source: Caselaw Access Project

author: *G-holson, J.

license: Public Domain

text:
    George W. Ewers and others v. Daniel Follin and others.
    1. By the provisions of the 10th section of the act regulating descents, passed Eebruary 24, 1831, when an estate descended to nephews and nieces, legal representatives of brothers and sisters, no brother nor sister of the intestate surviving, the nephews and nieces took per capita; and if a nephew or ■ niece had died before the intestate, leaving children, such children took per stirpes the share of the deceased parent. This rule has not been altered by the 5th, 6th, 7th, and 8th sections of the present act regulating descents. The effect of the present act is to extend, not to limit, the rule prescribed in the 10th section of the act of 1831.
    2. H. died intestate, without issue, and nev?r having been married, seized of an estate acquired by purchase, leaving no brothers nor sisters, but three children of one brother, four children of another brother, eight children of one sister, and two children and two grandchildren of another sister. Held, that partition should be made by dividing the estate into eighteen shares, each nephew and niece taking one, and the two children of the deceased nephew one.

      ^Petition for partition. Reserved in the district court of Richland county.
    The petition in this case states that Hannah G-regg died in the year 1855, seized of certain real estate described, intestate, without issue, and never having been married; that the intestate had two brothers and two sisters, all of whom she survived; that one brother, Thomas, left three children; the other brother, John, left four children; one sister, Martha, left eight children; and the other sister, Ann, left three children, one of whom died before the intestate, leaving two children, who survived the intestate. Thus the parties claiming partition are the three children of Thomas, the four children of John, the eight children of Martha, the two children and the two grandchildren of Ann, all of whom survived the intestate.
    The real estate came to the intestate, not by descent, devise, or deed of gift, but by purchase. It is claimed on the part of the petitioners, who are the eight children of Martha, that the estate should be divided into eighteen shares among the nephews and nieces of the intestate, the two grandchildren of Ann taking the share of their deceased parent. It is claimed, on the part of the other defendants, that the estate should be divided into four shares, and that the descendants of the brothers and sisters of the intestate should take the share which their parent or ancestor would have been entitled to claim, had he or she survived the intestate. The court of common pleas decided in favor of the latter view. An appeal was taken to the district court, and the question reserved for decision to this court.
    No argument was submitted on either side.

      Vance & Smith, for petitioners.

      Geddes & Burns, for defendants.
   *G-holson, J.

The act regulating descents, i:>assed 24th February, 1831, in the case of an estate which came from an ancestor by descent, devise, or deed of gift, after providing for a descent to the children of the intestate, the brothers and sisters of the intestate, etc., also provides for the brothers and sisters of the ancestor from whom the estate came, or their legal representatives. In the case of an estate which came not by descent, devise, oi deed of gift, but by purchase, the brothers and sisters named are those of the intestate. The tenth section of that act provided, that, “when any of the before-mentioned children, brothers, sisters, or their legal representatives, in the same degree of consanguinity or kindred, come into partition of any real estate, they shall take per capita; but where one or more of them are dead, and one or more of them are living, the issue of those dead shall have a right to partition; and such issue, in such case, shall take per stirpes.” Under this provision, the parties in this case would be included as Jegal representatives of the brothers and sisters of the intestate. They are in the same degree of consanguinity or kindred — all either living nephews and nieces of the intestate, or children of a nephew deceased; the former would take per capita, the latter per stirpes.

Such would have been the rule applicable to this case, before the act to regulate descents, passed 14th March, 1853. In that act, the tenth section of the act of 1831 is not, in terms, re-enacted. In its stead are the 5th, 6th, 7th, and 8th sections of the act of 1853. The 5th and 6th sections provide, in express terms, for the children of the intestate, in the two cases, where there are living children and no issue of deceased children, and where there are living children and also issue of deceased children. In the former case, the children take per capita; in the latter, a representation per stirpes is allowed. The act, in terms, provides for no other ease; but the 6th and 8th sections provide that the same rule, prescribed in the 5th and 6th ^sections, shall apply in other cases. In what other cases, is the question to be solved ?

There is some ambiguity arising from the language employed in the 6th section, which has probably led to the reservation of the question in this case. It might, upon a first inspection of that section, be supposed that the “ descendants ” to which it refers, were the lineal descendants only of the intestate, such as grandchildren and great-grandchildren; but a more careful examination shows the contrary. It will be seen that in the 6th section children as well as grandchildren and great-grandchildren are named, which, if the lineal descendants of the intestate alone are intended, would have been unnecessary, the children of the intestate having been provided for in the 5th section. The concluding language of that section also shows, that descendants, in the sense of those to whom the estate descends, were in the contemplation of the legislature. Its provisions are to apply “ so that the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be.”

Our conclusion is, that the legislature, instead of limiting the rule as provided in the tenth section of the act of 1831, intended to extend and apply it to every case in which an estate was to be divided among a class of descendants, whether their consanguinity to the intestate be lineal or collateral. The partition will, therefore,_ be ordered, in accordance with the claim of the plaintiffs, into eighteen shares, of which the nephews and nieces of the intestate will each be entitled to one, and the two children of the deceased nephew will together be entitled to one.

Brinkerhoee, C. J., and Scott and Sutliee, TT., concurred.

Peck, J., was absent.


author: Sutliff, J.

text:
    *Rachel Welch v. Valentine S. Buckins and others.
    Where A conveys land to B in fee, and B at the same 'time delivers to A a mortgage to secure the purchase money in whole or in part, the technical seizin of B does not confer upon B’s wife a contingent right of dower in the land, as against those deriving title at judicial sale of the land on the mortgage, although she did not join her husband in executing the mortgage.
    The rule is the same, whether A himself conveys the land to B, or procures C, who holds the legal title, to do so.
    Petition for dower. Eeserved in Stark coupty.
    The petitioner claims dower as the widow of Osee Welch. The defendants resist her claim upon the following state of facts:
    In 1836, William Henry, being the owner of the land, sold the same, by written contract, to Solomon Lind, but no conveyance was made to him.' On the 11th of July, 1839, Lind transferred the contract to said Osee Welch and John Eoutzong, and, on the same day, procured Henry to make a deed directly to Welch and Eoutzong in fee. The deed was so made; and was held by Lind until the 15th of the month, when he delivered it to Welch and Boutzong-, they, at the same time, delivering to Lind a mortgage on the land, to secure to him a, balance of the amount they had agreed to pay him for it. The petitioner did not join her husband, Welch, in the execution of the mortgage.
    In September, 1840, an order of sale issued from the court of common pleas of Stark county, under a decree rendered in foreclosure proceedings, previously instituted by Lind on said mortgage; and in November, 1840, the land was sold, on said order of sale, to Alfred Douglass. The sale was confirmed by the court at the November term, 1840, and the sheriff was ordered to make a deed in fee simple to the purchaser, which he did. The defendants derive their title, through intermediate conveyances, from this purchaser at judicial sale.
    *2T. P. Puntar, for petitioner.

      Pease & Church, and Alexander Bierce, for defendants, insisted that the petitioner was not entitled to dower, and cited Clark v. Monroe, 14 Mass. 351; Cunningham v. Knight, 1 Barb. 399; Gammon v. Freeman, 31 Maine, 243; Gillman v. Moore, 4 Leigh, 30; Stowe v. Tiff, 15 Johns. 458; Holbrook v. Finney, 4 Mass. 566; 4 Kent’s Com. 38.
   Sutliff, J.

The petition is filed under the statute of January 28, 1824, which provides that “the widow of any person dying, shall be endowed of one full and equal third part of all the landsj tenements, and real estate of which her husband was seized as an estate of inheritance at any time during the coverture,” etc.

It has always -been held, in this state, that a mere technical seizin, without a beneficial interest in the estate, is not sufficient to entitle the widow to dower. Thus, when the husband, during coverture, has purchased lands with the money of another, and has taken the title in his own name, under such circumstances as to raise a resulting trust in favor of the party whose money was so invested, it has been held that the widow of the husband so seized was not entitled to dower. Derush and wife v. Brown et al., 8 Ohio, 412.

