text:
    Daniel Lake v. Samuel Doud, V. E. Remmington, and David Todd.
    A mortgage defectively executed may he enforced in equity.
    Such mortgage has a priority of lien over a later judgment.
   Hitchcock, J.

This is a bill in chancery from the county of Trumbull,

It is submitted to the court upon bill, answers, exhibits, and testimony, and presents merely questions of fact. '

The caso was fully argued by Newton, Birchard, Tod and Hoffman, for the complainant, and by Webb and Crowle, for the defendants.

On the part of the defendants several points of law were raised, but as in the view taken by the court of the case these points were not necessarily involved, they are not here stated.

It is stated in the bill in this case that on May 15, 1835, the defendant Remmington executed to the complainant a mortgage deed of sixty-five and one-half acres of land in the township of Bazetta, in the county of Trumbull, and also of one-half acre of land in the township of Mecca in the same county, to secure the payment of $756, in one year after the date of said deed. The land is specifically described. This deed was left for record on the 27th of May, and recorded on June 15, 1835. That through carelessness or design the deed when executed, was attested by 416] only one witness, and therefore not *a legal mortgage. And that no part of the money has been paid. The bill further charges that on June 19, 1835, the defendant Remmington combining with the defendant Doud, who is his father-in-law, to cheat and defraud the complainant, conveyed the sanie land by deed absolute to the said Doud, and that the said Doud well knew of the defendant’s mortgage at the time he received said deed, and that the defendant Remmington is now insolvent.

The defendants are called upon to answer, and the prayer of the bill is that the lands may be sold, and for general relief. The defendant Doud, in his answer, admits the indebtedness of Remmington to the complainant, and the execution of the mortgage, but denies that he had any knowledge of the same until September or October, 1835. He denies that any deed was executed to him by Remmington on June 19, 1835, but states that he has a deed of the sixty-five and one-half acres of land in Bazetta, executed by Remmington to him on the 19th January of that year; that at the time said deed was executed Remmington was indebted to him in the sum of $2,300 or thereabouts, and that he now holds his note for $1,370; u that the said deed was given to secure the payment of the first-named sum, and for no other purpose whatever,” and that it is the only security he has for the $1,370. That said deed was not recorded until August, 1835, and' the reason for not recording it sooner, was that the said Remmington not wishing his creditors to know of its execution, desired him to withhold it from record, promising at the same time, to pay him ^what he owed, but failing to do so but in part, he finally had the deed recorded. Ho states that he has no claim to the land in Mecca, but insists that his title to the sixty-five and one-half acres is complete and perfect. He denies all fraud, etc.

Remmington’s answer contains little except that he received but $700, for which he gave his note payable one year after date for $756, secured by mortgage. That he has since offered to pay the *$700, which Lake refused- to receive; that Lake is indebted [417 to him on account, and that the one-half acre of land in Mecca is abundantly sufficient to secure the debt.

The deed is attached to and made part of the answer, and ap- .• pears to be an unconditional deed, the consideration expressed being $550.

Tod, who appears to have been made a defendant long after the bill filed, and, at his own request, claims title to the one-half acre of land in Mecca, by purchase at sheriff’s sale. Ho says that he had full knowledge of the complainant’s claim, having filed the bill and prosecuted the claim as his counsel. That at the February term of the court of common pleas of Portage county, a judgment was recovered in favor of Spencer and Sharp, against Remmington and one Roberts, for $1,822, and that he, as counsel for the judgment creditors, caused an execution on said judgment to be levied on the said one-half acre of land in Mecca, as the property of Remmington, entertaining doubts as to the legality of the plaintiff’s mortgage. That he purchased said land at sheriff’s sale for the sum of $466.66, which sale was confirmed by the court, and he has received a deed from the sheriff, and holds the title in trust for Spencer and Sharp, having purchased the land as their attorney.

.Many witnesses have been examined and much testimony taken in the case. The relevancy of much of this testimony is not perceived. On the part of the complainant, it is proven that the deed, under which the defendant claims, was executed at Mecca, and that the magistrate who took the acknowledgment resided eight or nine miles from that place, and that at the time the acknowledgment was taken he was requested to keep the matter secret. These facts are proven by the magistrate who took the acknowledgment. He states further that the deed was prepared by Remmington when he arrived at the house, and that it was attested by him and a daughter of Doud. At the same time there was a magistrate residing within a few rods of Remmington’s house, where the deed was executed. *He states further, [418 that at the time he was suspicious that all was not right, but that he had at other times been requested to keep such things ■secret. That he resides about one and a half miles from Doud, who requested him to go and take the acknowledgment, and that he frequently had done such business for Doud; that Remmington remained in possession of the land, receiving the rents and profits. And also, at or about the same time this deed was executed, he took the acknowledgment of another deed from Remmington to Doud, of the one-half acre of land in Mecca. It was proven that this last deed was subsequently given up and canceled. There is no evidence in the case that Remmington had ■any other land, except a parcel for which he had contracted and paid a part of the purchase money, and which was subsequently, by his order, conveyed to Doud, he paying the balance of the purchase money.

On the part of the defendants, witnesses have been examined to prove the indebtedness of Remmington to Doud, and the note of $1,370 is in evidence. It bears date at Yernon, August 10, 1835.' The principal witness examined to this point is Lucas Doud, a son of the defendant Doud, and he has been examined a number of times. He states that Remmington and himself had been partners in mercantile business; that they dissolved partnership, and sold out their goods to. one Yietts, in February or March, 1835; that they commenced business with a stock of goods which they purchased of their father, and at the time of dissolution wore indebted to him $2,300 or $2,400. The indebtedness was made up of the following items: Groods originally purchased, $850 or $900; cash, $400, $300 of which had been given to the witness by his father at the time of his setting out in business, and i§100 lent to the firm; $525 lent to the firm ; butter and cheese during two years sold to the firm, amounting to about $300; two barrels of pork, $24; cash lent, $200; patent clock, worth $12; flour and boards, amount unknown. None of this 419] had been paid, except as Doud had ^traded with the firm to the amount of $75 or $100, he having paid in hand, at the time of trading, for small articles in butter and cheese. At a subsequent examination the witness increases this indebtedness by other items amounting to $275. He says that at the time of the dissolution of the partnership they sold their goods, then on hand, to Yietts, for $750, and took a note payable to Samuel Doud. Yietts states that the amount given for the goods by himself was $762, which has been paid to Doud, the defendant; and that at the time he made the purchase he understood that Remmington and Doud were indebted to Samuel Doud beyond this amount. Lucas Doucl also states that the firm was owing about $4,000, and had due to them about the same amount. Although the partnership was dissolved in February or March, 1835, no settlement took place as between the partners until August of the same year, when he agreed to collect $900 or $1,000 of the debts, and pay one debt in Pittsburg, amounting to about $1,000-. Remmington was to collect the other debts due the firm, and pay the other claims against it. • In pursuance of this arrangement the note for $1,370 was executed to his father.. He states further, that claims due the firm and assigned to his father, amounting to about $600, were put into the hands of a magistrate to collect, and when collected he received to his own use $500 of the avails, and his father received the balance. There is further testimony, that in 1835, claims of the firm amounting to $500 or more, were assigned to Samuel Doud, and put into the hands of Justice Sperry for collection, but when collected, the money was paid over to Remmington and Lucas Doud. It is stated by Justice Benton that Remmington and Doud were transacting business together; they left notes to a considerable amount with him for collection, all assigned to Samuel Doud; but when collected the avails were paid over to Remmington and Lucas Doud. In 1837, Remmington deposited with Justice Bascum a large amount of claims for collection, with ^directions to pay from the avails some specific [420 debts, and to pay the balance to Samuel Doud. During the progress of the case it was referred to a master to institute an inquiry as to the consideration of deed from Remmington to Samuel Doud, and the latter was called upon to exhibit his account against Remmington, or against the firm of Remmington and Doud, but exhibited no account and no claim, except the note of $1,370, stating that he trusted to the honesty of Remmington and Doud to keep the accounts, and this statement is confirmed by the testimony of Lucas Doud.

Such arc the substantial and leading facts of this ease as they appear from the bill, answer, exhibits, and testimony, and the great inquiry arising upon these facts is, whether the deed given by Remmington to the defendant Doud, in January, 1835, was given in good faith, or whether it was done to defraud creditors, and of course void as to such creditors and subsequent purchasers. In examining a question of this kind every circumstance connected with the transaction must be carefully considered. Fraud is never presumed, but must be proved. But, in making proof, greater latitude must be given than in ordinary cases. Honesty is open and fair, while fraud seeks concealment. To cover it, statements, which, if not entirely false, yet deceptive, will be made, and the truth itself concealed. A man who has been guilty of a fraudulent transaction, although called upon to answer under oath, will rarely confess it. If he does not absolutely deny, he will evade, and give a false coloring to the transactions in which he has been engaged. Yet, athough there may be a general denial of fraud in an answer in chancery, yet it not unfrequently happens that the facts stated in such answer leave no doubt of the existence of fraud.

In the case before the court, the defendant Doud is charged in the bill with having been guilty of a fraud in receiving a deed from his son-in-law Remmington, with intont to defeat the just claims of the creditors of that son-in-law; and he is called upon 421] to answer that allegation. In his answer he ^denies this fraud, and undertakes to give a true history of this transaction verified by his oath. Ho states, that at the time of the execution of this deed, which was on January 19,1835, Remmington was indebted to him in the sum of $2,300 or $2,400, and that the deed which was then executed, although absolute upon its face, was intended merely to secure the payment of this indebtedness. That at the request of his son-in-law he withheld this deed from record, having confidence in his son-in-law that he would satisfy this debt, and his son-in-law being fearful that if the deed was put on record it would alarm his creditors, and induce them to push their claims against him. That his debt against Remmington was reduced to $1,370, for which a note was given in August, 1835, at which time, having become apprehensive that he should not get his pay, he got the deed recorded.

