec. 2; Ib. 1011, sec. 24; Ib. 1012, sec. 31; State v. Alden’s Sureties, 12 Ohio, 59; Muzzy, Supervisor, v. Shattuck et al., 1 Denio, 233; The United States v. Prescott et al., 3 Howard, 578; Commonwealth v Comley, 3 Barr, 372.

      G. K. Watson, M. McKelly, and J. S. Plants, for the defendants :
    Story on Bailments, 300, 390; Supervisors of Albany v. Dorr et al., 440; Buck v. Trevitt, 1 Mason, 96, 98, 100, 101.
   Bowen, J.

The act prescribing the duties of county treasurers (Stat. 1008), provides for their election, term of office, oath, and bond. It makes them public officers, and requires of them the perform - anee of responsible duties. One who is elected to, and enters upon the duties of the office, must give bond with four or more freehold sureties, conditioned for the paying over of .all moneys which shall come into his hands for state, county, township, or other purposes. He shall, on the first Monday of Juno, annually, make a full settlement of his accounts with the commissioners of the county, and on going out of office, it is his duty to deliver to his successor all public money in his possession belonging to the office.

By section 24 of the act, if any county treasurer shall “ fail to pay over all money with which he shall stand charged, at the time and in the manner prescribed by law, suit may be instituted against him and his sureties in the court of common pleas, of his county; and it is made lawful for the court, at the first term thereafter, to render judgment against them for the amount due from such treasurer, with legal interest, and a penalty of ten per centum thereon; from which judgment there shall be no appeal, *or stay of [619 execution, and the property of such delinquent treasurer, and his sureties, may be sold, without appraisement, to satisfy such judgment.”

By accepting the office, the treasurer assumes upon himself the ■duty of receiving and safely keeping the public money, and of paying it out according to law. His bond is a contract that he will not not fail, upon any account, to do those acts. It is, in effect, an insurance against the delinquencies of himself, and against the faults :and wrongs of others in regard to the trust placed in his hands. He voluntarily takes upon himself the risks incident to the office, and io the custody and disbursement of th,e money. Hence it is not a •sufficient answer when sued for a balance found to have passed into •his hands, to say that it was stolen from him; for even if the larceny of the money be shown to be without his fault, still, by the terms ' of the law, and of his contract, he is bound to make good any deficiency which may occur in the funds which come under his charge. Muzzy v. Shattuck et al., 1 Denio, 233; United States v. Prescott et al., 3 How. 578; Commonwealth v. Comly, 3 Penn. St. 372. The distinction .between this and a common case of bailment, is that the law of the latter is generally founded upon the absence of any positive engagements between the parties to the hiring, or as it is called, the locatio-conductio, and therefore the question arises, what obligations may, with reference to public policy and general convenience, be implied by law in the absence of such positive engagements. 'The express contract of the parties may, as in the case now under ■consideration it has done, vary or supersede those derived from the law of bailments. Story on Bail. 7.

The 118th section of the code authorizes irrelevant matter, in-■serted in any pleading, to be stricken out on motion of the party -'611] prejudiced thereby. This made it ^competent for the plaintiff to .move the court to strike out the defendant’s answer, if the matters which it contained were irrelevant, and formed no ground of ■defense to the action. The motion, in such case, took the place, .and served the office of a demurrer. By the act of February 20, 1856, amendatory of the 101st section of the code, the plaintiff may -demur to the answer for insufficiency, and this law necessarily •supersedes the practice of moving to strike the answer from the files. The answer and motion in this case were filed before the .adoption of the last-named act, and are, therefore, not affected by it.

The defendant’s answer is set aside for insufficiency, and the ■cause remanded for further proceedings.

Bartley, C.. J., and Swan and Brinkerhoee, JJ., concurred.

Scott, J., having formerly been of counsel in this case, did not ■participate in'its decision.