It has also been held, that where the husband purchases lands, takes a conveyance, and mortgages the same back to secure the purchase money, the claim under the mortgage is superior to the claim of tho widow for dower. Rands and wife v. Kendall, 15 Ohio, 671; Greene v. Greene, 1 Ohio, 335. And the same doctrine has been held in other states. -See the cases of Stowe v. Tiff, 15 Johns. 458; Gale v. Ward, 14 Mass. 352, and other cases to the same effect.

The fact that the conveyance to Osee Welch and John Routzong was made by William Henry, instead of the same having been made by Henry to Lind and by Lind *to them, does not at all affect the case. The substance and not the form, merely, of the transaction, is to be regarded. And viewed in this light, the transaction is simply the conveyance by the vendor Lind, and receiving back from his grantees a mortgage for the security of the purchase money. The money so secured by the mortgage was not paid, and the lands were subjected, under such mortgage, to the payment. The defendants hold under such mortgage sale. Theirs is, consequently, the title held by the mortgagee, and superior, in equity, to the claim of the petitioner.

The petition must stand dismissed with costs.

Br.inker.hoee, C. J., and Scott and Gholson, JJ., concurred.

Peck, J., was absent.


author: Scott, J.

text:
    Nahum M. Childs, Executor of Henry A. Childs, deceased, v. Abel J. Updyke.
    An executor or administrator has the power, at common law, to submit to arbitration a disputed claim against the estate which he represents.
    This power is not affected by the provisions of the statute which authorize the submission of such disputed claims to referees.
    In error to the district court of Knox county.
    The plaintiff in error brought the original action, in this case, to recover tho amount of an account for services rendered by his testator, in his lifetime, for the defendant. His claim amounted to $173.75.
    The defendant answered, setting up, among other things, that by the agreement of the parties, all the items of plaintiff’s claim had been previously submitted to arbitration, and that by the award made therein, a balance of thirty ^dollars only had been found [334 due to the plaintiff, as executor,-upon his said claim, which sum he had tendered to the plaintiff, pursuant to the terms of the award, and had ever since been ready and still offered to pay.
    To this part of the answer the plaintiff replied, admitting the agreement to submit to arbitration, and the award made in pursuance thereof, as claimed by defendant, but averring that such reference was not binding upon either of the parties, because the agreement to refer was not approved, either by a justice of the peace, or by the probate judge of the proper county, as prescribed by statute.
    This replication was, on demurrer, held insufficient by the court. The other issues in the case were thereupon withdrawn by the parties, and the sum tendered having been paid into court, for the use of the plaintiff, judgment was rendered against him for costs. Upon petition in error, this judgment was affirmed by the district court; and the plaintiff now seeks to reverse this judgment of affirmance.

      EL. B. Ckirtis <& Scribner, for plaintiff in error,
    claimed, that whatever powers executors or administrators possessed at common law, enabling them to submit controversies to arbitration, such powers are regulated, modified, and changed by our statute pointing out the duties and regulating the action of persons holding that relation. That they possess no power to make a submission except such as is conferred upon them by the statute under which they act; and that unless the mode of procedure there pointed out is followed, the estate is not bound by the attempted exercise of the power, any more than any other principal would bo bound by the unauthorized act of his agent.
    To show that great confusion, perplexity, and difficulty must arise upon the subject of arbitrations, if the common law and statute upon the subject are to be treated as being in force, the following authorities were cited: 2 N. & M. 328; 2 U. S. Dig. 387, sec. 619; 402, see. 949; 2 Port. *33; Minor, 206; Dana v. Prescott, 1 Mass. 200; Thomas v. Leach, 2 Mass. 152; Sec. 1 Toml. Law Dict. 142, 143; 3 East, 157; 8 East, 38; 3 Cowp. 444; 4 U. S. Dig. 136, sec. 74; 26, 143; sec. 250; also sec. 249; 6 Shep. 255; Carey v Comm’rs of Montgomery county, 19 Ohio, 245.

      Vance & Smith, for defendant in error.
   Scott, J.

That an executor or administrator has the power, at common law, to submit to arbitration a disputed claim against the estate which he represents, is, we think, unquestionable. An important part of the duties which he is appointed to perform is the payment of the debts due from the estate. In the discharge of this duty, he must first ascertain the extent to which the claims presented for payment are just and valid. This he may do, if he and the creditors can so agree, either by means of arbitration or without it. And by such acts, done in good faith, the estate must be bound.

But it is claimed by the plaintiff in error that whatever power executors or administrators possessed, at common law, enabling them to submit controversies to arbitration, that power is regulated and modified by the statute, and can only be exercised accordingly. The provision relied on is found in section 262, amendatory of the “ act to provide for the settlement of the estates of deceased persons,” passed March 23, .1840 (Swan’s Stat. 403), and reads as follows:

“That if the executor or administrator doubt the justice of any claim presented or verified as provided for-by section eighty-five of an act to provide for the settlement of the estates of deceased persons,’ passed March 23, 1840, he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy to three disinterested persons, who, if the claim does not exceed one hundred dollars, shall be approved of by a justice of the peace of *the county in which the parties, or either of them, reside; or if the claim exceeds one hundred dollars, the referees shall be approved by the probate judge of such county.”

This amendatory section was intended as a substitute for the original 86th section of the act amended, which was at the same time repealed. To understand its effect, we must therefore read it in connection with the sections which follow on the same subject, in the act amended. Swan’s Stat. 377. These sections provide, substantially, that when the amount of the claim so referred does not 'exceed one hundred dollars, the agreement of reference and the approval of the referees may be filed with such justice of the peace as the parties may agree upon, who shall thereupon docket the cause, appoint a day of trial, cite the referees, subpena witnesses, and proceed to the trial of the cause, and render judgment upon the finding of the referees. But if the claim so referred exceed one hundred dollars, the agreement of reference and approval of the judge may be filed with the clerk of the court of common pleas of the county in which the parties, or either of them, reside, and said clerk shall thereupon docket the cause, and enter a rule referring the matter in controversy to the persons so selected. The referees shall thereupon hear and determine the matter, and make their report thereon to said court. This report the court may set aside, or confirm and render judgment thereon, which shall be valid and effectual, in all respects, as in other cases. Swan’s Stat. 377, original sections 87, 88, 89. The manifest object of these provisions was to furnish a mode of trial, a cumulative remedy, which, by consent of parties, the administrator might adopt, instead of an ordinary civil action. In this mode of trial, the award or report of the referees stands as the verdict of a jury, on which judgment may be summarily entered. To give it this effect, the requirements of the statute must be substantially pursued, and therefore the referees must be approved by the proper officer.

*But this cumulative remedy does not, as we think, take away or affect the common-law right of the parties to submit the matter in dispute between them to arbitration. The award rendered in such common-law arbitration, has no judicial force. It operates neither as a judgment nor as the verdict of a jury. The failure to perform it may constitute a cause of action, or its performance may furnish a good defense in a subsequent suit between the parties on the same subject-matter. But no judicial action can be had upon it without pleadings as in other cases.

The defendant in this ease did not ask that the award should be regarded as the report of referees made pursuant to statute. He simply interposed it, with tender of performance, as a matter of defense in the pending civil action; and this, we all think, he might properly do.

Judgment affirmed.

Brinkerhoee, C. J., and Sutliee and Gholson, JJ., concurred.

