text:
    *John Starke’s Lessee v. Smith.
    Lands granted to A. and taken possession of by B., whose possession is not protected by the statute of limitations ; proof that. B. purchased the warrants of A. before their location, located them and paid the-taxes, not admissible to raise the presumption of a conveyance from A. to B.
    The facts in this case may be found in the opinion of the court.
    Culbertson, for defendant.
    Starke, for plaintiff.
   Judge Lane

delivered the opinion of the courts

This is a motion for a new trial of an action or ejectment, tried in the county of Tuscarawas.

At the trial, the plaintiff produced a patent for the land to John Starke, dated August 6,1803, and proof of his death; that the lessors of the plaintiff are his heirs and that they have never resided in this state.

• The defendant offered to prove by parol, that in 1800 he purchased of John Starke his warrants, paid a full consideration for them, received and registered them, located and took possession of the lands in 1801, and has since remained in possession. Upon these facts he insisted : 1. That his possession was protected by the-statute of limitation. 2. That the patent of 1801 vested the title of the land in Starke, in trust for him, and that from the length, of time; the plaintiffs delay; the possession, and the payment of taxes by the defendant, that the jury should presume a conveyance to have been made to him.

The testimony was overruled, and a verdict rendered for tho-plaintiff. To correct the alleged mistake of the court, in the rejection of this testimony, the motion for a new trial is made by the defendant.

There is no ground for the position, that the right of action is. barred by the statute of limitation. None of the lessors of the plaintiff were ever in this state until shortly before the institution of this suit; and consequently they are within the saving of section 7. 29 Stat. 216.

The substantial question arising in this caséis, whether the facts do not raise the presumption that the land was conveyed *to the defendant. If the jury were authorized to deduce this inference, the charge was incorrect, and the defendant is entitled to a new trial.

This point has recently been the subject of examination by the Supreme Court of Connecticut, 2 Conn. 617, and the opinion of a very eminent judge, who reviews all the authorities, leaves little to be done by us, except to repeat his reasoning and adopt its results.

The statute of limitations is designed to make all the provision which the law deems necessary to quiet the possession of corporal subjects; but no length of enjoyment of incorporal hereditaments (which do not lie in seizin or possession) is protected by the direct operation of thestatute. Yet from the manifestpolicy of quietinglong enjoyment, courts have extended the operation of the statute beyond its letter, by establishing upon its analogy a presumption of right from length of user. From this principle is derived the undoubted rule, in respect to easements and incorporal rights, that a grant, or anything else necessary to legalize a right, may be presumed from long enjoyment. And in these cases, the mere fact of possession for a length of time in analogy with the statute of limitations, is the only fact to be proven; from which alone, a title is peremptorily to be presumed, on the principle of quieting enjoyment, without regarding whether an original title is believed to' have existed or not.

But in respect to corporal rights, this rule of presumption has not been applied. They are within the. purview of the act of limitations ; to superadd the doctrine of presumption, is to multiply those provisions, or rather to make a new statute. If by a rule of presumption, professedly adopted in analogy with the statute, a possession is to be quieted in other cases within its purview, and not within its sayings, it is plain that persons and rights not intended by the legislature to be affected, will be subjected to its operation. In all cases in which the statute operates, the only bar arising from length of possession, is that prescribed by its provisions.

■ It is true that in some cases length of possesion may be proved with other circumstances, fonperfeet the evidence of title to lands ; but the distinction between this principle and *the doctrine of conclusive presumption, as applicable to corporal rights, is very plain. In the one, length of possession is itself a bar, and raises the conclusive legal presumption of a grant, even under circumstances in which no grant would actually be made. But where' an actual transfer of title is to be shown by secondary evidence, when the deed or original evidence is tested by length of possession, is, like every other circumstantial fact, corroborative evidence, and in this light alone is admissible to prove an actual transfer. In these cases, it is immaterial whether the subject be corporal or incorporal, the length of possession is no more essential to the main fact than any other circumstance.

The distinction here pointed out may be found running with the whole current of decisions. The editor of Phillips’ Evidence (Phil. Ev. 124) is mistaken in asserting that the doctrine of presum ption is applicable to cases within the act; the.case cited, 11 East, 467, is one of crown lands, not affected by the operation of the statute.

The testimony offered authorizes no inference of the facts necessary to be shown to maintain the present defense. That he pur■chased and had custody of the warrants in 1800, before Starke’s legal title accrued, and that he has held possession of the land since 1801, treating it as his own, makes no more than the common case of a possession under an equitable title, and affords no ground to raise the presumption of fact, that an actual deed was made.