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    Conkling & Shepherd v. Uriah P. Coonrod and Robert Crum.
    An assignment was made by an insolvent debtor, of his property, for the "benefit of all his creditors, containing a provision, “that the trustee shall sell and dispose of the property with convenient diligence, either at public or private sale, and for the best prices he can obtain therefor, for cash, or upon such terms of credit as he may deem advisable to convert the same into money to advantage for those interested in the premises, and to barter and exchange the same or any part thereof as he may deem proper for the benefit of the creditors of the assignor, and to dispose of the same in any manner whatsoever, as freely and lawfully as the assignor could do himself, which the trustee may deem advisable to do, tending in his opinion to convert the same into money directly of indirectly for the benefit of all ®inter- [612 ested under this assignment, and to collect all such debts and demands as may be collectible, and to settle, compound, and adjust, and to discharge the same for payment in cash or in property, or for part payment, only as aforesaid, any as well as all the claims and demands due, owing, or accruing due to said assignor, as well as the claims in which the said assignor has any interest whatever, and finally to make at his discretion any such disposition of the property hereby assigned and transferred, or any part thereof, as the said assignor could do himself before the execution of these presents.” Held:

    That the assignment is not, per se, fraudulent and void.
    That a sale of goods by the trustee on a credit of one, two, and three years is an abuse of discretion, and creditors can interpose and require a sale of the notes taken on such credit.
    It seems when a trustee is authorized to sell on credit, that a sale of real or personal property by the trustee, upon such credit as is authorized by law in the settlement of the estates of deceased persons, is not, in general, an ' abuse of discretion.
    Civil action. Reserved in the district court of Seneca county.
    The facts in this case, so far as it is necessary to state them, are as follows;
    On the 11th day of November, 1854, the defendant Coonrod, a dry-goods merchant of Tiffin, Ohio, claiming to be indebted to many persons in large sums of money, which he was unable to pay, made an assignment of all his property, consisting of a stock of goods and book accounts, to defendant Crum, in trust, for the benefit of his (Coonrod’s) creditors.
    The instrument of assignment authorizes the trustee “ to take immediate possession of the property hereby assigned, and sell, amd dispose of the same with convenient diligence, either, at public or private sale, and for the best prices he can obtain therefor for cash or upon such terms of credit as he may deem advisable to convert the same into money to advantage for those interested in the 613] premises, and to ^barter and exchange the same or any part thereof as he may deem proper for the benefit of the creditors of the said Coonrod, and to dispose of the same in any manner whatsoever as freely and lawfully as the said Coonrod could do himself, which the said Crum may deem advisable to do, tending in his opinion to convert the same into money, directly or indirectly, for the benefit of all interested under this assignment, and to collect all such debts and demands as may be collectible, and to settle, compound, and adjust, and to discharge-the same for payment in cash or in property, or for part payment only, as aforesaid, any as well as all the claims and demands due, owing, or accruing due to said Coonrod, as well as the claims in which the said Coonrod has any interest whatever, and finally to make at his discretion any such disposition of the property hereby assigned and transferred, or any part thereof, as the said Coonrod could .do himself before the execution of these presents.”
    The trustee is directed to pay out of the proceeds of the property “ all just and reasonable expenses, services, costs, and charges of executing this ■ assignment and of carrying into effect the trust hereby created, together with a reasonable commission or compensation to the said Crum for his own services in executing said trust.”
    With the residue, the trustee is directed to pay all the debts and liabilities of Coonrod, in full, if sufficient for that purpose; if not, then to pay the same pro rata. After payment in full, the balance to be returned to Coonrod.
    Crum accepted this trust, and it appears from his answer and deposition, that he took immediate possession of the property, and proceeded to collect the accounts, and while so doing, and while 'seeking an opportunity to sell the entire stock of goods, ho retailed, up to the 3d of March, 1855, about fifteen hundred; dollars’ worth to different persons, some for cash and some on credit, to be paid when called for.
    *The greater portion of the goods thus sold on credit was to the creditors of Coonrod, and to each an amount not to exceed their probable dividend under the assignment, and the remainder so sold was to responsible persons.,
    On or about the 3d day of March, 1855, the trustee sold all the remainder of said goods, amounting to about sixty-five hundred dollars, at the original New York cost, to Warren P. Noble, at forty-five cents on the dollar of the appraisement, taking his notes therefor at one, two, and three years, with interest after the first year, and without security.
    The trustee, in his deposition, states that Noble is abundantly, good and responsible for the amount of his purchase, and that the ■sale of the goods to him was the best that could be made or obtained for them in the condition they were in.
    After this sale, on the 5th day of March, 1855, Coonrod, by another instrument of writing of that date, referring to the assignment in trust above-mentioned, and expressing his fears that a perfect title to the property and effects attempted thereby to bo assigned might not have passed to the trustee, assigned and transferred all his property and effects to said Crum in trust for his (Ooonrod’s) creditors.
    This last agreement directs the trustee to take immediate possession of the property assigned, and with convenient diligence •convert the same, into money, either at public or private sale, collect the debts, and pay out the proceeds of the property in the same manner as provided in the first agreement.
    Crum accepted this trust and took and retained possession of the property under it.
    It appears 11 that the first assignment was satisfactory to one or more of the creditors of Coonrod, or that they simply made no objection to it; and the trustee, Crum, was notified *by plaint- [615 iffs that the first assignment was a fraudulent one, and that plaintiffs would not be concluded by its provisions, but would institute proceedings to have it set aside. This notice was given about two months before the execution of the second assignment.”
    The petition avers that the plaintiffs are judgment creditors of ■Coonrod; that the assignment was made with intent to hinder, de-, lay, and defraud the plaintiffs in the collection of their debt; and that its operation has that effect.
    Plaintiffs ask that the assignment be held as fraudulent and void; that the trustee be ordered to pay the amount due upon their judgment out of the assets in his hands; and for other relief.