Peck, J., was absent.


author: Brinkerhoff, C. J.

text:
    Peter P. Lowe v. The State of Ohio.
    1. The “ charge” mentioned in the concluding clause of the first section of the act of February 24, 1834, 11 declaratory of the law concerning contempts of court,” refers to contempts generally, whatever they may be, as defined in that section; and such charge must be stated in writing, and the accused “have an opportunity to be heard in his defense by himself or counsel,” before a final sentence or judgment can be legally given against him, unless he do some act which may be fairly held a waiver of the formalities thus prescribed for his benefit.
    2. The clause of the statute prescribing these formalities does not refer to summary verbal orders of arrest for misbehavior in the presence of the court, “ or so near thereto as to obstruct the administration of justice,” nor to attachments for contempt in other cases, where such arrest or attachment is employed '“'in the nature of mesne process, for the purpose of bringing the accused party into court, or of holding him in custody until the prescribed formalities, preliminary to the award of final punishment for the contempt, can be conveniently instituted.
    In error to the district court of Montgomery county.
    This is a writ of error prosecuted here to reverse the judgment of the district court of Montgomery county, affirming on error a judgment of the common pleas of that county, by which the plaintiff in error was adjudged to pay a fine of twenty-five dollars for an alleged contempt of court. The facts of the case are embodied in the journal entry of the court of common pleas, which is as follows:
    “ The court having this day announced the sentence that a fine of twenty-five dollars was assessed against Peter P. Lowe, for his contempt, as set forth in the last foregoing case No. 35, and thereupon the said Peter P. Lowe, in open court, and in the hearing of the court and people, contemptuously declared and remarked, that the court might double the fine aforesaid if it saw fit; which remarks the court held to be a further contempt of court, and do thereupon sentence the said Peter P. Lowe to pay a further fine of twenty-five dollars, and order the clerk to make an entry thereof on the minutes of the court, and the same is done accordingly. It is therefore considered that the State of Ohio recover of the said Peter P. Lowe the said fine of twenty-five dollars, assessed in manner and form as aforesaid; also the costs herein exjiended, taxed at $ — —.”

      It is assigned for error, in substance:
    1. That it does not appear from the record that the charge against the defendant below for the supposed contempt was ever reduced to writing; but that it is apparent from the record that such charge never was reduced to writing, and that the defendant below was not allowed to bo heard in his defense by himself or counsel.
    *2. That the manner of assessing the fine is contrary to the statute in such case made and provided.

      F. J. Forsyth, for plaintiff in error.

      David A. Sunt, prosecuting attorney, for the state.
   Brinkerhoff, C. J.

The first section of the act of February 24, 1834, “declaratory of the law concerning contempts of'court” (Swan’s Bev. Stat. 188), and which governs this case, is .in the following words:

“That the power of the several courts of the State of-Ohio to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except to the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice; the misbehavior of any of the officers of the said courts, in their official transactions, and the disobedience or resistance by any officer of the said court, party, juror, witness, or any other person or persons to any lawful writ, process, order, rule, decree, or command of said courts, which charg’e shall be stated in writing, and the accused shall be heard, in his defense, by himself or counsel.”

We think it sufficiently and fairly apparent from the record, that immediately upon the utterance, by the plaintiff in error, of the words constituting the alleged contempt, without the. charge being “ stated in writing,” and without anything being said or done by him amounting to a waiver of the formality which the statute prescribes, the sentence of the court was at once announced, and judgment thereupon entered accordingly. On this state of the case, we hold:

1. The “ charge mentioned in the concluding clause of the section of the statute above quoted, refers to contempts generally, whatever they may be, as defined in that section;” %nd such charge must be “stated in writing, and the accused” have an opportunity to be “heard in his defense, by himself or counsel,” before a final sentence and judgment can be legally given against him, unless he do some act which may be fairly held a waiver of the formalities thus prescribed for his benefit.

2. The clause of the statute prescribing these formalities does not apply to summary verbal orders of arrest for misbehavior in the presence of the court, “ or so near thereto as to obstruct the administration of justice,” nor to attachments for contempt in other cases, where such arrest or attachment is employed in the nature of mesne process, for the purpose of bringing the accused party into court, or of holding him in custody until the prescribed formalities preliminary to the award of final punishment for the contempt can be conveniently instituted.

Judgment reversed.

Scott, Sutliee, and G-holson, JJ., concurred.

Peók, J., was absent.


author: Gholson, J.

text:
    Joseph Masury v. William P. Southworth et al.
    1. An assignee of a reversion, having also assigned to him, by the terms of his contract of conveyance, the benefit of the covenants in a lease, may bring an action in his own name for a breach of such covenants, as the party beneficially interested, under the code of civil procedure, which, in this respect, supplies the statute 32 H. 8, cap. 34.
    2. A covenant to insure, when the money realized, in case of loss, is to be ex- - pended in rebuilding or repair, is such a covenant as may run with the land.
    3. When such a covenant to insure has for its object a building to be erected after the date of the lease, but which, when erected, is to be used by the lessee, and is an essential ingredient in the agreement of the parties for the creation of the estate, it is not indispensable to make such a covenant run with the land, that “assignees” should be expressly named; but the covenant being *one which may be annexed to the estate, and run with the land, equivalent words, or a clear intent shown by the whole instrument, may suffice.
    In error to the district court of Cuyahoga county.
    The plaintiff in error brought an action against the defendants in error, in the court of common pleas of Cuyahoga county. The petition in that action stated, that on the 25th day of February, 1854, S. A. Powers and Joseph O. Foster executed a lease, which was duly acknowledged and recorded. By this lease, a lot in the city of Cleveland, was demised by Powers to Foster, for a term beginning on the 1st day of April, 1854, and ending the 1st day of July, 1867. The petition alledged “that, by one of the covenants in said lease, the said Foster was to keep said leasehold premises fully insured for the benefit of Powers, and that, if at any time the said Foster should fail to keep the same so insured, that the said Powers might cause an insurance to be made on said premises at the expense of said Foster, and in the name and for the benefit of said Powers. And by a further stipulation in said lease, it was further agreed that, in case that said building should burn down during the continuance of said lease, that the said Foster should have the benefit of said insurance money for the purpose of rebuilding said premises, in case he should elect to rebuild the same.” The petition further stated, that on the 14th of October, 1854, “ Powers assigned and sold to plaintiff all his interest in said lease; ” and “ that the interest of Foster in said premises and lease was ' sold under an order of court to satisfy judgments against said Foster, and that the defendants became the purchasers of said Foster’s interest in said premises at said sale.” It is also stated, that the defendants went into possession of the said premises; that at the time they went into possession, a policy procured by Foster was running; that when it expired the plaintiff notified the defendants to insure the premises, which they neglected and refused to do. The amount «which the plaintiff claims to recover is what it had cost him to procure an insurance on the premises.
    The lease is referred to as a part of the petition. It states that the lease of the lot is made “ at and for the rents and conditions hereinafter specified; to have and to hold the leased and demised premises upon the terms and conditions hereinafter specified.” Among the terms and conditions so specified is found the covenant to insure, stated in the body of the petition. In connection with that covenant, and preceding it, was one that the lessee “ will erect upon said premises a good and substantial brick building, the height of which shall be equal to that of the building on Bank street, known,” etc.; which covenant contained a description of the size and style of the building, and the use to which it was to be put — the rooms on the ground-floor to be “ used and kept for store-rooms, during the continuance of this lease.” It is this building by the terms of the lease, which is to be kept fully insured.
    To the petition of the plaintiff, the defendants filed a demurrer, upon the ground, that it did not contain facts sufficient to constitute a cause of action.
    This demurrer was sustained by the court of common pleas, and judgment entered against the plaintiff.
    To reverse this judgment a petition in error was filed in the district court, where the judgment was affirmed.
    To reverse the judgment of affirmance in the district court, upon leave obtained, a petition in error was filed in this court.

      L. O. Thayer, for plaintiff in error:
    1. The defendants are purchasers of Foster’s leasehold estate, at a judicial sale, taking thereby his interest only in the premises. Being permitted to take all the benefits resulting from the lease, 'they should be made to sustain all the burdens and liabilities growing out of the covenants therein, which Foster would have had to bear if he had retained the premises; among those burdens is Foster’s ^engagement to keep the building in good repair, and at the expiration of the period to surrender it to Powers without further consideration. That he might be the more able to fulfill this covenant he was to keep the property fully insured in the name of Powers. Platt on Cov., 3 Law Library, 29.
    2. The covenants to build and keep the buildings at all times fully insured, were, in part, the moving consideration that induced Powers to execute the lease to Foster, and are in the nature of compensation for the use and occupation of the premises, and therefore are covenants running with the land and binding upon the assignee, though not named. Norman v. Wells, 17 Wend. 136, and the cases therein cited; 1 Barn. & Cress. 410; 19 Pick. 459, 464, 465.
    If the covenant to build runs with the land, then is the covenant to keep the building, when erected, fully insured, a covenant binding upon the assignees, for it is in effect but a modified covenant to repair and rebuild. Covenants to repair and rebuild are admittedly covenants running with the land. Being of this character, it would run with the land as would an ordinary and absolute covenant to repair and rebuild. 6 Gill & Johns. 372.
    3. This case does not fall within the class of cases contemplated by the first resolution in Spencer’s case, 5 Coke, 16, as a case of a covenant relating to a thing not in esse, and therefore not binding upon the assignee not named; for if it should be so held, then all covenants to repair and rebuild would for the same reason fail to bind the assignee, for it can not be said that either relate to a thing in esse.