But it is insisted that the possession of a cestui que trust shall not be disturbed by his trustee. In cases of direct trust, where the possession is provided for by the deed, perhaps the position may be correct; but it has no place in trusts raised by construction merely. Ohio, 264.

The motion for new trial is overruled.


source: Caselaw Access Project

author: Judge Lane

license: Public Domain

text:
    *Lafferty’s Lessee v. Daniel Byers.
    Land advertised to be sold for taxes as original quantity, one hundred and seventy acres to be sold, seventy-tbree insufficient description.
    This was a motion for a new trial, reserved in the county of Champaign.
    The action was ejectment, in which the plaintiff’s title depended on a sale of land for taxes. He offered in evidence an exemplied copy of the books of the county auditor, showing the listing for taxation and the advertisement of the sale, in the following manner :

    The court instructed the jury that this description was so imperfect, that no valid sale for taxes could be made. A verdict having been rendered for the defendant, this motion for a new trial is made by the plaintiff, because he considers this instruction ■erroneous.
   Judge Lane

delivered the opinion of the court:

To sustain a title acquired by the purchase of land for taxes, -every substantial requisition of the law must be complied with. The authority to sell is construed strictly; no presumption is made in its favor; and proof of the regularity of the proceedings must be made by him who rests his title upon them, except in so far as this rule may be modified by our statute, in making the deed prima facie evidence of the facts. 2 Ohio, 504; 4 Cranch, 504; 4 Wheat. 77; 6 Wheat. 119; 4 Pet. 350.

The law, in requiring an advertisement of the sale, has the double object in view, to apprise the owner that the tax is unpaid, .and to invite the attention of purchasers in such manner that the land may be sold for its fair market price. To attain these objects, it is necessary that the description should be such that the owner may know that the tax on his land is unpaid, and that purchasers may *know or learn the precise tract intended, and be enabled to estimate its actual value.

In this case, the whole original entry was tested by its then owner, Haines, and perhaps was sufficiently described by its number and water-course; but ninety-seven acres had been transferred to another name, leaving seventy-three acres still standing to Haines. What “seventy-three acres? In common or separate? If separate, in what part of the lot does it lie ? The answers to these questions materially affect the price. Without them, no such information is communicated to the public as is calculated to produce a fair competition, and no prudent man will offer its value in his bid. The description, therefore, is not adapted to promote a fair sale, and it must be holden insufficient.

This point has been before decided. A levy by the sheriff upon “one hundred acres, section 4, township 7, range 4,” has been holden too vague. Lessee of Mathers v. Thompson, 3 Ohio, 569. The assessment of a tax upon “part of a lot,” or “one acre of a lot,” is not valid. Lessee of Massie’s Heirs v. Long, 2 Ohio, 287. A sale for taxes, under an advertisement of “ one-half lot 4, in square 461,” without designating which moiety, and that it was held in common, is void. Ronkenderff v. Taylor’s Lessee, 4 Pet. 350. We, cheerfully follow these authorities, and hold the instruction right.

Motion for new trial overruled.


author: By the Court :

text:
    William Ferguson et al. v. David Miller, Thomas Maxwell, William Grimes, and Benjamin Anderson, Executors of W. Anderson, and Sarah Archbold and Joseph W. Spencer, Administrators of John Archbold.
    This is a suit in chancery reserved from the county of Harrison. *The bill states that the plaintiffs are the children and heirs of Joseph Smith and Elizabeth Smith, his wife, who was one-of the heirs of David Miller, deceased. That David Miller died in 1816, leaving David Miller, the defendant, his administrator. Maxwell, Anderson, and Archbold were the sureties of the administrator. That a bill was formerly filed against these defendants by these plaintiffs, seeking an account, settlement, and distribution of the estate of David Miller, which was dismissed as to the sureties, merely on the ground that no suit could be sustained against them until the liability of the administrator was established ; but a decree was passed against Miller, the administrator,, finding a balance in his hands and ordering payment. The present bill avers the non-payment of the money, the insolvency of Miller and Maxwell, the surviving parties to the bond, and seeks to enforce the payment of the money found in the hands of the administrator by that decree, from all the parties to this suit.
    The defendants demur, assigning for cause that a former suit on the same cause of action was once instituted against these defendants, and was terminated by a general dismissal.
    Tappan and B. T. Wright, for defendants,
    rely upon the following points : That a decree, like a judgment, binds all parties and privies until the hearing and reversal by bill of review, 2 Johns. Ch. 205; 3 Ohio, 543; that general dismissal is a decree-upon the merits, 7 Johns. Ch. 286; and that this fact is so stated in this bill that the objection may be taken by demurrer.
   By the Court :

The position is undoubtedly correct that a decree upon the merits binds all parties to it. But the defense should be made by plea. The demurrer admits the truth of the statements in the bill, in which it is alleged that the former suit was dismissed without any investigation of the ultimate ^liability of the sureties. If the defense be good in this case, it must be presented in another manner.