Now, this statement is tolerably fair upon its face, although it looks as if there was something, at least a little, wrong, in concealing from the creditors of his son-in-law the fact that he had "got a deed of his property, that son-in-law continuing at the same time in business as he had done before. It might deceive those creditors, and might possibly induce other persons to give a credit which they would not have done had the fact been known. And it is not readily perceived why, if he had that confidence in his son-in-law which he professes to have had, he should have been anxious to take the deed at all.

Passing over these matters for the present, I remark that the defendant, having undertaken to give an account of his transaction, was bound to tell the truth. If it was fair and honest, a plain narrative of facts was all that was necessary, and if there has been any misrepresentation, any concealment, any evasion, any deception, it must operate strongly against the defendant. It is worthy of remark, that although it is stated in the answer, that Remmington was indebted, nothing is said as to the nature of this indebtedness, or of its origin. But is it true that Remmington was indebted to the defendant at the *time of the execution [422 of this deed? The defendant avers it, and he has attempted to sustain his answer by proof. And this proof makes a case entirely different from that stated in the answer.

The answer states that Remmington was indebted $2,300 or $2,400, and that the deed was executed to secure the payment of this amount. There is no evidence that Remmington was indebted individually a single cent, but the proof is, if the testimony can be relied on, that Remmington and Doud were indebted in this amount. Not, however, at the time of the execution of this deed, but in February or March following, when the firm was dissolved. Whether any part of this indebtedness accrued after the date of the execution of. the deed, we are not informed, for in this case woare left without date as to any part of the claim of Doud against the firm, except as to the first items. Now whether the firm of Remmington and Doud were indebted to Samuel Doud is not perhaps of much consequence. The testimony is vague and uncertain. The principal witness is very indefinite in his recollections. It was about $2,300 or $2,400. It was about such a sum or such a-sum. The account of -the firm against his father was about $75 or $100. I incline to the opinion, however, that they were indebted-to some amount; the extent is altogether uncertain.

But the case made in evidence is entirely different from that made in the answer. In the answer, Remmington is made the-debtor, by the evidence of Remmington and Doud. If the intention was to secure a debt due from this firm, why not state it? Why set up a different pretense? Will it be said if the firm were indebted, each individual member of the firm was holden for the debt? This is true, and had the fact been stated in the answer as it would appear from the proof to have existed, it would have been equally well'-for the defendant. He had precisely the same-right to take a deed from Rommington, to secure a partnership, as 423] an individual debt. But not having so ^stated in his answer, he has been guilty of deception and misrepresentation. And this circumstance goes to throw strong suspicion upon the transaction.

Who are Remmington and Doud? The son and son-in-law of the defendant. This, then, was a family transaction, and must be subjected to the closest scrutiny. While in business together, they employed a magistrate to make collections. The notes deposited for this purpose were all assigned to the father, but, when collected, the avails were received by the members of the firm. So after the dissolution of the partnership they deposited claims for collection with another magistrate, all assigned in the same manner, but, when collected, the money was received by the partners. This is not according to the ordinary mode of transacting business, but perhaps there is nothing in it which would go to implicate tho defondant.

There is, however, another circumstance disclosed, which is not so readily disposed of. At or about tho time the deed in controversy was executed, another deed was executed covering the one-half acre of land in Mecca with its appurtenances. With respect to this deed not one word is said in the answer. We know not for what purpose it was given, nor for what consideration. It is not sufficient for the defendant that this deed was afterward given up and canceled. As an honest man he ought to have stated in his answer that this deed was executed, and why it was executed, the consideration, and why it was subsequently given up and canceled. There is every reason to believe that it was a part oí the same transaction, and this concealment, on tho part of the defendant, is calculated to excite suspicion.

What other circumstances are disclosed which go to throw sus•picion upon this transaction ? At the time of the execution of this deed, Rommington, the grantor, was residing in Mecca, in his house upon the one-half acre of land. Within four rods of this house was residing a magistrate authorized to take the acknowledgment of deeds.' But instead of applying to him for the purpose of taking tho acknowledgment, another is called from a 424] distance of eight or nine miles to do this business. *And this magistrate thus called, and a daughter of the grantee, are the .only witnesses to the execution, of tho deed, excepting the parties to it. Added to this we have the testimony of the magistrate taking the acknowledgment, that he was requested to keep the whole matter secret. It is not surprising that he should have been, as he says he was, under the impression’ that all was not right. And how any person made acquainted with all these circumstances could have entertained a different opinion, I can not conceive.

It is proper, too, to inquire, why, if this deed was intended to operate as a mortgage, was it not so expressed? And if the intention was to secure the payment of $2,300 or $2,400, why is the consideration expressed $550 and no more ? These circumstances of themselves are of little moment, but in a case-where suspicion is so justly excited, may with propriety be named.

The deed was executed in January and was not recorded until August, 1835. And according to the statement of Doud in the answer, it was thus withheld from record at the request of Remmington, for fear that if recorded it might injure his credit, or at least that his creditors might- be induced to press their claims against him. Creditors were then in the contemplation of the parties, they were talked about, and if the intent was not absolutely to defraud, it certainly was to deceive them. And the course pursued was calculated to give to Remmington a false credit, and it had this effect. Upon the strength of his appealing to be the owner of this land, he was enabled to procure money from this complainant, which there is no probability that he could have done had the fact been known that the land had been conveyed to his father-in-law.

Considering all these circumstances, the relation between the parties, the secret and unusual manner in which the deed was executed, the request made of the magistrate to keep it secret, the length of time it was withheld from record, and the reason-assigned for thus withholding it, the-falsity and deceptive character of the answer when compared with the testimony of the case, and the whole current of transactions *between the parties, [425 we are irresistibly led to the conclusion that this deed could not have been made and received in good faith, but that it was in fact fraudulent as to creditors and subsequent purchasers, and as to them is therefore void.

A question is made by defendant’s counsel whether the deed of the complainant, not being a legal mortgage, can be enforced. Of this I suppose there can be no doubt. This, although not a legal, is an equitable mortgage, and may be enforced in equity. And the lien of such mortgage, according to the decision of this coui’t in the case of the Bank of Muskingum v. Carpenter, 7 Ohio, 21, will in equity be preferred when of prior date to a judgment lien.

The defendant, Tod, does not claim any interest in the property as against the complainant, but insists that the land in Bazetta should be first sold to satisfy the mortgage, which, if sufficient will leave his title clear to the one-half acre in Mecca. A decree may therefore be taken that, unless the debt due the complainant shall be paid within some short period, all the lands covered by his mortgage shall be appraised, and the sixty-six and one-half acres in Bazetta first sold.

If this is sufficient to discharge the mortgage debt and costs of suit, no further proceedings to be had; but if not sufficient, then the one-half acre in Mecca to be sold. If, upon the sale of the land in Bazetta, there should be a surplus of money remaining in the hands of the officer after satisfying the mortgage debt and costs of suit, that surplus to be paid over to the defendant Doud. If a surplus upon the sale of the land in Mecca, that surplus to ,be paid over to the defendant Tod.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    *Elisha Barrett v. Benjamin F. Allen.
    Where a note payable in specific articles falls due on Sunday, a tender on the Monday following is good.
    Where a note is payable in cloth, “ at a fair wholesale factory price,” parol evidence is admissible to show that a eertain scale of prices was intended different from tho actual wholesale prices in the market.
    This is an action of assumpsit from the county of Delaware.
    The case was submitted to a jury, on the last circuit, in the county of Delaware; but, by consent of counsel, a juror was withdrawn, the facts agreed, and the case submitted to the court to determine the questions of law.
    The declaration is founded on two promissory notes. They both bear date at Delaware, on October 30, 1827; and the defendant, by'tbe one contained in the first count, promises to pay, eight years after date, at the Delaware woolen factory, to E. Barrett, the nominal plaintiff, or order, $1,000 in woolen cloth, “at a fair wholesale factory price.” The other note declared upon in the second count is in the same terms and for the same amount, but payable nine years after date.
    The general issue is pleaded by the defendant, and two special pleas, which the counsel agreed should be considered, as a notice of special matter, in bar of the action. The first sets forth that before the commencement of the suit, to wit, on October 30, 1835, and the day on which the first note became due, at the Delaware factory, he, the defendant, was ready to pay said note, and did then and there turn out and tender the cloth that was then due on said note, and had the same appraised by disinterested men at $1,000 and upward, and boxed up for the said E. Barrett, being an amount sufficient to pay said note, at fair wholesale factory prices. The defendant also avers that he has at all times since the said October 30, 1835, had said cloth ready to be delivered to said Barrett, or any other person entitled thereto; *but no one has appeared to demand and receive the same, [427 and makes profert of it in court, etc.
    The second special plea avers a tender, in substantially the same words, to the other note, on October 30,1836, when it became due and payable as appeared upon its face.
    H. Stanbery, for the plaintiff
    The sufficiency of the tenderás contested by the plaintiff on the ground that the mode of valuation was incorrect; and further, as to the note due Oetober‘30, 1836, that the tender was notfin time.
    First, as to the question of time. The note bearing date October 30, 1827, and payable nine years after date, fell due October 30, 1836, which was Sunday. The cloth was not appraised and set apart until the next day.
    “ It is an unquestionable rule that a tender can not be made after the day of payment.” Swift’s Dig. 397; 8 Term, 188.
    It is true no one is obliged to perform an agreement on Sunday, but if the day of performance happen to fall on Sunday, the act must be done on Saturday. Kilgour v. Miles, 6 Gill & Johns. 268.
    If then a designation and setting apart of sufficient cloth to meet the note was necessary to the tender, it is clear the defendant was not in time.
    Was such designation necessary ? It is to be observed that we have, so far as the plaintiff is concerned, an executed contract. Nothing remained to be done by him in the way of condition precedent, or mutual. Is it enough that the defendant shows a mere ability to pay his note on the day it was due?
    Whether we regard this question at common law, or under our statute, some act of designation is clearly necessary.
    At the common law the setting.apart of the article was necessary to the performance of the contract, and amounted to a complete discharge. Co. Lit. 207, a ; Peyton’s case, 9 Coke 79, a. Chancellor Kent, 2 Com. 508, lays down the rule as follows: “If the debtor be present in person or by his agent, and makes a tender 428] of specific articles at the proper time and *place, according to contract, and the creditor does not come to receive them, the better opinion is, that if the article be properly designated and set apart, the debt is thereby discharged.”
    The case of Barney v. Bliss et al., Chip. (Vt.) 399, was an action of assumpsit on a note for the payment of 10,000 feet of lumber, on October 1, 1819. The plea stated that on the day mentioned in the note, the defendant had 10,000 feet of lumber prepared for the payment of the note, and that they were ready then and there to have paid the same, and that they were still ready, but the" plaintiff did not come to receive the same. The court held the plea bad, and that where the agreement was upon an executed consideration, the defendant must fehow an actual tender, or, at least, that the goods were set apart for the plaintiff upon his failure to attend and receive them, which would amount to a tender in law, and that he must make such designation of the article on the day and at the place of payment, as will transfer the property to the promisee and enable him to preserve the property itself.
    In 5 Johns. 119, the defendant made two notes to the plaintiff for ten dollars each, payable in produce at the defendant’s house. Upon the plea of payment the proof was, that the defendant had hay in his barn on the days the notes fell due, and was ready to pay in hay. The court held the tender insufficient, and that a declaration that there was produce in the stack or barn for the plaintiff, without ascertaining the amount and value, was insufficient.