    The reason of the rule that a covenant to build in futuro is a covenant not running with the land and not binding upon the assignees not named, is because a breach occurs at once, and as soon as broken becomes a mere chose in action. But can this be said of this covenant? The covenantee actually built the building and actually procured the first policy of insurance. The covenant to ^insure can not be said to be broken until the first covenant to build is broken, and that no't being broken, but actually performed, then this was not broken, while Foster held the property.
    The building being erected and policy of insurance on it in full force at the time the defendants became the purchasers, the right of Powers and Foster under that lease was ascertained and determined. The defendants are therefore precluded from setting up 1 this defense. If the building had burned down during the life of that policy they could, if they had elected to rebuild, have claimed the insurance money; if they had not so elected, Powers would certainly have been entitled to it against any one.
    4. The covenant in this lease to insure, stipulating, as it does, that the money received from such insurance may be laid out in rebuilding on the premises, is in se a covenant running with the land. Platt on Cov., 3 Law Lib. 81; 6 Gill & Johns. 372; Vernon & Smith, 5 Barn. & Ald. 1; Taylor, Landlord and Tenant, 167; Norman v. Wells, 17 Wend. 136.

      Kelly & Griswold, for defendants in error:
    1. The petition failing to show either privity of estate or contract between the parties, the demurrer was well taken.
    2. If, however, we are incorrect, and it does appear that the defendants are in the possession of said premises, and are chargeable as the assignees of Foster, we still claim that no action can bo maintained against them on this covenant to insure. The simple covenant to insure buildings on demised premises, is clearly a collateral undertaking. If, however, by the terms of the covenant the insurance money is required to be expended iu rebuilding or repairing the building destroyed or damaged by" fire, then it becomes a covenant 11 extending to the thing in esse, parcel of the demise,” and runs with the land. The fact that the money is required to be expended on *the premises, is what gives it this character. This is the doctrine of all the cases cited by the plaintiff in error. The reasoning is somewhat forced, yet, likening it to the covenant to repair or rebuild, it is held to be a covenant touching the land, and to run with it. But the covenant of this lease entirely fails to come within the rule. The covenant is entirely for the benefit of the landlord, and not for the land. It does not, therefore, run with the land, nor bind the assignees. It is true, there is a clause in the lease providing, though not expressed in very clear language, that in case the building is destroyed by fire, and Foster elects to rebuild, he is to have the benefit of the insurance money. But this is a mere optional matter with Foster. If he does not elect to rebuild, the money goes into the pocket of the landlord. There is nothing in the lease requiring the money to be expended in rebuilding or restoring the building on the premises, in case of its destruction by fire.
    If, however, it can be said to be a covenant running with the land, it has still another defect fatal to the cause of the plaintiff. It will be observed that no assigns are named in the lease. It appears from the lease, made p art of the petition, that the building to bo insured was not on the premises at the time of the demise. The lease, among other things, provides for the erection afterward of this building upon the demised premises, and this covenant to insure relates to this building thereafter to be built. This brings the case at bar precisely within the first rule in Spencer’s case, 5 Coke, 16. Indeed, these defendants, if in possession under Foster’s lease, are precisely in the same condition as the defendants in Spencer’s case. The building was to be newly built after the demise, the assigns were not named, and the latter clause of the first rule is strictly applicable: “ In the case at bar, the covenant concerns a thing not in esse at the time of the demise made, but to be newly built after, and therefore shall bind the covenantor, his executors, and administrators, *and not the assignee, for the law will not annex the covenant to a thing which hath no being.”
   Gholson, J.

In consequence of the rule of the common law, that a chose in action was not assignable, the assignee of a reversion could not maintain an action upon a covenant contained in a lease, against the lessee, though the covenant might run with the land. There was a distinction made between the assignee of the reversion, and the assignee of the lease; and while-tho latter might maintain, and. be liable to, an action upon such a covenant, it was different as to the former. To remedy this, the statute of 32 JEL 8, cap. 34, was enacted, which gave, generally, to the assignee of the reversion the same right of action that the lessor had, upon the covenants in the lease. But this statute did not extend to more personal and collateral covenants; it embraced those only which touched and concerned the thing demised.

It has been decided by this court, that the statute of 32 H. 8, cap. 34, is not in force in this state, and that an assignee of the reversion can not maintain an action upon tho covenants in the lease. But if the covenant be assignable in equity, so that an action might have been maintained in tho name of tho assignor, or relief obtained by a suit in equity, our code of civil procedure operates upon the remedy, even more extensively than the statute of 32 H. 8, cap. 34. For whether the covenant be collateral, or inhere in the land, if it be assigned, the assignee not only may, but, as the party beneficially interested, must sue in his own name. For example, if there bo a contract by a lessee to build a house or a wall upon tho land, at any time, and whether to be used by tho lessee or not, the lessor, in selling tho reversion, may also assign tho benefit of such a contract, and the action of the assignee for a breach would, under tho code, be in his own name.

In the present action, it may be inferred from the pleadings *that the lessor, Powers, has assigned to the plaintiff the covenant to keep tho house insured for tho benefit of the. lessor and lessee. This covenant Powers might well assign; a.nd the plaintiff, being the assignee of tho reversion, and entitled also to the benefit of the covenant, might bring an action for its breach, in his own name, against the lessee of Powers. But does this right of action extend to the assignee of the lessee ? It may be that the lessee would be liable on the covenant, but not the assignee of the lessee. There is a manifest difference between assigning a right of action and creating by assignment a liability to an action. The latter must generally assume the shape of a contract to indemnify, and could not usually affect the rights of the party holding the original claim. It would be really a new contract, and not in the nature of an assignment of another contract. In this view of the liability of an assignee of the lease to the assignee of the reversion, the principle governing the assignment of a chose in action, or the benefit of a covenant, must be thrown out of view, and the inquiry be made on other principles and considerations.

The covenant must run with the land — must be so connected with, be attached to, and inhere in, the land, that the assignee of the reversion or the assignee of the lease, as the case may be, would have a right to the advantage of it, or be bound to perform it. Such is the general principle; but whether a covenant so runs with the land, must depend, in the first place, upon the nature and character of the particular covenant, and of the estate demised, as connected with the respective rights of lessor and lessee, in reference to the subject-matter of the covenant; and, in the next place, upon the intent of the parties in the creation of the estate, as shown by the language of the instrument creating it, construed with reference to the relative position of the parties, and to the subject-matter to which their contract and conveyance is to be applied. Tbe nature and character of the covenant may be such *that it may run with the land; and yet, if it be clearly the agreement of the parties that it shall not so run, it would not be annexed, in despite of the agreement so expressed. And, on the contrary, however clearly and strongly expressed may be the intent and agreement of the parties, that the covenant shall run with the land, yet, if it be of such a character that the law does not permit it to be attached, it can not be attached by the agreement of the parties, and the assignee would take the estate clear of any such covenant.

From this view, it is obvious that, as to the first point, the nature and character of a covenant which may inhere in the land, we are to look at the reason and policy of the law; and, as to the second point, whether it does so inhere as to give a right and create an obligation in the case of assignees, we must look at the intent of the parties creating the estate. The law must say that it may inhei’e, and the parties must say that it shall inhere.