Demurrer overruled, and the suit is directed to stand for answer.


author: *Lane, J.,

text:
    Bennet’s Lessee v. Miah Williams.
    When notice pf the pendency of a suit in chancery has been duly published, in conformity with the order of court where a suit is pending, the suit is to be considered as commenced and pending, and a subsequent disposition of the subject in dispute is & pendente Hie purchase.
    This was a suit in ejectment, reserved in the county of Delaware. . It is presented to the court upon the following agreed facts:
    In 1824, Jeremiah Williams, being the owner of three hundred and twenty acres of land, which are the subject of the present suit, conveyed them to Salsbury, by a valid deed. In February, 1826, Jeremiah Williams filed his bill to vacate this conveyance, and reclaim the title, on the ground of fraud. As Salsbury was a non-resident, the court of common pleas, to which the bill was referred, ordered that notice of its pendency should be published for nine weeks. This publication was duly made and completed by the 10th of May. On the 24th of May, two weeks after the termination of the nine weeks, Salsbury conveyed by deed to alienees, whose title is now held by the plaintiff. In 1827, Jeremiah Williams conveyed the land to the defendant, Miah Williams, by a deed of release'without warranty. In 1828, the suit in chancery was tried, and the legal title of Salsbury was re-vested in Jeremiah Williams by the decree. The possession has always remained either in Jeremiah Williams or in the defendant. It is submitted to the court for whom judgment shall be entered upon this statement of facts.

      Wilcox and 0. Parish, for plaintiff.
    G-. and J. R. Swan, for defendant.
   *Lane, J.,

delivered the opinion of the court:

The case shows that while Jeremiah Williams held the equitable right to the land, and was pursuing his legal title, he released his interest to the defendant. As he could only transmit the right he possessed, he conveyed an equity only. If the deed had contained a warranty, the subsequent acquisition of the legal title would have inured to the benefit of the defendant; but having no warranty, it works no estoppel, and no estate passes which can be recognized at law.

But the plaintiff must recover by the strength of his own title, not by the weakness of the defendant’s. His title arises from Salsbury, who held the legal estate under a well-executed deed. But the defendant insists that the ■ alienation from Salsbury to his vendees occurred during the pendency of the suit between Jeremiah Williams and him in relation to the land, and that therefore it passed no title.

No rule is better established, than that, during litigation, no change shall be made in the title affecting the rights of the parties. Hence arises the principle at law, that the judgment in a real action shall overreach an alienation after writ. The doctrine was adopted in chancery, by Lord Bacon, in analogy with this, and 'has since been constantly adhered to, that a' decree binds all persons coming into the title, during the pendency of the suit, without leave of the court. The rights of Salsbury and his vendees are affected by the operation of this rule; and in respect to Jeremiah Williams, and all who claim through the decree, it invalidates the sale made by Salsbury, during the pendency of the bill, in which Williams was pursuing his legal interests. A doubt is started in the argument, whether a purchase made during a suit in equity will be holden void, except in a court of equity; but we entertain the opinion that in our state, where decrees in chancery by statute of themselves convey the land, the rule will work its effect, not only in chancery, but at law.

The plaintiff relies-upon the positions, that at the time of Salsbury’s alienation the suit was not, in a proper technical sense, “ pending.” Where the process is by subpena, little *difficulty arises in ascertaining when the pendency of the suit begins; it is commenced by the service of the writ upon the party. 3 Ohio, 541. It is necessary to adopt some analogous rule, in those cases where the law provides a different manner of notice. Whenever the act is done by which the defendant is subjected to the jurisdiction of the court, it is a service of process, and the suit is commenced. When Williams complied with the order of the court, and made the prescribed publication for nine weeks, the suit is begun — the application of the rule commences, and no subsequent alienation can alter the rights of that plaintiff.

But the plaintiff insists that if he be a pendente lite purchaser, yet the present defendant shall enjoy no protection from the rule, because the conveyance, under which his title arises, is not absolutely void; that it is only invalid as to the plaintiff in the suit, or to one claiming under the decree. And this position, in a sense, we believe is correct. A conveyance pendente lite is undoubtedly good between the parties. The bare institution of a suit does not create an injunction upon alienation. The true interpretation of the rule is, that a conveyance during the suit shall not vary the rights of the litigants; they are exempted from the necessity of noticing titles acquired under these circumstances; to them such titles are as if they did not exist; for suits, would be interminable and judgments without fruits, if one could impose upon the other the necessity of making new parties as often as he chose to convey. But to alter the conveyance is valid, subject only to such rights as are acquired by the decree. 2 Ves. & Bea. 200. A perfect legal title, therefore, passed by Salsbury’s deed, which Jeremiah Williams alone was competent to question.