      Our statute, as to the tender of specific articles, also contemplates a setting apart of the thing tendered, and only differs from the common law in requiring reasonable care of the article to be taken by the debtor.
    In every point of view some act of designation seems necessary, and it ought to be so distinct and explicit as to vest the property in the creditor, so that in the event of destruction by fire or other accident, it may be known whose property has been destroyed.
    *The propriety of such designation is especially manifest [429 in reference to a contract like the one at bar — to pay $1,000 in cloth on a day certain at the factory price. The act of tender ought to bo explicit and of mutual obligation, otherwise a temptation to fraud is offered to the debtor, as the market value of the cloth subsequently fluctuates. If, for instance, it suddenly depreciates, the debtor is interested to maintain the tender on the day when the price was high ; if it advances he is interested in keeping the cloth and paying the $1,000 and interest, which he may readily do if he is fixed by no overt'act of tender or designation.
    The next question is as to the sufficiency of the tender in amount, and applies to both notes. The quantity of cloth turned out on each note was much short of the value of $1,000 ; but by taking an artificial wholesale price then understood by the defendant and his workmen to be the wholesale price at that factory, the value was^ affixed. This mode of valuation is attempted to be sustained by proof that it was the sort of price which was understood by the parties at the time the notes were given — a trade price some twenty-five or thirty per cent, above the cash price.
    I suppose this note, so far as the value of the cloth is concerned, can have but one construction. It contains a promise to pay so much money in cloth at a lair wholesale factory price. This must be construed a money price. The $1,000, not $600 or $700, must be paid in cloth, and if the cloth be not paid the plaintiff must recover just so much money as the defendant has promised to pay. Where the parties omit to fix the value the law knows but one rule, and that is the cash value. But here the parties by their written contract have fixed the value; the promise is to pay $1,000 worth of cloth ; this written contract is set aside, if proof of an understanding that the cloth shall be worth a less sum is admitted.
    In Chipman on Contracts, pages 110, 111, it is said : “ When parties enter into contracts for produce, and have reference to the common going price, it is said, to estimate the property contracted 430] for at the cash price, would be doing injustice to ^debtors ; admit it to be so, yet it is impossible for courts to apply a remedy» the remedy is with the people themselves. If we set aside money as a standard, and substitute the common going price, it must» from the nature of the thing, be perfectly ideal.” “ There is but one course to bo.pursued, let money be the sole standard in making all contracts.”
    Sweetzer & Powell, for the defendant:
    When a note is made payable’in specific articles, at a given day and place, and in the computation of time it is found that the day of payment happens on Sunday, the defendant should tender performance on the Monday succeeding. Avery v. Stewart, 2 Conn. 69; Salter v. Bent, 20 Wend. 205 ; Luce v. Robinson, 4 Mass. 474; Sir Thomas Raymond, 418 ; Johnson v. Baird, 3 Blackford, 182 ; Douglass v. Phillips, 3 Term, 683; Chapman on Contracts, 108, 118.
    Where certain words are used in a contract in relation to a particular trade or custom, the court will admit extrinsic evidence, to show how the contract was understood by the parties at its inception. Chitty on Contracts, 19; Avery v. Stewart, 2 Conn. 69 ; Gleason v. Pinney, 5 Cowen, 152 ; Colt & Pierpont v. Commercial Ins. Co., 7 Johns. 385; Healed v. Cooper, 8 Greenleaf, 32; Williams et al. v. Gilman, 3 Greenleaf, 276; Chipman on Contracts, 29.
   Wood, J.

The plaintiff’s two notes, on which the suit is brought, are before us. On the part of the defendant, it is admitted that on October 30, 1835, he set apart at the Delaware factory a quantity of cloth, estimated to be worth $1,000, at the wholesale prices of that factory, and that on October 31, 1836, he set apart, from a large quantity previously set apart, at the same place, another quantity of woolen cloth, which, by estimate, at the same prices, also amounted to $1,0Q0-; that October 30, 1836, fell upon Sunday. That the cloth, so set apart and appraised, has been since carefully preserved, being intended for the payment of the two notes respectively. It is admitted also to be proved, that the wholesale 431] ^prices of the Delaware factory, as originally established, many years before the date of the notes, and while the factory was owned by Barrett, were graduated at a trade standard, twenty-five or thirty-three per cent, above the cash value; that they continued the same, and the cash value the same, at the time of the exccution of the notes, and when the notes became due. It is proved the notes were given in part consideration for the purchase of the Delaware factory, at an unusually high price, and that it was understood, at the time the notes were given, between the defendant and Barrett, that the wholesale prices of that factory, as they then existed, were to furnish the standard of the prices of the woolen cloths so to be delivered. There is other proof, but it is not necessary to notice it, as it can have no special influence on any question made by the parties.

Two questions are raised by the counsel, upon this proof. First, it is claimed that both the tenders were insufficient in the value or amount of cloth. Second, that the tender on October 31, 1836, is insufficient in point of time, being too late.

It is claimed by the plaintiff’s counsel, that the fair wholesale factory price, mentioned in the said notes, must be reduced to the cash standard, as the value of the property. If this be so, the tender is clearly insufficient in amount, by from twenty-five to thirty-three per cent. t

But is such the law of this case? We see nothing-improper in referring to extrinsic evidence, to ascertain what was the wholesale, fair, factory price intended by the parties. Two prices are clearly established, as well known at the factory, and to the parties. There is a latent ambiguity in the note, it specifies neither the one nor the other, and which did tho plaintiff and defendant intend? The witness has informed us. The defendant bought the factory at an extravagant price, and it was understood the plaintiff was to take his pay in cloth, at the high wholesale prices of the same factory, which ¡mices were established by the plai ntiff himself. If the law did not permit this, the most flagrant injustice would unquestionably *result. But we are not without authority which, upon [482 other grounds, renders it clear that this evidence was competent to ascertain what “ scale of price” the parties intended by which to ascertain the value of this property, in which the notes were to be paid. In the case of Avery v. Stewart, 2 Conn. 69, it was decided by the Supreme Court of Connecticut, that whore a note was made payable in cotton yarn, at the wholesale factory prices, that evidence of the usage of manufacturers and dealers in that article was admissible to show that by those-terms was meant a certain scale of prices, different from the actual wholesale prices in market. And if such were not the law, it is very clear, in this case, palpable injustice would be done. The evidence then shows, in amount, sufficient property was set apart. The next inquiry is, was the last tender too late ? October 30, 183G, when the note from its face fell due, was on Sunday. If these notes were mercantile paper, and the last day of grace was on Sunday, it is a settled rule, that it would fall due on Saturday, and demand of payment should be made on that day ; but in the same case of Avery v. Stewart, it was decided that where a promissory note, not negotiable, was made payable in sixty days from date, and it fell due on Sunday, that a tender on the Monday following was good. In a late case in New York, it was held, that when days of grace are not allowed, and the time for payment or performance specified in the contract falls on Sunday, the debtor may discharge his obligation on the following Monday. The court say they agree with Gould, J., that Sunday can not, for the purpose of performing a contract, be regarded as a day in law, and for that purpose should be considered as stricken from the calendar. 20 Wend. 206. The case of Avery v. Stewart is_ there commented upon and recognized as good law. We are disposed to yield to this authority, and it is decisive of the question in this case. This tender being in season, by which the property was sot apart and boxed up for the plaintiff, as upon the other note, the question does not arise, whether it would be a good defense for the defendant to prove he was at the place of payment, ready, willing, and with the ability 483] *to pay, but did not sot apart the property. If the defendant will give security, as the statuto requires, he may have judgment, otherwise judgment will be given for the plaintiff.

Lane, C. J., dissented on both points.