The first point depends upon a question of public policy. It would be mischievous and inconvenient'to allow every species of covenant which wit or caprice might devise, however collateral to the use of the land demised, to be connected with the estate. Therefore, from the earliest times, the distinction between such covenants as may run with the land, and such as are collateral and can not, has been taken and maintained. It has been a matter of some dispute, whether a covenant to insure might run with the land. A covenant, to run with the land, must have for its subject-matter something which sustains the estate and the enjoyment of it, and is therefore beneficial both to lessor and lessee. A covenant to insure, which had for its object the benefit of the lessor only, as where the money paid in the event of a loss would go to him, has been regarded as collateral; but if the money is to be applied to repair or rebuild, then it is in its character like a covenant to repair, which may run with the land. *Under this view, we think the covenant to insure, in the present case, was one which might run with the land.

The second point is one which, in its application to the present case, in view of the decisions and dicta in England and in this country, presents considerable difficulty. When any effect, such as to pass an estate or create an obligation, is dependent upon the intent of parties as expressed in a writing, it is an important inquiry whether the law has prescribed certain words or expressions as essential to be used to indicate that intent. If it bo so, those words must be used, and none others will suffice. The word “ heirs,” in the case of a conveyance to create an estate in fee simple, is an instance. But where the law has prescribed no such words, then the intent of the parties must be ascertained from the whole instrument, inteiqrreted and construed by just and proper rules. In .the latter class of cases, as a general rule, whether the intent be very clearly and plainly expressed, or be ascertained after some difficulty by the rules of construction, can make no difference. It is not a question of degree. The intent is either expressed or it is not, and the effect is the same without reference to the degree of clearness.

In determining whether a particular covenant was intended to run with the land, the fact that its particular subject-matter was not in existence at the time the estate wTas created, is undoubtedly very important and material, and in many instances might be regarded as a controlling consideration. In such a case, though the subject-matter be connected with the land, as a house or wall to be built upon it at a future day during the term, yet if nothing more appeared to indicate the intent, it might be regarded as a personal covenant, and not running with the land. If, however, an intent be shown that the covenant shall run with the land, by binding the “assigns ” in so many words, then the covenant does run with the land, and the assignee of the lease is bound. Thus it was resolved, in the leading case upon this subject: “If the lessee had ^covenanted for him and Ms assigns that they would make a new wall upon some part of the thing demised, that forasmuch as it is to be done upon the land demised, that it should bind the assignee; for although the covenant doth extend to a thing to be newly made, yet is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words.” Spencer’s case, 5 Coke, 16 b.

In the first resolution of the same case it had been said: “ When the covenant extends to a thing in esse, parcel of the demise, if the thing to be done by force of covenant is in any manner annexed and appurtenant to the thing demised, it shall go with the land and bind the assignee, although he be not bound by express words; but where the covenant extends to a thing which is not in being at the time of the demise made, it can not be appurtenant or annexed to the thing which hath no being.” And it was further said as to the ease at bar: “ The covenant concerns a thing (a wall) which was not in esse at the time of the demise made, but to be newly built after, and therefore shall bind the covenantor, his executors, and administrators, and not the assignee, for the law will not annex the covenant to a thing which hath no being.”

Between the first and second resolutions in Spencer’s case, there is an apparent inconsistency; and the unsatisfactory character of the second resolution has been a subject of remark and comment. In the first resolution it seems to be considered that the law will not permit such a covenant as the one under consideration — a covenant to build a wall upon the land demised — -to be annexed to the estate, and run with the land. And if this be so, on the ground that it is to be regarded as a collateral covenant, not proper to be annexed to the land, then the concluding part of the second resolution shows that the agreement of the parties, whether expressed by the word “ assigns ” or otherwise, could not make it a covenant .running with the land and binding upon the assignee. *Yet, in the second resolution, it is said, of a supposed case, if the lessee had covenanted for him and his assigns, it would bind the assignee by express words; and thus showing, apparently, in a ease in which it had been before said, that the covenant could not be appurtenant or annexed to the land, that the parties might make it so. It is to be observed, however, that in the second resolution an element is introduced, not found in the statement of the case in the first resolution, viz: That the building of'the wall would be bene* ficial to the estate demised, and the assignee would have the benefit of it. The result, then, would be, that if the thing to be done upon the land, though not existing at the time of the demise, would be of a permanent nature, connected with the use and enjoyment of the land, and beneficial to the assignee, an intent that it should run with the land and bind the assignee, shown by naming him in the deed, would be effectual.

Thus understood, the two resolutions are not inconsistent, and there may have been some omission in expressing the second resolution which has led to the apparent inconsistency. The question, then, arises, whether an intent to bind the assignee, in the case of such a covenant, may be effectual without the word assigns ?” Whether that word is used in the technical sense, and can not be supplied by other words. If, for example, in the case stated, instead of “ for him and his assigns,” it was said “ for him and any other person or persons to whom the estate demised shall be conveyed,” or other equivalent words.

Our conclusion is, that the word assigns ” is not used in a technical sense and as the only word appropriate for the purpose, but that equivalent words, or any clear manifestation of intent will suffice. We think the real question must be, the covenant being one which may be annexed to the estate and run with the land, whether such was the intention of the parties, as expressed in the deed. The important consideration is, whether the covenant is annexed to the estate and runs with the land. If this be so, the rights *and liabilities of those who take the estate and possess the land during the term, flow from a privity of estate, and not from any assignment of right or contract. If the covenant can not, or does not, run with the land, no words of assignment can create a privity of estate ; if a privity of estate be created, no words of assignment are necessary. The word “ assigns ” could only show that the covenant was intended to run with the land, for if the covenant were otherwise attached to the land and the privity of estate created, as in the ordinary ease of covenant to repair, that word is shown by all the authorities not to be requisite to bind the assignee of the lease.

Upon principle and authority, “ the law does not require any particular form of words to constitute such a covenant which shall run with the land.” Trill v. Eastman, 3 Met. 121-124. “Any words in a deed, which show an agreement to do a thing, make a covenant.” Williams v. Burrell, 1 M. G. & S. 402-429, Comyns Dig., tit. Covenant. “ To charge a party with a covenant, it is not necessay that that there should be express words of covenant or agreement. It is enough if the intention of the parties to create a covenant be apparent.” Wolveridge v. Steward, 3 M. & S. 561 (30 E. C. L. 312); Courtenay v. Taylor, 6 M. & G. 851; Williams v. Burrell, 1 C. B. 402-430; Great N. Railway Co. v. Harrison, 12 C. B. 576-609; Savage v. Mason, 3 Cush. 500-505.

In the present case, that the covenant to keep the building fully insured, was intended to accompany the estate in the event of any assignment, is, we think, shown as well by the immediate object in view as by the language. The land demised was a vacant lot to be rendered more productive and valuable by an improvement corresponding with those on other lots in the neighborhood. It was to be improved with a view to permanent and continuous business — the rooms were to be kept and used for stores. That the lot might lie unimproved, or the building after its erection be burned and not be rebuilt, either by lessor *or lessee, was never contemplated by the parties. The language in the instrument is, that the lease was made “at and for the rents and conditions ” specified; and it was to be held “ upon the terms and conditions ” expressed. We feel, therefore, authorized, for the reasons given and for others on which it is not necessary to enlarge, to use an expression of the American annotators on Spencer’s case, and say, that the covenant to insure in this case did not relate solely to something not in esse at the time it was made, but related to the land so directly and in such manner that it may bind an assignee of the lessee. 1 Smith’s Lead. Cas., Am. ed. 177.

We are aware that there are authorities which may be regarded as in conflict with the views we have taken, and there are others by which they ai*e sustained. Among tho former we have not overlooked the recent case of Doughty v. Bowman, 11 Q. B. 444; and among the latter we may name Kellogg v. Robinson, 6 Vt. 276. We do not think proper to cite, much less to review'and compare, the authorities which we have examined. The most of them contain a mere repetition of the resolutions in Spencer’s case. It may be noticed, however, that one of the earlier cases (Bally v. Wells) is differently stated in the reports, and that one statement would strongly favor the view we have taken, while the other might not. 3 Wilson, 25; Wilmot’s Notes, 344; Allen v. Culver, 3 Denio, 296, 297.