And whoever seeks the legal title to this land will find it in Jeremiah Williams. His equity was perfect at the filing of his bill; and the decree, by the operation of the statute, transferred to him the legal estate from Salsbury, and all claiming through him, by a conveyance pendente lite. We do not give any weight to the objection that the decree is not recorded in the registry of deeds. No statute, in terms, requires it — no settled practice furnishes evidence that the profession have deemed it necessary. Little inconvenience *can arise from its omission, since the decree is found at the place where judgment liens must be sought for, before the title can be pronounced free from incumbrances — ■ and the sense of the legislature upon this point may be gathered from the statute now in force (29 Stat. 83, 3, 13), which, in requiring the registration of decrees, operating upon land beyond the county where they are rendered, impliedly dispenses with such record, in cases where land lies within it. The facts agreed, therefore, show an outstanding legal paramount title in Jeremiah Williams, and consequently it is not the plaintiff who is permitted to disturb the defendant’s possession;

Judgment for the defendant.


text:
    McFeely’s Lessee v. Moore’s Heirs.
    Kule in Shelley’s case, 1 Bep. 104, declared to prevail in Ohio.
    This was an action of ejectment, reserved in Hamilton county,, ■and submitted to the court, on an agreed statement of facts.
    Both parties claim under the will of John Hale. The tenements were devised by the following words: “ To my son Walter, I give and bequeath, as also to Phebe his wife, the use of two lots; my will is, that Walter and Phebe aforesaid may have the use of these two tracts of land during their respective lives; but, at their decease, my will is, that these two tracts of land descend to their heirs, to whom I bequeath the same to have and to hold said tracts, to themselves, their heirs and assigns, forever.” The plaintiff claims title from the heirs of Walter and Phebe Hale. The defendant’s title arises from the grantee of Walter and Phebe Hale. If Walter and Phebo had a fee simple in the land, it is vested in the defendant; but if they had but a life estate, the plaintiff is entitled to judgment.
    *0. M. Spencer, Jr., for plaintiff.
    Storer and Fox, for defendant.
   Judge Lane

delivered the opinion of the court:

The determination of the present question depends upon the rule of construction to be applied to the will. It is assumed by the plaintiff’s counsel that is the manifest intention of the testator to give the devisees an estate for life only; and it is insisted that where the intent sufficiently appears, it is the plain duty of the court to give effect to it, and to hold that no larger estate passes. The defendant’s counsel would apply the rule in Shelley’s case to the interpretation of this will; by the operation of which, he claims an estate in fee in the immediate devisees. The rule is, where the ancestor takes a freehold, and by the same conveyance, whether deed or devise, is limited, either mediately or immediately, to his heirs, the word “ heirs” is a word of limitation, not of purchase, and the fee vests in the ancestor. 1 Rep. 104. The very elaborate discussions upon the authority, effect, and extent of the rule, leaves no room to doubt that the estate’ created by the present will is fairly within its scope.

It is urged, however, that the rule has a feudal origin, and that policy does not require or permit its adoption in a community like ours. But it has been too long established to be abrogated by us. From the earliest period, we find it -a settled rule of the common law. It is found in the Year Books ; it is stated in the Institutes as clear and undisputed; it is recognized in the Abridgments of Fitzherbert and Rolle; it has descended, in the English courts, to the present time, unimpaired, by attempted innovations, and flourishing in full vigor. It has been adopted in the United States. In Connecticut, Maryland, Yirginia, South Carolina, and New Yoi*k, it formed a part of the common law, and it continues to exist, as a rule of property,- except where abolished by statute. If its policy be doubted, let the legislature bo ^called to act; but if we should disregard a rule, which has prevailed so widely and •subsisted so long, it would be an unfaithful interpretation of the law.

Judgment for defendant.


text:
    Harris v. Ohio Insurance Company.
    The sixth rule of the Ohio Insurance Company, in relation to double insurance, extends to a case of subsequent as well as previous insurance on. the same risks.
    This was an action of covenant, reserved in Hamilton county. The facts may be found in the opinion of the court.