      The note was in these words:
      ‘‘$1,000. “ Delaware, October 30, 1827.
      “ Eight years after date I promise to pay at the Delaware Woolen Eactory to E. Barrett, or order, one thousand dollars in woolen cloth at a fair wholesale factory price.”


author: Hitchcock, J.

text:
    The Lessee of Simon Perkins v. Daniel Dibble.
    An objection not taken on the circuit will not be considered by the court in bank.
    If a sheriff’s deed recites enough to show his authority it is good, though it does not recite all the statute requires.
    A condition has the same effect whether it be written above or below the signature and seal of the party.
    The mere payment of money secured by mortgage reinvests the legal title in the mortgagor without any deed of reconveyance.
    A defendant in ejectment may protect himself by showing title in a stranger; but he can not set up a mortgage executed by the plaintiff to a third person, unless he connects himself with it.
    In entering lands for taxation under the act of 1825, the quantity in each lot must be particularly set forth.
    This is an action of ejectment from the county of Ashtabula.
    On the trial, the plaintiff, in order to sustain his title, proved that in the years 1815 and 1816 one Ebenezer Doty was in possession of the premises in controversy, being parts of lots 8 and 9 in the township of Ashtabula, in said county of Ashtabula, containing 100 acres, and offered in evidence a deed from Ebenezer Doty to A. Harman, dated Juno 25, 1816, and a deed *from Har- [434 man and wife to Judith Yeomans, dated August 29, 1817, both covering the same land, and to which there was no objection.
    The plaintiff next proved the intermarriage of Ebenezer Doty with Judith Yeomans, in the year 1819, and.that Doty and those claiming under him continued in possession of the land in controversy until the year 1827, and then offered in evidence a deed from the sheriff of Ashtabula county to the lessor of the plaintiff, made in pursuance of a sale on execution, at the suit of A. Harman for the use of Simon Perkins against Ebenezer Doty and Judith, his wife, bearing date November 22, 1836, which was objected to on the ground that it did not sufficiently recito the cause of action, the names of the parties, etc. The deed was received in evidence, subject to these objections, whereupon the plaintiff rested his case.
    The defendant then gave in evidence a deed covering the same premises from Ebenezer Doty to Nathan Strong, dated December 5, 1815, upon the back of which was indorsed a condition or defeasance that the deed should be void upon the payment by Doty to Strong of §120.
    He further offered in evidence a deed from the auditor of the county of Ashtabula to Nathan Strong, dated September 17, 1830, conveying the same land to Strong on a sale for taxes, made in 1827. And in connection with said deed offered in evidence, the auditor’s tax duplicate for the year 1826, together with the proceedings of the auditor and collector in the sale of the land, which were all admitted to be in conformity with law with the exception of the listing, and entry of the land upion the duplicate, which is as follows:
    T ,, -rr„ I Range. I Town. I Sec. | Lot. I Acres. I Tax. Joseph Yeomans. | ^ | 13 J x | 8 & 9 N. part | 100 | $3 48 5
    He also gave in evidence the map of the county which was in the auditor’s office at the time said land was listed and sold, from which map the following is a copy:

    The evidence conducing to prove title out of the plaintiff by the sale for taxes was objected to, but received subject to the objection.

      The defendant farther gave in evidence a deed from Nathan Strong to Moses Osborn, dated September 17, 1830, conveying the land described in the consent rule, and a deed from Osborn to the defendant, dated October 10, 1837, conveying the same land.
    The plaintiff then proved that Nathan Strong, who received the deed from Doty in 1815, died intestate prior to 1830, and that the Nathan Strong who received the deed from the auditor is one of the childron and heirs of the Nathan Strong first named; and that in the year 1826 proceedings were instituted to recover the money mentioned in the defeasance of the deed of 1815, under which such proceedings were had that said debt Was fully satisfied and paid in 1828.
    Giddings & Chaffee, for the plaintiff,
    insisted, that the evidence in the case proved title in the plaintiff; that the deed from Doty to Strong, executed in 1815, was clearly a mortgage *deed; [486 and, the money secured having been paid, the deed became inoperative both in law and equity.
    So far as relates to the sale for taxes, they insisted that the entry upon the tax duplicate was altogether too vague and uncertain; that it was not in conformity with law. and of course a sale made in pursuance of it could not be sustained.
    H. Wilder, for defendant,
    insisted that the deed from the sheriff to Perkins, the lessor of the plaintiff, conveyed no title, because there was no evidence of any judgment or execution, and because the names of the parties, the amount of the judgment and the nature of the action were not recited. 4 Wheat. 503 ; 3 Ohio, 191, 195, 196; Wright, 53; 8 Cow. 598; 12 Johns. 213; 20 Johns. 238.
    He further insisted that the title of the defendant was complete at law, whether traced to the deed of Doty to Strong of 1815, or to the auditor’s deed of 1830. That the deed of Doty to Strong vested the title in Strong, said deed being absolute upon its face. The defeasance indorsed upon the back of the deed being no part of it, .did not change its legal character. Although in equity it might be considered as a mortgage, still it was not such at law. And even admitting that it was a mortgage, the money secured not having been paid in time, it became absolute.
    As to the sale for taxes, he insisted that it was in conformity with law and valid. The description, under the circumstances of the case — the two lots adjoining each other, was sufficiently defi. nite and certain. A deed containing the same description would undoubtedly convey the land. He referred to the cases in 2 Ohio, 293, and 3 Ohio, 260, and contended that those cases were entirely dissimilar to this case.
   Hitchcock, J.

There is no controversy about the facts in this case. Although not placed before the court in the shape of an agreed statement, still there is no contradiction in the testimony. 487] The facts are fully set forth in the statement of *the case, and the questions thereon will be considered in the ordor in which they naturally arise.

The only defect in the plaintiff’s proof as making a prima facie case, is supposed to be in the sheriff’s deed of November 22, 1836

This deed is objected to on two grounds: 1. That there was no evidence given of a judgment or levy; and 2. That it does not contain the necessary recitals.

As to the first objection, it would have been fatal had it been taken at the time of trial on the circuit. If, however, it had then been made, no doubt the defect of testimony would have been supplied. But the only question then raised was as to the recitals, in the deed, and this was the question reserved, and is the only one which can now be considered.

The law regulating judgments and executions requires that the “deed of conveyance to be made by the sheriff or other officer, shall recite the execution, or the substance thereof, and the names of the parties, the kind of action, the amount and date of term, of the rendition of each judgment, by virtue whereof said lands and tenements were sold,” etc. The deed in the present case recites the execution and the names of the parties as therein stated, but in referring to the judgment does not again recite their names, neither does it state the amount of the judgment, except as it ap7 pears upon the execution. It recites sufficient to show that the officer had authority to sell, and this we hold to be all that is necessary, although in every instance it would be well for a sheriff or other officer to follow literally the provisions of the statute. So far as the statute makes provision for any recitals beyond what is necessary to show an authority to sell, we consider it as directory merely, and it was so decided in the case of Armstong v. McCoy, 8 Ohio, 128. Such being the opinion of the court, the objection to the sheriff’s deed is overruled, and this deed, in connection with the previous evidence, makes a prima facie case for the plaintiff.

The defendant, to rebut this case made by the plaintiff, relies: 1. Upon the deed made by Doty to Strong in 1815; *2. Upon [438 the tax sale of 1827, and the deed made in pursuance thereof in 1830. "Whether the defendant has connected himself with the title derived from these deeds is immaterial. If the deed of 1815 divested Doty of all legal title to the land; or if he was divested of title by the sale for taxes, and the deed made pursuant thereto, the plaintiff must fail, for he clearly has no title, and the rule in ejectment is inflexible, that a plaintiff must recover upon the strength of his own title, not upon the weakness of that of his adversary.

What, then, was the nature of the deed of 1815 ? Upon its face it purported to be an absolute deed of conveyance of the land in controversy. But upon its back it contained the following condition: “Provided nevertheless, if the said Ebenezer Doty, his heirs, executors, or administrators shall well and truly pay to the said Nathan Strong, his heirs, executors, or administrators a certain note of hand dated December 5, 1815, for the sum of $120, payable by December 5, 1816, with interest; now, know ye, that if the said Ebenezer Doty shall well and truly pay, or cause to be paid, the sum of $120, with interest thereon, according to the above and within statement, then this deed is to be null and void, otherwise to be in full force in law.” Had this condition preceded the signature and acknowledgment of the deed, that instrument would have been a mortgage. But it is urged by defendant’s counsel, that as it follows the signature it is no part of the deed, and the instrument can not be considered in law as a mortgagej however it might be in equity. The court, however, entertain the opinion that the legal effect of this deed is the same as if the matter placed upon it and following the signature had preceded the signature. It shows the purpose for which the deed was delivered, and that purpose was as collateral security for the payment of money. And every deed made for such purpose is a mortgage.

Before foreclosure or entry under a mortgage, the mortgagor must be considered as the owner of the land. And it has been repeatedly decided in this court that the interest of *tho [439 mortgagor may be sold on execution, the purchaser taking the land subject to the mortgage. In the case of Jackson v. Willard, 4 Johns. 41, the Supreme Court of New York held that before foreclosure, although the estate had become absolute at law, the mortgaged premises could not be sold on execution against the mortgagee. And in the case of Hitchcock and wife v. Harrington, 6 Johns. 290, the same court decided that the mortgagor, notwithstanding the mortgage, is deemed seized, and is the legal owner of the land as to all persons except the mortgagee and his legal representatives. If the condition of the mortgage be complied with by the payment of the debt secured on the day, an absolute estate never vests in the mortgagee. And even if the mortgagee have taken possession, the mortgagor, upon payment being made according to the condition, or upon tender of such payment, may re-enter. He is reinvested with the full legal title. 2 Pres. Conv. 200, 201; 4 Kent Com. 193; Bac. Ab. 20, 21; Co. Lit. 209.