There are several objections to the petition of the plaintiff, relied on in argument, other than the principal one which has been discussed ; but we think they rather go to show defects in the statement of a'case than a defective case, and should be reached by motion. The connection between the plaintiff and the defendants should certainly appear with greater clearness, and the amount of insurance, as compared with the value of the building, should also be disclosed.' We are satisfied, however, that the decision of the principal and most important question in a way which removes what would be, if otherwise decided, an insuperable *obstaele to a recovery by plaintiff, entitles him to a reversal of the judgment; so that if, in other respects, by clearer averments and by proof, he can make out his case, an opportunity may be afforded.

Judgment reversed.

Brinkerhoee, C. J., and Scott, Sutliee, and Peck, JJ., concurred.


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    Thomas Thompson v. The State of Ohio.
    1. In describing a bank-bill, in an indictment for uttering and publishing it as true and genuine, when it was false and forged, it is not improper to set out the names and residence of the engravers, as the same appear upon the margin of the bill.
    2. The first section of the act of May 1, 1854, to prohibit the circulation of foreign bank-bills, etc. (Swan’s Rev. Stat. 116), did not exclude such bank-bills from the operation of section 22 of the act of July 1,1835, for the punishment of crimes, but the uttering and publishing false, forged, and counterfeit bank-bills of less denomination than ten dollars upon foreign banks, as true and genuine, was within the provisions of said section 22.
    This is a writ of error to the court of common pleas of Ashland county.
    At the March term, 1855, of the court of common pleas of Ashland county, Thomas Thompson was tried, convicted, and sentenced upon an indictment for uttering and publishing, as true and genuine, a false and counterfeit bank-note, purporting to be a three-dollar note of the Merchants) Bank then in existence in the State of Massachusetts, duly authorized by the laws of that state to issue such notes.
    Upon the trial of the case, Thompson’s counsel objected to the bank-note described in the indictment being given *in evidence by the prosecution, for the reason that the note was described in the indictment as containing the words “Bawdon, Wright, Hatch & Co., New York,” when said words in fact only appear upon the margin of the note. The court overruled this objection, and permitted the note to be- given in evidence; to which Thompson’s counsel excepted. And the jury having returned a ve: diet of guilty against the accused, his counsel filed a motion for a new trial, and in arrest of judgment, which motion was overruled, and judgment entered upon the verdict. To reverse this judgment, Thompson prosecutes this writ of error. And it is assigned for error:
    1. That there was a variance between the bank-bill given in evidence and the one described in the indictment.
    2. That the bank-bill was one'of no value, its circulation within this state being prohibited by statute.

      Bull & Me Garty, for plaintiff in error.

      G. P. Wolcott, attorney-general, for the state.
   Sutliff, J.

The only fact relied upon to sustain the allegation of variance, is that the words “Bawdon, Wright, Hatch & Co., New York,” upon the bill offered in evidence, appeared upon the margin of the bill. The indictment, after the statement that the forged note was “in the letters and figures following,” sets for a copy of the note; and immediately under the signatures of the cashier and president, had expressed, at the foot, the words “Bawdon, Wright, Hatch & Co., New York.” The same words on the original bill (which is made part of the bill of exceptions) appear in the same relative position as expressed in the copy set forth in the indictment. The only objection therefore to these words in the indictment, is to the fact of their being set forth in the indictment, rather than the manner of their being expressed. It is urged by counsel, *that being set forth in the indictment as part of the copy, represents them as material words and part of the bill or note, like the other signatures thereon; whereas, upon inspection of the original bill, it appears, evidently, that these words are no part of the note, but are only designed to represent the names of the engravers of the bill. Therefore, to this argument it might be sufficient to say, inasmuch as the words are the same, and their relative position the same in the copy as in the original, it would follow that there is no variance upon which the objection to the bill being given in evidence could rest. And the fact that the words are no part of tho note, and so immaterial, could not sustain the objection to giving the note in evidence, on the ground of variance. But as a description of the note, like the numbers or letters, the words were very properly inserted in the copy, although not operative words in the bill.

The other objection rests upon section 1 of the act to prohibit the circulation of foreign bank-bills, passed May 1, 1854.

This section provides as follows: “ That from and after the first day of October, in the year of our Lord one thousand eight hundred and fifty-four, it shall be unlawful for any person or persons, firm, or body corporate, to pass, transfer, or circulate, or cause to be transferred or circulated, or to receive or cause to be received, any bank-bill or note of a less denomination than ten dollars, unless said bank-bill or note shall have been issued by, and made payable at, one of the banks of this state, in accordance with the laws of this state; provided, however, that the mere transfer or receiving of such unlawful paper bona fide, for the purpose of sending the same directly out of this state for redemption, shall not be deemed a violation of the provisions of this act.” v

It is urged by counsel on behalf of the plaintiff in error, that by force of this statute, it apjmars to have been imj>ossible that the bank-bill was passed by the accused *with intent “ to prejudice, damage, or defraud,” for that the bank-bill could not, if genuine, be legally passed, or circulated in this state, and was therefore alike worthless, whether true or genuine.

The statute prohibiting the passing foreign bank-bills of a less denomination than ten dollars, for ordinary purposes of circulation within this state, does not destroy the value of such notes. In the hand of the owner such notes still have the value of promissory notes, and are of unimpaired validity against their makers, and retain their value in market without the state. See the case of Starkey v. The State, 6 Ohio St. 267. If, therefore, it were necessary that a-genuine bank-bill should be of real value in order to render one liable for uttering and passing as true and genuine a false, forged, or counterfeit bill, the objection would not obtain in this case. The jury have found from the evidence that the accused did pass such a false and counterfeit bank-bill as described in the statute under which indicted, and with the fraudulent intent expressed; and we think the record shows their finding sustained by the evidence. The judgment of the court of common pleas upon that verdict was, therefore, correctly pronounced, and is affirmed by this court.

Brinkerhoee, C. J., and Soott, Peok, and Gholson, JJ., concurring.


text:
    Aaron P. Ashbrook v. John C. Hite.
    Where a contract is made for the sale of a lot of sheep for a stipulated price per hundred pounds, to be weighed and delivered by the vendor at a specified time and place, fifty dollars of the price to be paid in hand and the residue upon the delivery.of the property, and the vendee, after payment of the fifty dollars in hand, voluntarily and without excuse refuses further compliance with the stipulation? of the contract, and the vendor, not being in default ^previously, sells the sheep to other persons, after the time fixed for their delivery, such resale does not, per se, give the vendee a right to regard the contract as rescinded by the consent of the parties, so as to enable him to recover back the sum paid by him' on the contract.
    In error to the District court of Fairfield county.
    The plaintiff in error was also plaintiff below, and the error assigned is upon the judgment of the court of common pleas, upon an issue of law, raised by a general demurrer to his amended petition in that court in the original action. The facts stated in that petition were as follows : “ That on or about the 11th day of September, Á. D. 1855, he contracted with the defendant to purchase of the defendant, and the defendant agreed to sell to the plaintiff one hundred and twenty-one sheep at the price of $2.20 per hundred pounds gross, to be weighed and delivered at the scales of James Hampson, on or before the 25th day of September, a. d. 1855, and to be paid for, fifty dollars in band and balance on delivery ; and that at the time of making said contract the plaintiff paid to the defendant the said sum of fifty dollars as part consideration for said sheep; that shortly thereafter and before the said. 25th day of September, to wit, on the 17th day of. said month the plaintiff was informed that said sheep wore not sound, but were infected with a disease supposed to be the scab, which materially diminished their value. And thereupon, on the said 17th day of September he applied to the defendant to rescind said contract, and to refund said fifty dollars, so paid by the plaintiff as aforesaid; that the defendant refused to refund said fifty dollars, but afterward, and before the bringing of this suit, said defendant sold and delivered said sheep to other persons. By reason of which premises plaintiff says said defendant became, and is liable to pay to the plaintiff the said sum of fifty dollars, with interest thereon from the said 11th day of September, A. d. 1855. Wherefore the plaintiff asks judgment,” etc.