      Storer and Fox, for plaintiff.
    Hammond and N. Wright, for defendants.
   Judge Lane

delivered the opinion of the court:

This was an action of covenant, on a policy of insurance against fire, upon goods valued at four thousand dollars, for the term of five months, from August 8,1829.

The defendant asked oyer of the policy and of the conditions attached, the sixth of which is as follows; “6. Persons insuring property at this office must give notice of any other insurance made on their behalf on the same, and cause such other insurance to be indorsed on the policy; in which case, each office shall be liable to the payments of a ratable proportion of any loss or damage which may be sustained. And unless such notice is given, the insured will not be entitled to recover, in case of loss.”

The defendants plead, that on October 31, 1829, the plaintiffs caused insurance to be made, of the same goods, at the office of the Cincinnati Insurance Company, of which they gave no notice to these defendants, nor did they cause the second insurance to be indorsed on the said policy. To this, the plaintiff demurred, and the question presented *by this issue is, whether by tho-sixth condition, the plaintiff loses his right of recovery, in cases where he neglects to give notice and make the indorsement of subsequent insurers, or whether he is bound to communicate such insurances only as had been made before the date of the policy which he seeks to enforce.

In cases of double insurance, the law will not permit the insured; to obtain double satisfaction, although he may collect payment of his loss from either. In such cases, when one insurer pays the-whole loss, he is entitled to contribution from each underwriter, for his proportion of the sum paid, without regard to the dates of their respective policies. 3 Kent Com. 227; Phil. Ins. 326. To apprise the assurer of his right to claim a contribution from his co-insurers, is one object designed by the introduction of this.condition.

Besides, it is' the interest of the insurer that the assured should sustain a part of the risk, for if the insured be more than indemnified, if this do not tempt him to produce loss, it at least tends to relax the diligence which prevents it. Upon the diminution of the risk, arising from the co-operation of the interest of the insured with his own, the assurer has a right to calculate ; and if an event occur, by which this identity of interest is ' destroyed, many reasons concur to make it proper in time to require a knowledge-of the fact from the insured.

These causes operate equally on the insured, in all cases of double insurance, whether prior or subsequent to the policy sought to be enforced. We feel, no doubt, that by the sixth condition, it was intended to . exact this communication from the plaintiff whenever it occurred, and that this intention is sufficiently manifested from the transaction. The grammatical construction of the sentence will bear either interpretation, and consequently throws little light upon the matter. But the parties evidently designed to give the fact of double insurance very different character from any of the class which compose the representation. The object they had in view was “ that each office should bear its-proportion of the lossand the insured, in whose custody the policy remained after execution, were to cause the indorsement to be made. These considerations convince us *that the plaintiffs were sufficiently apprised of their duty; that their omission to notify the second insurance is a kind of bad faith, which cuts off their remedy on the policy.

An objection is stated that the plea does not sufficiently show the second insurance was a double insurance, the one being upon the goods, and the other on the store and goods. The rule is correct that to constitute á double insurance, the same risks must be covered by the second policy, for the benefit of the same person. An insurance against one peril does not diminish the owner’s interest as to other perils. If property be insured to its value-against, capture, the owner has the same amount of honorable interest against the perils of the sea. Phil. Ins. 326; 11 Johns. 238; 5 Serg. & R. 513. But where the second policy insures-the same risks, for the benefit of the same person, it falls within Mansfield’s definition, 1 Burr. 489, and is, to any extent, a double insurance. The plea, in the present case, shows the,goods are-protected by the second policy from perils by fire; it is therefore-a double insurance of the same risks.

The plaintiff has leave, on motion, to withdraw his demurrer on the payment of costs, and to reply. 4 Ohio, 224.