      George E. Seney, for plaintiffs,
    made the following points:
    1. The assignment in this case is not within the statute of 1853r because it shows no design to prefer one creditor and exclude another; but, on the contrary, it expressly appears it was for no such, purpose. See Hull v. Jeffrey, 8 Ohio, 390. This assignment must ’ therefore stand or fall upon the common law, subject to impeachment upon the ground of fraud.
    The plaintiffs are entitled to all the advantage due to their vigilance. Doremus v. O’Harra, 1 Ohio St. 45; Atkinson v. Tomlinson, Ib. 237.
    The court has no power to control this assignment by taking from it any of its illegal or fraudulent provisions, to the end that the trust itself, divested of all such features, may stand.
    An assignment void in part is void in toto. 2 Kent, 536; 6 Hill, 438; 2 Comst. 371; 11 Wend. 187; 9 Barb. 255; Swan’s Rev. Stat. 435.
    *2. The assignment of November 4th is fraudulent because:
    1. It gives the trustees power to sell upon credit. Swan’s Rev. Stat. 435; Vannest v. Yoe, Sandf. Ch. 4; Burdick v. Post, 12 Barb. 168; Barney v. Griffin, 2 Comst. 465; Nicholson v. Leavitt, 2 Seld. 510; Neally v. Ambrose, 21 Pick. 185; Hopkins v. Ray, 1 Met. 79; Woodburn v. Mosher, 9 Barb. 255.
    2. It gives the trustee power to sell at private sale. We think the-trust must fall for this reason, and refer the court to the case of Meacham v. Sternes, 9 Paige Ch. 390.
    3. It gives the trustee the power of barter and exchange. Plack v. Schemerhorn, 3 Bar. 646; Burrill on Assignments, 209, 210.
    4. It gives the trustee power to compromise debts. Murphy v. Bell, 8 How. Prac. 468; Woodburn v. Mosher, 9 Barb. 255; Hudson v. Bell, 3 Scam. 578; Grover v. Wakeman, 11 Wend. 187.
    5. It gives the trustee full discretionary power in aid of the specific-powers mentioned.
    The question to be considered is not whether fraud may be committed by the trustee, but whether the provisions of the instrument are such that, when carried out according to their reasonable and apparent intent, they will be fraudulent in their operation. Ward v. Tingley, 4 Sandf. 476. If an assignment is so drawn.that it must in its execution tend to hinder, delay, and defraud creditors, the legal presumption is that it was framed with that intent. The law presumes every man to intend the legal consequences which must naturally flow from his own voluntary act. When the legal effect of a conveyance is to hinder, delay, and defraud creditors, no matter what the actual intention may have been, it isa fraud in law, and the courts are so bound to declare it. Gibson v. Love, 4 Fla. 217. It is sufficient, *if the effect of the conveyance is to hinder [617 or delay creditors in the collection of their debts. Buck v. Sherman, 2 Doug. 176. An assignment to be valid, must be free from all provisions tending to hinder, delay, or defraud creditors. Burrill on Assignments, 236.
    It has been determined by high authority, that an assignment to a brother, who was irresponsible, was a fraud, in law, as to creditors —the selection of an insolvent person as trustee, is a fraud. Cormah v. Sedgewick, 1 Bar. Ch. 210. The assignor remaining in possession, has been determined to be a fraud. So the selection of an incompetent person. An assignment to a clerk, the debtor exercising authority, has been held a fraud. An assignment which directed the assignee to delay the sale of the property for the purpose of obtaining higher prices, has been decided fraudulent and void. Hart v. Crane, 7 Paige Ch. 37.
    The assignment is void by the statute of frauds, as to the creditors of the party making such conveyance. Brown v. Webb, 20 Ohio, 389; Peck v. Land, 2 Kelley, 1; Trotter v. Watson, 6 Humph. 509.
    When the object and intent of a deed is to hinder and delay creditors, and both.the grantor and grantee participate in it, the deed is void, as between a creditor and fraudulent grantee. Tatum v. Hunter, 14 Ala. 557; Johnson v. Brandis, 1 Smith, 263.
    The assignment of March 5, 1855, can not affect the rights of the plaintiffs to have the first set aside.
    After any of the trusts have been actually executed, it is too late to revoke an assignment. Burrill on Assignments, 419; Petrikin v. Davis, 1 Morris, 296. When an assignee accepts the assignment it operates as a conveyance. Hall v. Denison, 17 Vt. 310; Ingraham v. Kirkpatrick, 6 Ired. Eq. 462.
    This last assignment will not operate to defeat our right *to set [618 aside the first assignment, it being fraudulent. Brownell v. Curtis, 10 Paige, 210; Leach v. Kelsey, 7 Barb. 466; Browning v. Hart, 6 Ib. 91.
    In the Ohio statute of frauds and perjuries, the words hinder and delay, are omitted; this omission is not material. Any conveyance which materially hinders and delays creditors is fraudulent and void. Nicholson v. Leavitt, 2 Selden, 517; Burdick v. Post, 12 Barb. 168; Arthur v. Com. and Railroad Bank, 9 S. & M. 394; Burrill on Assignments, 386.
    In Wallack’s notes to American Leading Cases, Sheldon v. Lodge, 4 Denio, 217; Bodley v. Goodrich, 7 How. 277, the doctrine is declared to be, that an assignment that “ tends ” to hinder and delay, by its provisions, is not only'void, butfraudulent. See also Vernon v. Morton, 8 Dana, 247, 263; Cadogus v. Bennett, Cow. 434; Atkinson v. Tomlinson, 1 Ohio St. 237.