      286

      *This petition was demurred to, as not stating facts sufficient to constitute a cause of action. The demurrer was sustained by the court, and the defendant had judgment accordingly. This judgment was subsequently affirmed by the district court, and this affirmance is now assigned for error.

      Hunter & Daugherty, for plaintiff in error:
    The legal effect of the allegations of the petition is that the contract was rescinded by the mutual acts of the parties, and, as a consequence, that the plaintiff is entitled to recover back the money paid by him upon it. The rule is that if the purchaser of goods be in default in not paying for and taking them according to his agreement, and the vendor sell the goods to another person, or otherwise convert or dispose of them to his own use, such act is in disaffirmance of the contract, and operates a rescission of it. This, however, does not apply to cases in which the sale is in affirmance of the contract, and made, upon notice to the buyer, merely for the purpose of making the vendor’s lien for the purchase money effective. But in cases of sales by the vendor, as above, in disaffirmance of the contract, if the buyer have paid the purchase money, or a part of it, he is, we maintain, on principle, entitled to recover it back. 1 Parsons on Contr. 191-193, and notes, citing the leading cases. See also 2 Parsons on Contr. 35, and notes, citing Oxendate
      v. Wetherell, 9 B. & Cr. 386; Read v. Rann, 10 B. & Cr. 439; Bowker v. Hoyt, 18 Pick. 555. See also Langford v. Tyler, Salk. 113, cited in Smith on Contracts, with notes by Rawlc, Appendix, 433; and also Hinde v. Whitehouse, 7 East, 558.

      Martin & Schleich, for defendant in error:
    The resale of the sheep did not result in a rescission of the contract.
    The property in the sheep never vested in the plaintiff in error. Chit, on Contr. 6th Amer. Ed. 375 a; *McDonald v. Hewett, 15 Johns. 349; Ward v. Shaw, 7. Wend. 404; Rapeleye v. Mackie, 6 Cowen, 250; Russell v. Nickoll, 3 Wend. 112.
    The time of resale is material. Whatever may be the effect of a resale before the day of delivery, a resale after the day of delivery can not have the effect to rescind. To give it such effect, would make it tantamount to a release — nay, more, paramount to a release, in creating a claim for the value of part performance,' or to the extent of the hand-payment.
    This is the ease of a party willfully in default seeking to recover a hand-payment from a party not in default. The claim is wholly unsustainable. Witherow v. Witherow, 16 Ohio, 238; Ketchum v. Evertson, 13 Johns. 358; Stark v. Parker, 2 Pick. 267; Stephens v. Beard, 4 Wend. 604; McMillen v. Vanderslip, 12 Johns. 165; Lantry v. Parks, 8 Cowen, 63.
   Scott, J.

The question in this case arises upon the sufficiency of the facts stated in the amended petition of the plaintiff to constitute a cause of action.

The petition, it will be observed, does not allege that the sheep were sold by the defendant to other persons before the day fixed by the contract for their delivery to the plaintiff. The allegation is merely that they were thus sold before the bringing of the suit, and the suit was not brought till about four weeks after the time of delivery agreed upon. It would be entirely consistent" with the statements of the petition, to assume that the alleged sale was made a week or a day before suit brought. There is also an entire absence of any allegation that the plaintiff was ready and willing, at the proper time and place, to perform the contract on his part, by accepting the delivery, and paying the residue of the contract price. And the defendant is charged with no such default as a refusal to weigh and deliver the sheep to the plaintiff at the proper *time and place, upon the payment of the residue of the purchase money. Now, as the plaintiff’s right of recovery must rest on the facts stated in his petition, he must recover, if at all, let the facts which are not stated be as they may; and they are, therefore, to be assumed most strongly against him, in determining upon the sufficiency of his petition. We must, therefore, take it for granted that the failure in the full execution of this contract was caused solely by the default of the plaintiff himself; that he, without any excuse, refused to accept and complete the payment for the sheep, as he was bound by contract to do, although the defendant, at the proper time and place, was willing and offered to perform fully on his part.

The question, then, is, whether a subsequent resale of the property by the vendor to another, under these circumstances, will, per se, give the original vendee any legal claim upon him, in respect to the partial payment previously made under the contract.

The plaintiff’s counsel seem to assume, in their argument, that the agreement stated in the petition is such as to constitute a completed sale, and that the property in the sheep, though not the right of possession, passed by the contract to the purchaser. But the petition describes the contract rather as an agreement for a future sale and delivery. He agreed to sell,” etc., “ to be weighed and delivered at,” etc., “ on or before,” etc.; and it is certain that the sheep were to be weighed, and their price thus ascertained before delivery, by the vendor, or at least not by the purchaser alone. Under these circumstances, the rule is, that the property does not pass. 1 Parsons on Contr. 440, 441. Such sale is, at most, but conditional; the weighing and delivery on the one side, and the-payment of the remaining purchase money on the other, are conditions precedent to the passing either of the right of property or-tho right of possession. By the terms of the contract in this case, we have no doubt that the sheep were to be kept until the day of delivery, by the vendor, at his own expíense *and risk. But were it otherwise, the petition evidently does not contemplate a recovery of the value of the sheep as upon an unlawful conversion of them to the defendant’s use. It is not averred generally that the sale was wrongful, nor are facts stated which show it to have been so. It may have been made upon due notice to the vendee, in the proper assertion of the vendor’s lien for the unpaid balance, of the purchase money; and the proceeds may have been insufficient to satisfy the lien. And even if it appeared that the proceeds were more than sufficient to satisfy the lien, yet the plaintiff does not seek to recover the overplus ; but evidently proceeds on the ground that the sale of the sheep by the defendant to other persons, operated, ipso facto, as a rescission of the plaintiff’s contract; and gave him the right to be restored to the condition in which he was before entering into it, by a return of the money paid upon it. It is for this he asks judgment; and this is the main ground taken in argument. Is it tenable? The petition shows, as -.we have seen, that the failure of the parties fully to execute this contract was owing solely to the plaintiff’s default; that the defendant fully discharged all his obligations, so far as the plaintiff’s default would permit; that he retained the ownership of the sheep, merely because the plaintiff, without excuse, refused to permit him to divest himself of it according to the terms of their agreement. By such default the plaintiff would seem to have lost or renounced all his conditional interest in the property. Can it he true, then, that any subsequent exercise, by the party not in default, of the rights incident to the absolute ownership thus forced upon :him, and involuntarily retained by him, may be regarded by :.the defaulting party as a rescission of the contract? The -docti’ine is apparently novel. ¥c have been referred to 1 Par-sons on Contr. 190, 191, in support of it; but we do not think rthe views of counsel are sustained by the authority. On the • contrary, we find the doctrine thus stated by him: “ G-enerally, as a contract can be made only by the consent of *all .‘.the contracting parties, it can be rescinded by the consent of mil, but this consent need not be expressed as an agreement. „If either party, without right, claims to rescind the contract, the .other party need not object, and if he permits it to be rescinded, fit will be done by mutual consent. Nor need this purpose of rescinding be expressly declared by the one party, in order to give to -the other the right of consenting, and so rescinding. There may be many acts from which the opposite party has a right to infer that the party doing them would rescind; and, generally, where ■ one fails to perform his part of the contract, or disables himself ■.from performing it, the other party may treat the contract as re-scinded. But not if he has been guilty of a default in his engagement, for he can not take advantage of his own wrong to defeat the contract.” '■There are many .authorities sustaining the principle last stated in this extract. In Ketchum v. Evertson, 13 Johns. 359, it was said by the court (Spencer, J.): “It maybe asserted with confidence, that a party who has advanced money, or done an act in part performance of an agreement, and then stops short and refuses to proceed to the ultimate conclusion of the agreement, the other party being ready and willing to proceed and fulfill all his stipulations, according to the contract, has never been suffered to recover for what has been thus advanced, or done. The plaintiffs are seeking to recover the money advanced on a contract every part of which the defendant has performed, as far as he could by his own‘'acts, when they have voluntarily and causelessly refused to proceed, and thus have themselves rescinded the contract. It would be an alarming doctrine to hold that the plaintiffs might violate the contract, and because they chose to do so, make their own infraction of the agreement the basis of an action for money had and received. Every man who makés a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiffs have. The defendant’s subsequent sale of the land does not alter the case. The ^plaintiffs had not only abondoned the possession, but expressly refused to proceed, and renounced the contract. To say that the subsequent sale of the land gives a right to the plaintiff to recover back the money paid on the contract, would, in effect, be saying that the defendant could never sell it without subjecting himself to an action by the plaintiffs. Why should ho not sell ? The plaintiffs renounced the contract and peremptorily refused to fulfill it; it was in vain, therefore, to keep the land for them. The plaintiffs can not, by their own wrongful act, impose upon the defendant the necessity 6f retaining property which his exigencies may require him to sell. This would be most unreasonable and unjust, and is not sanctioned by any principle of law.”