But whether after a default of payment, whereby the estate becomes absolute in the mortgagee, and the mortgage is subsequently paid off and satisfied, the estate can revert at law to the mortgagor without a reconveyance, is a question of more difficulty. And the question has been decided differently in different states. The ancient doctrine undoubtedly was, that under such circumstances a reconveyance was necessary. And such would seem to be the law in Massachusetts, Connecticut, Virginia, and Kentucky. 8 Mass. 554; 15 Mass. 233; 17 Mass. 419; 2 Day, 151; 4 Rand. 225; 2 Munf. 337. But in New York and Maryland, it has been held that no such reconveyance is necessary. 18 Johns. 7; 5 Cow. 202; 2 Harris & McHenry, 17; 3 Harris & McHenry, 399. And in the case of Gray v. Jenks, 3 Mason, 520, it was held that a satisfied mortgage was so far an extinguished title, that no action would lie upon it in favor of the mortgagee. If wo look at the true nature of the contract and view the mortgage as it really is, a mere security for a debt; if the debt is the principal, and the mortgage the incident, there certainly, as it appears to me, can be no good reason why a MO] discharge of the *debt should not be held to be a discharge of the mortgage, and put an end to the interest of the mortgagee in the land. Such was said by this court to be the case in Hill v. West, 8 Ohio, 222, and we. are disposed to adhere to the opinion therein expressed. We are aware that this is contrary to the old doctrine upon the subject, but we believe it is in conformity with reason and with modern decisions. 4 Kent’s Com. 193. Nor does this opinion conflict with the statute of February 22, 1831, pointing out the -manner in which satisfaction of a mortgage may be entered. If it did, it could make no difference, as the mortgage debt in this case was satisfied long before the enactment of this law.

Apply these principles to the case before the court, and it follows that the defendant can not protect himself under the deed of 1815, as that was a deed of mortgage, and the debt secured by it was paid and satisfied long before the commencement of this suit.

The only remaining question is as to the validity of the tax sale of 1827. It is admitted that this sale was legally made, provided the land was properly entered on the tax duplicate. The quantity of land taxed and sold was 100 acres. It was described as being the north part of lots 7 and 8, section 1, township 13, range 3. The quantity of land in each lot is not specified, and it was sold as an entire tract. The evidence shows that these two lots adjoined each other on the east and west, and there could have been no difficulty in finding the land had it been conveyed by a similar description in a deed.

But although this description might be sufficiently certain in a deed, it does not follow that it is sufficiently certain to sustain a sale for taxes. In order that such sales may be sustained, it is necessary that all the requisitions of the law under which they are made, should have been complied with, and any departure from these requisitions will defeat the sale. Such has been the uniform decision of this court.

The law under which this land was listed for tax and entered upon the tax duplicate, is the act of February 3, *1835, en- [Ml titled “ an act establishing an equitable mode of levying the taxes of this state.” Chase’s Stat. 1476. Section 10 of the act requires of the county assessor to take a list of all property in his county, subject to taxation, and for this purpose it is made his duty to visit each house in the county, etc. In section 11 the list which is to be taken is prescribed. It “ shall particularly set forth the name of the owner or owners, the number of acres of land in each particular tract, lot, section or subdivision thereof; the range, township, section, quarter section, tract, lot or part thereof, or the number of entry, location, survey, or water-course, as the nature of the general or particular surveys may require, so as completely to designate or identify'the same.” The great object here is to have the list so made as to designate and identify the land, and the different modes-of division in the different parts of the state referred to. Whatever that division may be, whether into entries and surveys, or into townships, sections, quarter sections, tracts, or lots, the number of acres in each division, or subdivision, must be separately and. “ particularly set forth.” If the owner of the land does not furnish a list, it is made the duty of the assessor to make it out, and having taken those lists and affixed a value to the property, it is his duty to return an abstract of the same to the county auditor. From this abstract returned, the county auditor was to make out a tax duplicate. That there need be no mistake, section 89 of the act prescribes the forms which shall be made use of by the officers whose duties are prescribed in the act. These forms show, that both in the list and in the duplicate, the precise number of acres in each particular tract or lot, or part thereof, must be particularly set forth.

In the caso now before us this was not done. The description is 100 acres in the north part of two lots. It does not show the number of acres in each particular lot,” and is not in this respect in conformity with the law.

No case precisely like the one now before us has ever been decided by the court; but adopting the principles by which we have á£2] been governed in cases somewhat analagous, we must *hold that this tax sale was void, and that the deed made in pursuance thereof conveyed no title.

There being nothing to impair the prima facie case made by the plaintiff, he is entitled to judgment.

Judgment for the plaintiff.


author: Lane, C. J.

text:
    George Tapscott and Wife v. Jacob Williams.
    Where lands descend to coparceners with warranty, and they are evicted before severance, one of them can not sue alone on the warranty for his share of the damages.
    This is an action of covenant from the county of Hamilton.
    In March, 3816, the dofendant by deed conveyed forty feet from the south side of lot No. 98, in Cincinnati, to Samuel W. Davies, •with a covenant of general warranty. Davies conveyed the premises to Arthur St. Clair. At his death they were assigned to his widow for her dower, and she has been evicted by a paramount title. Mrs. Tapseott, one of the six children, and heirs of St. Clair, with her husband, are plaintiffs, prosecuting this suit.
    H. Hall, for the plaintiffs:
    The plaintiffs are met at the threshold of this action with an objection to a recovery, because they have brought it without joining their co-heirs.
    If one or more of the six heirs at law of Arthur St. Clair had, by compromise or otherwise, released his or their right of action against the defendant, could an action thereafter have been maintained by all of them jointly? And can one heir release or compromit the rights of co-heirs to an action of covenant? We think not.
    If these positions are correct, and we apprehend they are, it may readily be perceived that unless the heirs can maintain *their action separately, they may be deprived of their [443 .right of action altogether. •
    The heir at law can not be barred of his rights because a coheir refuses to join with him in action to recover or maintain his inheritance.
    Again, as in the present case, where some of the co-heirs have died leaving children and heirs at law, how shall the action be maintained, where the plaintiffs might hold interests of various extent from one-sixth to one-twelfth, in what manner shall infants, suing by next friend, or administrators, be joined with others, or rather can they be joined at all in an action at law?
    It will be conceded that there is a remedy in cases like this, and if heirs can not sue jointly it will follow they may bring their action separately.
    The rights cast upon heirs at law by inheritance are individual rights; and they must be pursued individually and separately, and not otherwise.
    V. Worthington, for the defendant:
    The case made, shows a right of action, to some extent, in the six heirs of Arthur St. Clair, deceased, aDd not in one of them. Upon the death of Mr. St. Clair, this property descended to his six children, and the covenant of warranty runs with that descent, and vested in them a joint right of action, should the covenant be broken by an eviction, during their seizin, and not a- separate right of action in each, in proportion to his interest. King v. Kerr’s Adm’rs, 5 Ohio, 154; St Clair v. Williams, 7 Ohio, 111, pt. 2; Astor v. Miller, 2 Paige, 78; Rice’s Heirs v. Spotwood’s Heirs, 6 Monroe, 41; Townsend v. Morris, 6 Cow. 123; Booth v. Starr, 1 Conn. 249. There is a class of cases that bear a striking analogy in reason and effect with this. I refer to those cases of covenants running with the lands, where the breach ensues while the title is in the grantor. In such' a case the action is in the name of the grantor and his representatives, and not in that of 444] the grantee. Mitchell v. Warner, 5 Conn. 497; Davis *v. Lyman, 6 Conn. 249; Hubbard v. Hubbard, 10 Conn. 433; Backus v. McCoy, 3 Ohio, 218; Abbott v. Allen, 14 Johns. 248; Walker v. Hill, 17 Mass. 386; Hamilton v. Wilson, 4 Johns. 72; 4 Kent Com. 459; 4 B. & P. 158; 4 Maule & Sel. 53.
   Lane, C. J.

The covenant on which the suit was brought was single when.made, and by general principles must be enforced in a single action. The condition under which it admits parcelment, is a tenure of the estate by different persons, while the covenant was running with it; in this case it attaches to each separate part, and the holder of each has his separate remedy. 7 Ohio, 111, pt, 2. This condition does not exist in the present case. The land from which they were evicted is held by the children of St. Clair, as parceners, who collectively before partition have but one estate, make but one heir, have a joint interest, and should ordinarily pursue a common remedy for their rights. Co. Lit. 163, 164 ; Black. Com. 187, 189.

Besides, a covenant real when broken loses its transmissible character, and becomes a mere chose in action. If broken in the life of the ancestor it descends not, but must be sued by his administrator. If it descend unbroken to the heirs, as parceners, they are parties to the contract, by virtue of their joint estate, and tf it becomes a mere claim for damages in their hands, all the survivors, as in other personal action, must join as parties to the suit.

Judgment for the defendant.