text:
    William Knobb v. Stephen Lindsay and Nathan Lindsay.
    ¿Person arrested and in prison upon a criminal charge conveys to a third person, in fee, real estate worth two thousand five hundred dollars, renting for eighty dollars per annum, in consideration of the grantee becoming bail, and agreeing to pay the grantor an annuity of one hundred dollars per annum during life, not relieved against in equity, though grantor is aged and intemperate, there being no proof of fraud in the case.
    This was a suit in chancery, reserved from the Supreme Court •'in the county of Hamilton.
    The bill states that the plaintiff is an old man,'ignorant and ■Imperfectly acquainted with the English language. That in the beginning of March, 1830, he was committed to prison, upon the accusation of an infamous crime, and that Lindsay, pretending to -assist him, agreed to become his bail if he would execute an agreement to mortgage his farm, containing two hundred and eleven acres, and worth about *two thousand five hundred ■dollars, for his indemnity. That the agreement was made, the bail for five hundred dollars entered, and that on March 9, 1830, he executed and delivered to Lindsay what he supposed was the mortgage,-and departed for Pennsylvania. That on his return he "first learned the deed was absolute. That Lindsay took possession of the farm during his absence, and by collusion with his tenants, procured them to aceeptf new leases from him.
    The bill proceeds to state that at the date of the above deed Lindsay gave to Knobb an agreement, secured by a mortgage on the land, to pay him an annuity of one hundred dollars during his ■life; and a further instrument of writing was made, in which, after reciting'the conveyance to Lindsay, the liability of Lindsay to pay the sum of five hundred dollars as bail, and the mortgage securing the payment of the annuity to Knobb, it is stipulated <by Lindsay that if he will yet pay to Knobb one hundred dollars per annum for the first five years, and that he will afterward pay ■fifty dollars per annum, retaining fifty dollars per annum only until his advancements, as bail, shall be repaid.
    The bill proceeds to aver that no bill of indictment was found' against him, so that the recognizance of bail was never forfeit, that .he is a man of feeble intellect, and at times insane. That the •writings were not read to him at the time of their execution j that tbe conveyance of the land was obtained under such circumstances that he is entitled to the aid of the court in setting it aside. He therefore prays that the deed may be canceled, and for general" relief.
    The answer of Stephen Lindsay admits the deed and the time of execution. It avers that he found Knobb lying under arrest, upon a criminal charge, by the procurement of his son, and that-he became bail, at Knobb’s solicitation. That Knobb was much exasperated at the steps taken by his son, and unwilling that his-property should ever descend to him; and he therefore proposed to Lindsay to convey his farm for an annuity upon his life of one-hundred dollars, which Lindsay agreed to give.. The writings named in the *bill were designed to carry this purpose into effect. They were read and explained to Knobb; they received some modifications at his instance, and were executed with his-’ entire understanding and assent. - Possession of the land and oí the title papers was delivered by Knobb to Lindsay, and it wasKnobb himself who canceled and destroyed the outstanding leases. He admits that he purchased the farm for less than its value, but avers that its price was materially affected by the general want of repair in the fences, and by the doubts upon-its title, in consequence of a claim set up by Lemuel Taylor. The land was leased, at eighty dollars per annum. He insists that Knobb, although, not well acquainted with English, was a man possessing a strong mind and good sense; was sane; duly sober, and perfectly competent to contract, and that no fraud or ill faith was practiced to-lead him into this arrangement.
    Nathan Lindsay answers that he is a purchaser of a part of the land from Stephen Lindsay, and knows nothing of the original transaction.
    The pleadings-were closed by a general replication. Yoluminous testimony was taken, which is noticed as far as necessary by the court in the opinion below.
    Stor.br. and Fox, for plaintiff.
    Strait and Hawes, for defendants.
   Judge Lane

delivered the opinion of the court:

The precise ground upon which relief is claimed in the present-case is not very specifically pointed out in the bill. It is hardly insisted that the duress is such as to avoid the contract. Although the'agreement to convey was executed while the plaintiff was in prison, yef it was a lawful imprisonment, and not produced by Lindsay, and a bond to procure a discharge, or for any other honest purpose, is not void. 2 Inst. 481. It was not unreason.able for Lindsay to annex to his offer of bail the condition that ICnobb should secure him against the risk. And it seems that this ground *of relief is wholly taken away by the execution of the stipulated conveyance, after his discharge from prison, when .all restrictions upon his liberty were at an end.

Is it sufficiently proved that he was incapable of contracting ? He is represented to be at times-intemperate. Burdieh says that while under arrest and on his way to prison he seemed depressed, cast down, and intoxicated, so much that he should not have deemed it right to have made a contract with him. Picklehamer alone represents him as having lost his senses after his liberation, “sometimes crying,'sometimes preaching, sometimes cursing and swearing, during which he appeared sober.” To explain this we need not raise the harsh presumption that he was following the advice he said he had received, “to act foolish that he might regain his land.” The testimony fully shows that none of his acquaintance ascribe to him any other insanity than occasional intoxication.

There is no sufficient evidence that fraud was practiced upon the plaintiff. The arrest did not arise from the defendant, nor did he officiously pi’ess his aid upon the plaintiff; he lent his assistance at the solicitation of the plaintiff at an accidental meeting.