This case, it will be perceived, grew out of a contract for the sale of real estate. The purchaser made a partial payment on the contract, but afterward refused to execute it further. TTpon a subsequent resale of the premises by the vendor, the purchaser brought this action of assumpsit to recover the money paid on the contract. The case is analogous to the present one, and the reasoning of the coui't is entirely applicable here.

The same principle is affirmed in Hudson v. Swift, 20 Johns. 23; Green v. Green, 9 Cowen, 46; Battle v. The Rochester City Bank, 5 Barb. 414; 1 McLean, 242. And such, upon principle, must be the strict legal rule.

The sale of the property in this case, by the defendant, was not in violation of his obligations under the contract, but the mere exorcise of his rights, in accordance with its implied stipulations. And the plaintiff having, by his voluntary default, abandoned the contract, the defendant might certainly maintain an action against him for its breach, and at the same time treat the property as his own. Both these rights are co-existent, and the assertion of the one does not preclude the exercise of the other. If he failed to make himself whole by the resale of the property, at a fairprice, he might proceed by action to recover such ^damages as would make up the deficiency. There is no injustice in this. It merely places the party not in default where he would have stood had the agreement been performed. But if the resale of the property was, per se, a rescission of the contract, no action could th&reafter be maintained upon it, and this measure of justice would be denied to a blameless party.

"We are fully aware that embarrassing questions have arisen, and that a conflict of authorities may be found, in cases somewhat analogous to the present, where a party has sought to recover, in indebitatus assumpsit, for a part performance of a special contract for the sale and delivery of personal property, at a specified time and place, and to be paid for thereafter, on a day certain, and where the plaintiff has failed, without sufficient excuse, to deliver the whole within the time limited. The right to such relief was denied in Witherow v. Witherow, 16 Ohio, 238. That was a case of some hardship, and the propriety of a rigid application of the rule in such a case may certainly be questioned. But the propriety of any rule which would encourage the violation of contracts is at least equally questionable.

The rule in New Hampshire proceeds on the principle of giving ■ compensation for the breach, and requiring the party not in default to account for any excess of benefit he has received from part performance. Britton v. Turner, 6 New Hamp. 481. And, certainly, no rule is admissible which would be more favorable to the party in default.

It does not appear, in this case, that the plaintiff’s default was other than purely voluntary, or that the defendant has received from him anything which, under the circumstances, it would be equity or good conscience to retain. If the plaintiff have merits, they are not disclosed by his petition. And it will be time enough to overrule or narrow the application of the doctrine in Witherow *i>. Witherow, when a case is presented requiring such action in furtherance of justice.

Brinkerhoee, O. J., and Sutliee, Peck, and G-holson, JJ., concurred.


text:
    Jacob Rhonemus v. Robert G. Corwin.
    Where a decree in chancery, made by the Supreme Court of a county, under the constitution of 1802, for the sale of lands by the sheriff as upon executions at law, “ upon receiving an order for that purpose," was remanded to the common pleas for execution; and thereupon the clerk of the common pleas issued merely a certified copy of the decree of the Supreme Court, and containing no description of the land, except by reference to other parts of the record, a sale thereupon made, though not void, was irregular and rightfully set aside.
    In error to the district court of Clinton county.
    The' case is, in substance, as follows:
    The Supreme Court for Clinton county, in 1848, began on the 5th, and ended on the 6th, of June.
    The next term, thereafter, of the common pleas, began July 18th.
    The Supreme Court, at that term, rendered a final decree in chancery between these parties in a certain suit there pending.
    This decree found that Rhonemus had a valid lien on the lands described in the bill to the amount of $62; and, then, it proceeded to order Corwin to pay the $62, with interest and certain costs, into the hands of the clerk of the Supreme Court, for the use of Rhone-mus, within thirty days from the rising of the court; and, then, it was “further ordered that, in default of said j>ayment of said sum of $62 and costs aforesaid, ;that execution issue therefor as upon judgments at law; and that, in default of the ^payment of the said sum of $62, it is ordered and decreed that the sheriff of Clinton county, upon receiving an order for that purpose, proceed to sell, as upon judgments and executions at law, said land in said bill

      described; and the court do order that on the payment of said money and costs in the court of common pleas, the injunction, heretofore granted, be dissolved,” etc.
    On the 5th of July, 1848, a mandate was issued from the Supreme Court to the court of common pleas, to “cause execution to be had of said decree of the said Supreme Court, according to law.”
    The mandate was deposited and filed in the common pleas, at July term, 1848, and execution awarded on the decree at the same term.
    On the 29th of May, 1849, the clerk of the common pleas issued a certified copy of the decree of the Supreme Court, as remanded to the common pleas for execution; after his ordinary certificate, adding, he or somebody else, a description of the premises set out in the bill, and referred to in the decree, which description is neither signed nor certified by any one.
    The sheriff received the copy of the decree the same day, and proceeded to make sale of the lands. The sale took place on the 7th of July, 1849.
    On the 14th of September, Í852, a motion was made to confirm the sale.
    This motion was continued, from time to time, until the 7th of April, 1855, when the court, finding that, by virtue of the order of the Supreme Court remanded to the common pleas, and a copy thereof duly certified and delivered by the clerk to the sheriff, the sale had, in all respects, been made, in conformity to law, confirmed the sale, and ordered a deed to be made. From this decree an appeal was taken.' At the July term, 1856, of the district court, the case was heard, and a final decree entered finding the sale void, and setting the same aside, on the ground that no valid order had been issued to the sheriff, and that the *copy of the order, on which he made the sale, conferred no legal authority for that .purpose.
    The case is now in this- court, to revise the decree of the district court, and reinstate the order of confirmation made by the common pleas.
    P. B. Wilcox, for plaintiff in error.

      Durbin Ward, Galeb B. Smith, and D. P. Lowe; for defendant in ei'ror.
   Brinkerhoff, C. J.

It will be noticed that this case came into the district court by appeal from an o^der of the common pleas, confirming a sale made in a chancery proceeding. Such an appeal might be taken. Hey v. Schooley, 7 Ohio (pt. 2), 48; Kern’s Adm’r v. Foster, 16 Ohio, 276. The order #f confirmation made by the common pleas being vacated by the appeal, the cross-motions, to confirm the sale on the one hand, and to set it aside on the other, stood as original motions in the district court; and the question was, not whether the sale was void, but simply, whether it was regular. We do not think it was void; but if it was irregular simply, the district court was warranted in setting it aside, and its order ought not to be reversed. Was it regular? By the terms of the decree of the Supreme Court, the sheriff was authorized to make sale only “upon receiving an order for that purpose.” An order from whom? From the common pleas, obviously, for to that court the decree was sent by mandate for execution; and it was for that court to pass upon the regularity of the sale. But no order of sale was issued from the common pleas. There was a certified copy merely of the -decree of the Supreme Court, made out by the clerk of the common pleas. It was directed to nobody; it ordered nothing; it did not even describe the premises to be sold. It had none of the requisites of a writ, as prescribed by law; and had the sheriff neglected to sell, he would not-'*have been liable either to amercement or to the attachment for contempt. For aught that appears in the record, it may have been made out merely to be used in evidence or as a muniment of title.

We think the sale was irregular, and was properly set aside.

Decree affirmed.

Scott, Sutliee, and G-holson, JJ., concurred.

Peck, J., was absent.