       See ante 333, note.


text:
    Joseph P. Wightman v. The State of Ohio.
    The act of. March 15, 1837, incorporating the town of Marietta, does not confer exclusive jurisdiction on the town council to fine those who sell ardent spirits without license. Their jurisdiction, upon provision being made for its exercise by ordinance, is concurrent with that of the court of common pleas.
    A fin^assessed in either jurisdiction, it seems, may be set up as a bar to a prosecution for the same offense in the other.
    This is a writ of error to the court of common pleas of the county of Washington.
    The plaintiff in error was indicted, at the August term of the court of common pleas, 1840, in the county of Washington, for retailing spirituous liquors within the limits of the corporation of Marietta, not being licensed to keep a tavern, etc.
    At the October term of said court, 1840, the plaintiff in error appeared and filed his special plea in bar to said indictment, in which he avers that the said spirits were retailed within the limits of the town of Marietta, as incorporated by an act of the general assembly of the State of Ohio, passed on March 15, 1837, to wit, at Marietta aforesaid, etc.
    To this plea the prosecuting attorney demurred, and the plaintiff in error joined in demurrer; and at the same term the court of common pleas sustained the demurrer to the plea in bar, and adjudged the plaintiff in error to pay a fine of ten dollars and costs of prosecution.
    453] *This writ of error is prosecuted to reverse these proceedings, and the decision of the common pleas, in sustaining the demurrer, is the only assignment for error.
    Goddard, Convers and Whittlesey, for the plaintiff in error,
    insisted that the town council of Marietta had exclusive jurisdiction over the offense whenever committed within their chartered limits (Woodruff v. The State, 1 Southard, 344; Bisbee v. Mansfield, 6 Johns. 84; Barter v. The Commonwealth, 3 Penn. 253), and that the exercise of such a power concurrently by two separate tribunals could not fail to produce inconvenience, as well as a constant risk of violating the maxim in the constitution, that no one shall be twice put in jeopardy for the same offense.
    No argument for the state came to the hands of the reporter.
   Wood, J.

The act incorporating the town of Marietta, 35 Ohio L. L. 249, is by express provision made a public act, and the court are bound ex officio to notice its provisions, and as such it becomes, so far as it is relevant, a part of the special plea, without being set out by the plaintiff in error.

Section 5 of the act contains the general grant of ¿lowers, to wit, to license such coffee, ale, porter, and other public houses oft entertainment as may be necessary for the accommodation of travelers, and -to suspend such licenses on well-founded complaints. The town council are then authorized to punish by fine, not exceeding ten dollars for each offense, any person who may retail spirituous liquors without license, and within the limits of the corporation.

The plaintiff claims this power to punish the unlicensed vendor of ardent spirits is exclusively vested in the corporation, and that the plaintiff is, therefore, exempted from the operation of the general laws of the state. If this be true, the plaintiff in error, and all in like condition, for anything that a¿ipears in this case, are 454] entirely beyond restraint or control; *for while the grant of ¿lower to punish by the town council is ample, it will hardly be contended that it can be enforced, until the mode in which this power is to be executed is provided for by some ordinance of the corporation, and nothing appears upon this record to show that any such ordinance exists. It could never have been the intention of the legislature to confer this power exclusively u¿ion the corporation, and jilace the vendors of ardent spirits beyond the reach of all law, until provision was made for the exercise of this power so conferred.

Besides, there is no clause in this act of incorporation providing for the repeal of the general law of the state, nor any provision thereof, as contained in the act entitled “an act granting licenses and regulating taverns,” unless it is by implication, and such repeals are not to be favored. The general law provides that if any person shall retail, etc., without being licensed, etc., he shall forfeit any sum not exceeding $100 nor less than five dollars, to be recovered by indictment, etc. Under the general law the measure of punishment may be greater, and the mode of effecting it different; but still we apprehend that distinct tribunals may have concurrent jurisdiction, in the absence of any expression clearly indicative of the intention to confer it exclusively upon the corporation.

It is said by counsel, if this concurrent jurisdiction is sustained, a man may be twice tried for the same offense, and twice subjected to conviction and punishment. This does not seem to us to follow; but it is clear that a fine assessed by either jurisdiction, the court of common pleas, or by the authority of the corporation, would be a bar to another prosecution for the same offense in another jurisdiction.

Judgment affirmed.


text:
    *Ebenezer S. Beach v. Joseph Hayward.
    After the death of an ostensible partner, a surviving dormant partner may sue alone upon a partnership contract.
    In such action the defendant, it seems, may set off a debt due from the firm.
    This is an action of assumpsit from the county of Cuyahoga.
    The suit is brought on the note of the defendant payable to R. H. Backus. Tho plaintiff avers he is the surviving partner of the late firm of R. H. Backus, composed of the plaintiff, as a dormant, and of Backus, as the ostensible partner. The declaration also sets out the promise as made to the firm, under the name of R. H. Backus. The general issue is pleaded, with a notice of set-off. Tho proof shows the note was given for partnership property, and the question is, if a sui’viving dormant partner may sue a negotiable note given in the name of one of the partners.
   Lane, C. J.

It has been held that in the case of dormant partners, not privy to the contract, the other members of the firm may omit their names in an action. 1 Chitty’s Pl. 13. But this is an exception to the general rule requiring the suit to be brought in the name of the firm, or, in case of death, by the survivors. The application of the general rule, in cases like this, can work no injustice to the defendant. It is of no moment to him who sues, as his right of set-off is preserved. The suit is well brought.

Remanded for trial.

No arguments came to the hands of the reporter.

      In an action by a firm, the name of a dormant partner need not and ought not to be used. 4 Wend. 628; 3 Cowen, 84.
      In an action by ostensible and dormant partners, the defendant may set off a debt due from the ostensible partner only. 7 Term, 357; Montg. 182.


text:
    *The State of Ohio, Elijah Seymour, James Lockwood, Jr., Henry Bush, Daniel Bartholomew, Calvin Bartholomew, Warner Maltbe, and Lyman Maltbe, for the use of District No. 11, in Geneva, Ashtabula County, v. William Ellis and Augustus Beecher.
    Individuals having no community of interest can not join in a bill in equity. The court at the hearing may sua sponte dismiss a bill for multifariousness.
    This is a bill in chancery from the county of Ashtabula.
   Hitchcock, J.

This case was submitted to the court, upon bill, answer,, exhibits, and testimony.

E. Wade, Russell and Case, for complainants, submitted full-arguments upon the facts of the case, and upon the law arising upon those facts. They cited the following authorities: Story’s Eq. Pl. 417; Trustees of Watertown v. Cowen, 4 Paige, 510; Salvidge v. Hyde, 5 Mad. 138; Story’s Eq. Pl. 234; Varick v. Smith, 5 Paige, 160; Brinkerhoff v. Brown, 6 Johns. Ch. 139, 160; Story’s Eq. Pl. 230, 82, 88, 89, 549, 708, 560, sec. 723; Carew v. Johnston, 2 Sch. & Lef. 293; Wright v. Lathrop, 2 Ohio, 54.

B. F. Wade, for the defendants, submitted the case without argument.

The case made in the bill of complaints is this: In the fore part of the year 1831, school district number 11, then number 5, in the township of Geneva, Ashtabula county, being about to erect a school-house, an agreement was made by parol, between the said district and the defendant, William Ellis, by which, in consideration that the said Ellis, who was a resident within the said district, should be exempted from any tax or contribution toward the erection of said house, the said Ellis agreed to furnish sufficient ground upon which to erect said *house, and also to make a lease to [457 the district of said ground. In pursuance of said agreement said district proceeded to erect upon the land of said Ellis a school-house, which land the said Ellis, nob having made a lease in pursuance of his agreement, subsequently sold to the defendant Beecher, he, Beecher, at the time of his purchase, having full notice of the rights of the district. Beecher, in the year 1839, fenced the said school-house into his inclosure and attempted to remove the same, whereupon the individual complainants, who are residents within ■jhe district, commenced an action of trespass against him before a justice of the peace, and by force prevented him from removing the house and threw down the fences by which it was inclosed. For these acts the defendant, Beecher, sued them in trespass before the same justice of the peace. The prayer of the bill is, that Beecher may bo decreed specifically to perform the contract of, Ellis, by making a lease of the ground upon which the schoolhouse stands, and that he may be enjoined from prosecuting his action of trespass.

To' this bill an answer was filed, and much testimony has been taken. In the view which we take of the case, it is unnecessary to recapitulate the answer or the testimony. It may not be improper, however, to say that the leading facts stated in the bill, so far as relates to the contract, are substantially proven. The object of Beecher, in removing the school-house, is to erect for himself a dwelling-house upon the same site. With respect to the propriety of this step the district are divided in opinion, and a neighborhood warfare has sprung up which it will require something more than a mere bill in chancery to settle.

A careful examination of the bill in this case shows that the complainants have do community of' interest in the causes of complaint set forth; that two sej>arate and distinct causes of complaint are specified, seeking for separate and distinct decrees, and that the decrees sought can not be against the defendants jointly. One object of the bill is to compel a specific performance of a 458] contract entered into between school ^district number 11, in the township of Geneva, and defendant Ellis. So far as this part of the case is concerned the State of Ohio is properly made complainant, suing for the use of the district. Section 45 of the act for the better regulation of common schools, which took effect on April 1, 1838, provides that suits brought in behalf of any school district shall be brought in the name of the State of Ohio for the use of the district. For the purpose of enforcing this contract both Ellis and Beecher are properly made defendants, the contract itself having been made by Ellis, and Beecher having purchased the land with notice of its existence. But the other complainants have no interest in this part of the case. It is the school district as a corporation which is interested, not the individual members of the district.

The object, however, of making'these individuals complainants is disclosed. They have been sued in trespass, and they wish to have the proceedings in that case enjoined. This is not a matter in which the school district has any interest, nor was there any necessity of joining the state with the other complainants to effect this object; nor, in our opinion, was it proper to do it. Whatever might be the decree of the court with respect to this injunction, it could have no effect upon the rights of the district, or of the state suing for the use of the district. Besides, the bill shows most clearly that these individual complainants have an adequate defense at law and have no business in a court of chancery; and even if they had, this controversy is between them and Beecher. They have no complaint against Ellis. Then why is he made a defendant? As well might two individuals, who had contracts with a third for the conveyance of separate and distinct parcels of land, be joined as complainants in a bill to compel a specific performance as can these complainants be joined in this bill. In the opinion of the court the bill is bad for multifariousness and must be dismissed.