      Luther A. Hall and James Pillars, for the defendants :
    Where a debtor in contemplation of insolvency, and not of fraud, assigns his property to á trustee for the express benefit of all his creditors, our statute “ declaring the effect of assignments to trustees in contemplation of insolvency,” by its spirit and policy, lays its hand upon such an assignment, takes it aside from the operation of the principles of the act for the. prevention of frauds and perjuries, and controls it, even if the instrument of assignment contains provisions, or directions to the trustee, contrary to the policy of the law, or the 1‘ights of creditors, which he may follow, in the mere execution or carrying out of the trust. Swift v. Holdridge, 10 Ohio, 230.
    This assignment in trust, claimed only to be fraudulent (and that 619] simply in some of its incidents), must stand *and be executed. Harshman v. Lowe, 9 Ohio, 92; Hull v. Jeffrey, 8 Ohio, 390; Mitchell v. Gazzam, 12 Ohio, 315; Bancroft v. Blizzard, 13 Ohio. 30.
    To avoid a conveyance made to defraud creditors, both the grantor and grantee must be partakers of the fraud, or tainted with the fraudulent intent. But in this case, the cestuis que trust are not parties to the assignment. It is made only for their benefit. Their assent even is not essential to its validity. Neither is the trustee a party to it, in the strict sense of the word. He signed and sealed the instrument of assignment, but that was mere form. He has but a naked legal interest in the trust property, with no substantial advantage to himself from the execution of the trust.
    The law, therefore, can not consider him as participating in any fraud or fraudulent intent, so as to avoid the assignment. Vide 9 Ohio, 93.
    If an assignment of his property by an insolvent debtor to a trustee, in trust for creditors, contains any provisions or directions to the trustee, contrary to law or the rights of the creditors, in a proper action for that purpose, the court can control and modify the trust or the action of the trustee, purge the assignment of any objectionable feature, and leave the body of the trust to stand, and order the same, thus vastated, to be executed.
    It is only when the illegal provisions in a trust are indivisible from, and constitute the main object or body of the trust, that the whole will be .declared void. Tritt v. Crotzer, 13 Penn. St. 451; Greenfield’s Estate, 14 Penn. St. 480; Dupre v. Thompson, 4 Barb. S. C. 279; Humberston v. Humberston, 2 Vern. 737; 1 P. Wms. 332; Prec. Ch. 455; Hill on Trustees, 333, 334; Sheppard’s Touchstone, 87, rule 5; Darling v. Rogers, 22 Wend. 486.
    *This question, raised by the counsel for the plaintiffs, of [620 the power to sell upon credit, under assignments for the benefit of creditors, has been much discussed in New York; but in that state they have no such statute as our “act declaring the effect of assignments to trustees in contemplation of insolvency.” It will-be seen, on examination, that the decisions referred to, maintaining that such a power given to the trustee vitiates and avoids the whole transaction, were made expressly under the statute of frauds,'which is a transcript of the 13 Eliz. C. 5, and in which the words with intent to hinder or delay creditors, are its emphatic words.
    But there is still á conflict of opinion on this question in the courts of that state. Vide, 2 Comst. 365; 4 Sandf. 252; 11 Barb. 138; 22 Wend. 486; 2 Sold. 510; 1 Sandf. Ch. 4; 7 Paige, 272.
    The fact that the assignment gives to the trustee power to sell on credit, does not of itself indicate fraud. O’Connell v. Cruise, 1 Sup. Ct. Rep. (Cincinnati), 163, 167, 168.
    It is now too.late to raise this question; the sale had been made before this action was brought, and the purchaser is not a party to this action.
    The second assignment is not void, but operative as to its subject-matter — the notes and accounts. Burrill on Assignments, 277, 278, 292, 419, 420; Conkling v. Carson, 11 Ill. 503; 20 Conn. 98, 102; Small v. Sproat, 3 Met. 303; Hone v. Woolsey, 2 Edw. Ch. 289.
   J. R. Swan, J.