But it is insisted, by complainants’ counsel, that the defendants can not object to the billon this ground, having submitted to answer. And the authorities cited in the argument show *thatmul- [459 tifariousness must be objected to by the defendant on demurrer, and can not be by him on the hearing. “ But the court may, ■. however, take the objection at the hearing sua sponte, for the court is not bound to allow a bill of such a nature, although the party may not take the objection in season.” 1 Story’s Eq. Pl. 224, n. 2. It is the usual practice of this court to dismiss bills for want of equity, although answers have been made and testimony taken.

The bill in this case is dismissed at the costs of the complainants, with the exception of the State of Ohio.

Bill dismissed.


author: Grimke, J.

text:
    A. W. Hulet v. John Barnett.
    The testimony of jurors will not be received to impeach their verdict; nor is their testimony admissible on an application in chancery for a new trial, to show an intermeddling of the constable in the jury room, where the verdict was not against law or evidence.
    This is a bill in chancery, from the county of Richland.
    It is brought for the purpose of obtaining a new trial at law.., The bill, after setting forth the substance of the controversy between the parties, the submission of the cause by their counsel to the jury, the charge of the court, the withdrawal of the jury under the charge of a constable, and the rendition of the verdict, avers that the said verdict was unjust, contrary to law and the evidence, and that it was procured through the improper conduct of some of the jurors, and the corrupt interference of the constable, who was much of the time in the jury room conversing with the jury about the cause; that he tool? sides in said cause, and that when he was ordered out of the room by some of the jury, he replied that he was acting under oath as well as themselves. That the constable not only gave the jury his own opinion, but told them he had seen the president judge, who had . expressed his opinion that he did not expect the jury would be 480] out more than half an hour; *and that they should render a verdict for cash for the plaintiff; that the constable, after being ordered out of the room and informed that he should be reported to the court, came into the jury room several times, and conversed in a low tone of voice with some of the jurors. The bill also avers that all these'facts were unknown to the complainant until after the term of the court had expired.
    Bartley, for the plaintiff,
    insisted, first, that a court of equity has power to grant a new trial at law ; and, second, that this is a proper.case for the exercise of the power. He cited 2 Barb. & Harring. Dig. 80, 325; Boots v. Brown, 1 Bibb, 554; Faulkner v. Harwood, 6 Rand. 125; Pegram v. King, 2 Hawk. 492; Bigelow’s Dig. 472. Where some of the jury, being persuaded by others that a majority agreeing to a verdict it must prevail, do not object; and this being proved by many of the jurors, a new trial ought to be granted; and a court of equity may set the verdict aside and award a new trial, where the objection to the verdict comes to the knowledge of the party too late to enable him to move for a new trial. Barb. & Harring. Dig. 82; Colger v. Langford, 1 A. K. Marsh. 237; Lawless v. Reese, 3 Bibb, 486; Cochran v. Street, 1 Wash. 79.
    No argument for the defendant came to the hands of the reporter.
   Grimke, J.

The allegation contained in the bill, that the verdict was contrary to both law and evidence, of course affords no ■support to the complainant’s case. That was a matter of which he was apprised in time to make a motion for a new trial in the court before whom the cause was tried. As regards the charge of misconduct on the part of the jury, the only evidence consists mf the depositions of two of the jurymen themselves. Now, if there is any rule which can be considered as completely settled, and which has been framed for the purpose of setting bounds to 481] the discretion of the court, *it is that testimony of this kind should not'be received. The rule is a most wholesome one, inasmuch as it is founded upon the wisest reasons of public policy. If an inquisition of this kind were tobe established over the conduct of the jury, there is no knowing where it would terminate. .It would produce a great deal more mischief than it could by possibility prevent. It would degrade the jurors in their own estimation,'and in the estimation of the public, and they would soon lose that character of independence which gives value to the institution. The inquiry would not only be impossible in the great majority of instances, but it would work the deepest injury to the administration of justice. In those instances where the misconduct was the greatest, it would never be divulged, because those would be the very cases in which the jurors could not be prevailed upon to implicate themselves ; and to permit those of the jury who were not parties to the misconduct complained of, to impeach the behavior of their fellow jurors, would open the door to every species of insinuation, and would detract from that relation of confidence which should be - established among the members of the jury. The rule is a wise one which absolutely forbids the admission of such testimony.

I have treated the case so far upon the supposition that the evidence was intended to impeach the conduct of the jurors. But it may be said that it is the conduct of the constable which is chiefly implicated; and that is very true. His conduct was such as to merit severe punishment, but unless this conduct on his part led to misbehavior on the part of the jury, I do not see that any ground is laid for a new trial in a court of chancery, when the verdict must now be taken to have been in conformity with, and not contrary to the weight of-ovidence. It is a fit ease for punishing'the officer, but not for setting aside the verdict.

There is not in reality any evidence of misconduct on the part of the jury. They appear to have been highly indignant at the conduct of the constable, and to have so expressed themselves to him in a most determined manner in the jury room. This is the testimony of both Robert Hanna and Joseph *Lindley, the [463 two jurors who have been examined. The fear, if there is any; seems to be rather that his officious intermeddling should have operated in a contrary direction, and have been the reason why the jury were out upward of twelve hours. I do not see any sure ground on which the court could proceed, if it were to grant the prayer of this bill. The injunction must, therefore, be dismissed.

Bill dismissed.


author: *Wood, J.

text:
    The Lessee of Gillis and Wife v. John Weller.
    Under the act of 1824 a nuncupative will is valid to pass real estate.
    This is an action of ejectment from the county of Montgomery.
    The case was submitted to the court on the last circuit iipon the following agreed statement of facts.
    “ It is agreed that Daniel H. Reedor died seized in fee of the promises in the declaration mentioned; that by his verbal will dated J uly 28, 1828, he devised his real estate to his sons, viz., Abraham, Isaac, John J,, and Daniel H. Reedor, and gave pecuniary legacies to his daughters, viz., Elizabeth Gillis, Polly Jober, and Sarah Gillis; that this will was proved in the court of common pleas of Montgomery county, at the August term, 1828» as appears by reference to said will, a copy whereof, marked A,, is hereto attached; that on April 9, 1829, the devisees, his sons, made a partition among themselves of the said premises; that subsequently the defendant, by several conveyances in fee from said devisees and others deriving title under them, dated August 20, 1829, February 22, 1830, March 9, 1830, November 22, 1830, January 27,1831, March 10,1831, and September 25,1834, acquired all the rights and interest of said devisees to said premises, and has been in the possession of the same since the said several conveyances; that Elizabeth Gillis, one of the lessors of the plaint-4-63] iff *is a daughter and one of the heirs at law of the said Daniel H. Reeder; that the lessors of the plaintiff have received the sum of §200, the amount of the legacy bequeathed to her by said verbal will, from the administrator of the said Daniel H. Reeder, deceased.”
    Odlin, Schenck & Howard, for the plaintiffs,
    maintained that a nuncupative will could under no circumstances pass real estate in Ohio. That the right to make such a will did not exist at common law, and therefore could not be exercised but by force of some positive statute. They cited 1 Chase’s L. 182, 492, 571; 2 Chase’s L. 929, 1305 ; 3 Chase’s L. 1785 ; 6 Cruise Dig., tit. Devise, sec. 1, 10; Toller’s L. Ex’rs, 1, 2; Prince v. Hazleton, 20 Johns. 902; Harwood v. Goodright, Cowp. 90; Swinburne on Wills, 28; Just. Inst. B. 2, tit. 10, sec. 14. Nuncupative wills are not to be favored by courts of justice. Prince v. Hazleton, 20 Johns. 902; Matthews v. Warner, 4 Ves. 195, rt. (a); McCune’s Devisees v. House et al., 8 Ohio, 144.
    Crane & Davies, for the defendant
    insisted, that under the act of 1824, a nuncupative will was valid. They cited 4 Kent Com. 501; Swinburne on Wills, 12 ; Bank United States v. Dunseth, 10 Ohio, 22.

      This was a remarkable case. Mr. Oole, at a very advanced age, married a young woman, who, during his life, did not conduct herself with propriety. After his death she set up a nuncupative-will, said to be in extremis, by which the whole estate was given to her, in opposition to a written will made three years before the testator’s death, giving £3,000 to charitable uses. The nuncupation was proved by nine witnesses. Upon the appeal to tho delegates from the sentence of the prerogative court in favor of the written will, Mrs. Cole offered to go to a trial at law in a feigned action, submitting to be bound by the result. Upon the trial at the bar of K. B., it appeared that most of the witnesses for the nuncupation were perjured, and that Mrs. Cole was guilty of subornation. After that she applied for a commission of review, which was refused; and on that occasion Lord Nottingham said: “I hope to see one day a law that no written will should be revoked but by writing.” This is said to be the principal case which gave rise to the statute of frauds.

   *Wood, J.

By the statement of facts, it will be seen a [1-64 single inquiry only is designed to be presented for our consideration. It is this: Whether a nuncupative will made under the act of the general assembly of Ohio of February 26, 1824, is sufficient to pass real estate ?

It will be found by reference to an elementaxy writer, that a devise of lands in England was only authorized by positive enactment ; and that during the reign' of Henry VIII, the power to devise real property was first conferred by act of Parliament, but only then to a limited extent; but during the reign of Charles II, the power was further enlarged and became universal. 2 Bl. Com. 12, 13, 491. In the United States, it is believed, this power will be found only as the result of legislation. By the ordinance of 1787, for the government of the territory northwest of the Ohio, a devise was required to be in writing. The territorial law of 1795 is believed to have made the first provision for a verbal will in Ohio, and that was adopted from the statutes of Pennsylvania. It uses the term estate, and limits the estate to be conveyed by a nuncupative will to eighty dollars. By the term estate, which is employed in this statute, is clearly signified, not only personal peroperty, or the interest that a testator has therein, bat also such an interest as he has in lands, tenements, and hereditaments; and it seems to follow, that this act conferred power to devise real property by a verbal will. Following up the legislation of Ohio, it will be found, that in January, 1805; the act of 1795 was repealed and provision made for disposing of personal property only by nuncupative will. As the power existed under the former, it therefore ceased to exist under the latter act. The act of 1808 repeals the law of 1805, and prescribes the mode of execution of a verbal will, without any direction as to the nature or limitation of the estate it may operate to convey. The first section of this act provides, ' however, that every male person, etc., shall have power by last will and testament, in writing, to dispose of both real and personal estate. If personal property were not here enumerated, it might be contended perhaps with some plausibility, that a verbal will was 465] *not intended to pass the realty. But as the term written, as used in this section, applies to both species of estates, and as the act makes provision for the due execution of a verbal will, and leaives it without restriction, as to what may pass under it, it would seem to be general in its application, and nothing short of statutory provision can limit it to the personalty. The same provision is cojfied into the acts of 1810,1816, and 1824, in relation to verbal wills. The act of 1824 was in force when this will under which the defendant claims was made, and if we are right in our deductions, judgment should be given for the defendant; and we are 'also confirmed in this opinion by the fact that the act of 1831 expressly restricts nuncupative wills to personalty, without limitation as to the amount. Judgment for the defendant.


text:
    Matthew Bonner v. John S. Ware et al.
    Where a patent issues “ to A. B., assignee of O. D., who was executor of' John Hockaday, deceased,” a purchaser under the patentee must look at his peril to see whether John Hockaday’s executor had,the requisite power to assign the warrant.
    An owner of land, tracing his title to a patent, is affected hy notice of the facts contained in the recitals of the patent.

      This is a bill in .chancery from the county of Clark.
    The plaintiff is the possessor of land, held by regular train of conveyances, under a patent to John Hoffman. He brings this suit to quiet his title against the heirs of John Hockaday.
    The plaintiff’s right is incontestable, unless he is affected with notice of the interests of the defendant by the recitals in the patent under which he claims.
    The patent to Hoffman professes to be made in consideration of the military-services of John Hockaday. It grants the land “to John Hoffman, assignee of Joseph Hoffman and others, who, with the said John, were the assignees of George ^Hoffman., who [466 was the assignee of Joseph Ladd, assignee of Robert S. Ware, who was executor of John Hockaday, deceased.” And the question is, whether this recital gives to the holder of the title under the patent such knowledge of the rights of the heirs of Hockaday, that he can obtain no protection in this suit.
    G. Swan, for the plaintiff:
    The main object of this suit is to bring into review the principle laid down by this court in Reeder, v. Barr, 4 Ohio, 446. It is not, however, proposed to disturb that case so far as it relates to private convegances, though there are authorities against it in toto, which seem to have been overlooked in the argument. Sug. Vend. 492; Attorney-General v. Backhouse,17 Ves. 293; Hitchcock v. Sedgwick, 2 Vern. 159; Ward v. Fox, Hughes, 231; Henry v. Brown, Ridg. P. C. 512; Boulden v. Massie’s Heirs, 7 Wheat. 147; McArthur’s Lessee v. Gallagher, 8 Ohio, 512.
    But the error, if any, lies in applying the rule of private contracts to patents issued under the authority of government. This distinction is kept in view by the courts of Great Britain and of this country. Patents emanate not without great scrutiny and deliberation by the government officers, and they bear upon their face the impress of sovereign power. Indeed, they are uniformly considered a high species of record evidence, in which are merged all the preliminary proceedings, certificate, warrant, entry, survey; and behind which no court feel themselves at liberty to look, except in one solitary case, where there has been a junior one upon a valid prior entry. The officers appointed by'the government to decide upon the evidence produced by those entitled to bounty lands in the Virginia military district, in all the various stages, are governed by fixed rules prescribed by law, or necessary to carry into effect the laws themselves. These officers have no inducement to countenance frauds or impositions, and their judgment is not liable to be misled by interest or favoritism. From these eonsid467] erations, as well as general principles of ^policy operating with peculiar force in this country, patents have never been set aside except upon the most solemn proceedings, and then only in a few particular cases. 6 Bac. Ab. 111; 3 Bl. Com. 261; Alexander v. Greenup, 1 Munf. 134; 2 Wash. 55; Jennings v. Whittaker, 4 Monroe, 50; Bledsoe v. Wells, 4 Bibb, 329; Robinson v. Neal, 6 Monroe, 212; Jackson v. Lauton, 10 Johns. 23; Jackson v. Hart, 12 Johns. 77; Stearns v. Barrett, 1 Mason, 152; Witherington v. McDonald, 1 Hen. & Munf. 306; McMin v. Stafford, 2 Bibb, 487; Jackson v. Marsh, 6 Cow. 281; Pollard v. Dwight, 4 Cranch, 421; Taylor v. Brown, 5 Cranch, 242; Polk’s Lessee v. Wendell, 9 Cranch, 98; S. C., Wheat, 293; Jackson v. Parker, 9 Cow. 94; Hartwell v. Root, 19 Johns. 345 ; Buller N. P. 298; Gilb. Ev. 148; Williams v. East Ind. Co., 3 East, 192 ; Armstrong v. McCoy, 8 Ohio, 128; The King v. Combs, Comb. 57 ; Strother v. Lucas, 12 Pet. 112 ; United States v. Perchman, 7 Pet. 96 ; Miller v. Kerr, 7 Wheat. 1; Jasper v. Quarles, Hardin, 461; Bodley v. Taylor, 5 Cranch, 223 ; Finley v. Williams, 9 Cranch, 164; Parker v. Wallace, 3 Ohio, 492; Parker v. Dunn, 4 Ohio, 232.
    The law and its general policy command a purchaser, in no equivocal terms, to presume that all things done by public officers are done in pursuance of their duty. Will this court, the, say that, for the purpose of protecting some latent and stale equity, it shall also be presumed they have omitted and neglected their duty? Such presumptions can not work together. One must yield to the other. It appears to us this is a dilemma from which there is no escape. ■ We must break down the whole current of authorities, or the latter must be given up. We hope to be pardoned if we ask the court respectfully to take this point in the case into their most serious consideration. In our view of the subject the reasoning can not be satisfactorily refuted. Stockbridge v. Stockbridge, 14 Mass. 261; Clay v. Smith, 1 Bibb, 523; 3 Br. C. 640; Decouche v. Savetier, 3 Johns. Ch. 190.
    Besides, as against a stale claim, a grant will be presumed. “Not,” say the court, “that any one really thinks that a grant 468] *has been made, because it is not probable that a grant should have existed without its being upon record, but courts presume the fact, and from the principle of quieting possession.” Hillary v. Waller, 12 Ves. 252; The Mayor v. Horner, Cowp. 102 ; 2 Stark. Ev. 663, 5 ed.; Hall v. Campbell, Cowp. 214.
    A patent bearing on its face the signature of the chief magistraté in the government is the highest species of evidence, and imports absolute verity. 2 Stark. Ev. 189; Bac. Ab., tit. Ex. 610 ; Swann v. Wilson, 1 Marsh. 101 ; Mendell v. Peckell, 9 Wheat. 575.
    Mason and Torbet, on the same side,
    maintained that as against a subsequent purchaser, for a valuable consideration without actual notice, a court of equity will not allow a patent to be impeached for defects existing prior to its being issued, or for irregularities anterior to the date of the warrant on which it is founded. They cited these additional authorities: Patterson v. Winn, 6 Pet. Cond. 355; Miller v. Holt, 1 Term, 111; Patterson v. Jenks, 2 Pet. 216; Stringer v. Young, 3 Pet. 320; Boardman v. Reed, 6 Pet. 328; Sug. Vend. 532; Newl. on Con. 511; Green v. Lighter, 8 Cranch, 247; Miller v. Kerr, 5 Pet. Cond. 202; Hoofnagle v. Anderson, 5 Pet. Cond. 271; Bouldin v. Massie’s Heirs, 5 Pet. Cond. 252; Kerr v. Mack, 1 Ohio, 169; McArthur v. Thomas, 2 Ohio, 419; Wilson v. Mason, 1 Cranch, 100.
    J. L. Miner, for the defendant,
    sustained the rule as laid down in Reeder v. Barr, and confirmed in Brush v. Ware, 1 McLean 533. He also cited Morrison v. Campbell, 2 Rand. 206; Kerr v. Moon, 9 Wheat. 565; Stevenson v. Sullivant, 5 Wheat. 207; 1 Ves. 261, 319.
   Lane, C. J.

That the owner of land is chargeable with notice of facts recited in the deed through which he traces his title, is a proposition true in all cases where the deeds are private conveyances. The application of this principle to recitals *in [469 patents is earnestly deprecated, from its consequences, particularly in the military district. It is urged, with much show of reason, that grants from public officers ought to be presumed to be properly issued by competent authority, upon proof that all requisites have been complied with, and the holder of land who traces his title to such official act has a right to rely upon it as a perfect title.

In 1831, this question was before this court, and it was hold that the rule of notice applied to such acts of government as to private deeds. 4 Ohio, 446. We have again examined the point with the attention it deserves, and see no reason to change this opinion. The same doctrine has been before the United States court of this district upon this patent, 1 McLean, 533; and reviewed by the Supreme Court, 15 Pet. 93; and the same conclusion is adopted and defended by those tribunals. The plaintiff therefore makes no case for relief, and his bill must be dismissed.

Bill dismissed.