A sale by a trustee, upon reasonable time of credit, taking the usual security, is an act of good faith, and is recognized by our laws relating to the settlement of the estates of deceased persons, and is frequently directed by the court. An absolute and inflexible rule, that a trustee for the payment of debts, 621] must at all times, and under all *circumstances, sell for cash, would not be for the interest of creditors. And if this be so, a provision in the trust deed in regard to credit, not specifically requiring a credit beyond what a court would sanction in the absence of such provision, can not, in our opinion, be deemed per se fraudulent. The courts of New York, however, hold that an assignment by an insolvent debtor, authorizing the trustee to sell “for cash, or upon credit, or partly for cash and partly for credit, as the trustee shall think reasonable and proper,” is fraudulent and void. Nicholson et al. v. Leavitt et al., 2 Seld. 510; Burdick v. Post et al., 12 Barb. 168. But this seems to be law peculiar to Now York; and the dissenting opinion of Brown, J., in the case of Burdick v. Post et al., above referred to, shows very conclusively to our minds that the decision of the majority can not bo sustained upon principle or authority, and we must refer to that dissenting opinion for the reasons upon which our own opinion is based.

An assignment requiring a credit to be given beyond that authorized by law on sales by executors and administrators would, in general, bo deemed conclusive evidence of an intent to hinder and delay creditors, and therefore void. And when the assignment, as in the case before us, gives the assignee a discretion as to credit, we arc of the opinion that a sale giving a credit beyond that authorized by law on sales by executors and administrators, would be an abuse of discretion; and in many cases the nature of the property and the state of the market, and other circumstances, would require the trustees to sell for cash, or on a shorter credit than executors or administrators are permitted to do.

Where, as in this case, the trustee has abused the discretion given 622] him., the creditors may require the notes taken *for the property to be sold, and may have such remedy against the trustee as the circumstances may require.

The other provisions of the assignment we do not think, per se, fraudulent.

Bartley, C. J., and Brinkerhoee, Bowen, and Scott, JJ., concurred.