No false pretenses are shown as inducements to lead the plaintiff into this agreement. But it is said that he intended not to ■ convoy the land, but to mortgage it for Lindsay’s-indemnity. The proof to support this is of the slenderest description, consisting merely of the fact that while in jail, and before the agreement was made, Lindsay and Knobb told Mr. Fox that Lindsay had agreed to become the bail, and to take a mortgage on the land for indemnity. May it not be presumed that the parties changed their arrangements ? The answer alleges that he designed to disinherit his family, and his situation renders this in the highest degree probable. That the agreement was not truly written is fully denied in the answer, and fully disproved by testimony. The bill shows that on the day when the land was conveyed by Knobb, Lindsay gave to him a bond for the annuity, the payment of which was secured by a mortgage of the same land to Knobb by Lindsay. Can it be possible -that this arrangement should have been made ^unless the land had been conveyed; that Knobb should have taken a deed from Lindsay unless he had transferred to him? What other consideration did Lindsay receive for the annuity? But the direct proof is full. Dennis, a subscribing witness, knows the deed was read and explained to Knobb, and he appeared satisfied. Foster, likewise present, says -that on learning its terms he hesitated to sign the deed, but afterward consented. He told Eickleberger he had sold the land for the annuity ; and Peter Knobb proves that before his father went to Pennsylvania he spoke of the sale to Lindsay, that possession was yielded, and the outstanding leases were destroyed by- his consent..

There remains the question upon the inadequacy of consideration only. An estate worth two thousand or two thousand five hundred dollars, and producing eighty dollars per annum, although in bad repair, is sold for the annuity of one hundred dollars for the life of an intemperate man, who has passed the age of •sixty. Efforts are made to show the difference of value is not so strikingly great; that a shade hang's over its title from the claim of Taylor; that a part of the value has been added since the contract by the general rise of property, yet we can not hesitate to believe, from the proof, that Lindsay acquired it for much less than its worth.

But this fact affords the plaintiff no ground for relief. It is a point well settled that mere inadequacy of price, although it may lead courts to abstain from executing agreements, is not a suficient cause for rescinding, unless it be so gross as to afford proof of actual fraud. 2 Johns. Ch. 1; 14 Johns. 527; 3 Cow. 590; 3 Cow. 445; 2 Des. 636; 3 Des. 292; 4 Des. 651.

That degree of inadequacy does not exist in the present case. The parties were dealing upon a most obscure subject of traffic, the value of the life of an intemperate old man. Some of the witnesses, who seem honest, calculated its probable duration at twenty or thirty years. If witnesses entertain such extravagant opinions the parties may be excused in mistaking without the imputation of fraud. Besides, we may as well presume that Knobb would then have preferred to bestow the benefit of his-property upon the friend who delivered him from prison rather than upon *the son who placed him there. The facts do not authorize the conclusion of actual fraud. If the contract had remained executory, perhaps we might not have decreed a performance, but there is no ground toxescind.

Bill dismissed.-


author: Judge Collet

text:
    Levi Nelson v. Adam C. Ford.
    Action will not lie for the recovery of a contract penalty unless upon a specialty.
    Formal introduction, and conclusion of a declaration or contract, not regarded after verdict.
    Debt or covenant maintainable on a sealed obligation to pay a sum certain in commodities.
    Debt can not be sustained on a stipulated penalty, in a lease not under seal, where the agreement is to pay, as rent, a part of the crop.
    In action upon contracts, where there is one bad count, and several damages assessed, no judgment can be rendered for plaintiff.
    Ford commenced an action against Nelson before a justice of the * peace of Fairfield county, which was appealed to the common pleas-, where Ford declared against Nelson in debt. The declaration contained three counts. The first stated that the parties, etc., by their writing obligatory, sealed, etc., submitted a controversy, etc., to the arbitration of, etc., and that for the performance of the award, they bound themselves each to the other in one hundred dollars. That the arbitrators did not meet and award, etc. That afterward the parties, by an agreement-written on said obligation, and signed, but not sealed, referred the same matters to the arbitration of other persons named in the agreement, and also ágreed to abide by and perform the award, as by the writing obligatory they had agreed to perform the award of the first arbitrators. That these arbitrators, in pursuance of the submission, etc., awarded in writing, under their bands and seals, that Nelson should pay Ford fifty dollars in corn at twenty-five cents per bushel. After laying a breach of the award by non-payment, the declaration stated, “ whereby an action has-accrued to the said Ford, to demand and have of the said Nelson the said sum of one hundred dollars, in the said writing obligatory mentioned.”
    The second count is an agreement in writing, signed by the parties, but not sealed, whereby Ford agreed to lease certain premises to Nelson, for which Nelson agreed to pay him certain proportions-of the crops raised by him on the premises. The agreement has a clause by which each binds ^himself to the other in a penalty of two hundred and fifty dollars for its performance. After the assignment of the breaches, it is stated “ whereby an action has accrued to the said Ford to demand and have of the said Nelson the said sum of two hundred and fifty dollars.”
    The third count states that the submission, without reference to the writing obligatory, sets forth the award, its non-payment, and concludes as a count in assumpsit, “ to the damage of the said Ford ninety dollars.”
    To this declaration the defendant pleaded nil debet. On the trial a verdict was found for Ford for fifty dollars, on which judgment-was entered. To reverse which this writ of error is brought.
    Hunter, for plaintiff.
    Irwin, for defendant.
   Judge Collet

delivered the opinion of the court:

The errors insisted on for the reversal of this judgment are:

1. That an action will not lie for the penalties demanded by the first and second counts.

2. That debt will not lie on the awardi

3. That'the third count is in case and not in debt.

4. That the second count is an agreement to pay a part of the crop raised on a farm, in kind, and debt will not lie for its nonpayment.

The submission of the parties of their controversy to arbitration, by the deed set out in the first count of the declaration, by there being no award made, without the fault of either party, became void. The penalty of one hundred dollars was not forfeited. The second submission was in writing, signed, but not sealed, by the parties. It referred to the first to show the matter submitted to the second set of arbitrators, and the terms on which it was submitted. It must be construed as though the terms of the deed had been copied into it. It would then have been, as to the penalty, that for not performing the award, the party should forfeit one hundred, dollars.

An action will not lie on a contract for the recovery of a penalty, unless the action is a specialty, either a deed .or a * recog* nizance. A penal sum is an amount greater than the value of the' consideration, a forfeiture. In an action on a deed, the value of the consideration can not be shown to defeat altogether the action. Anciently, in an action of debt on a penal bond, the penalty was recovered and really made on execution, but since the principles of justice have been understood by the courts and people, and her dictates obeyed, the penalty is only nominally recovered, but no more than the value of the consideration, the condition of the bond can be collected of the obligor. In actions on contracts not under seal, no more than the value of the consideration, or damages sustained by the breach of contract, can be even nominally recovered.

The caption of a declaration in debt, “ that the defendant render to the plaintiff the sum of,” etc., is no part of the declaration, and on special demurrer, if justice require it, will be rejected as surplusage. 1 East, 62; 1 Saund. Pl. & Ev. 405.

So the clause in the count, “ whereby an action has accrued to the plaintiff to demand and have of the defendant,” etc., after verdict, will undoubtedly be rejected as surplusage. If the facts stated in the declaration are sufficient to sustain the action, it-is a conclusion of law that the action thereby accrues, etc., and if they are not sufficient, the attorney’s conclusion of “ whereby an action has accrued,” etc., is false, and of no avail. 2 Chit. Pl. 142, note; 1 Saund. Pl. & Ev. 405.

'The submission and the award are set out in the first count of the declaration and a breach of the award. The award is that Nelson should pay Ford fifty dollars in corn, at twenty-five cents a bushel. On Nelson not paying according to these terms, an action accrued to Ford to recover of Nelson fifty dollars, a liquidated amount. Debt lies for a sum certain; for liquidated damages. 1 Chit. Pl. 101; Bac. Ab., Debt, note.

On the circuit this court has often decided that on a sealed bill to pay a certain sum, in trade generally, or in houses or land, or corn, either debt or covenant would lie. We see no good reason why debt should not be sustained on this award. The sum to be recovered is ascertained; the measure of the recovery, the rules of evidence and of pleading *are substantially the same, whether the action is debt or assumpsit. Rejecting the conclusion, “whereby an action has accrued to demand the one hundred dollars,” the law supplies, whereby an action accrued to demand fifty dollars. We see no valid objection to this count.

The third count is on the award. It omits the common clause, “ whereby an action accrued to demand,” etc., and concludes as a •count or declaration in assumpsit, “whereby the plaintiff has sustained damage, etc.” We have just said that the law supplies, whereby an action accrues, etc., which would make it formal. After verdict, the objection can not be sustained by the court. 1 Saund. Pl. & Ev. 405.

The second count is on the lease not under seal, whereby Nelson agreed to pay Ford a proportion of the crop raised by Nelson on the leased premises. The penalty of two hundred and fifty dollars contained in this lease must, we have said, be rejected. The value of the rents are not stated in the lease, the damages are not liquidated, nor is there any provision, in any event, to pay their value in money. An action of debt, therefore, can not, on this lease be sustained. This count is, therefore, bad. The verdict was general. And the law or rule in such cases is, that the judgment must be reversed. Cowp. 276; 29 Ohio L. 80, sec. 116.

Lord Mansfield says of this rule of law: “I have exceedingly lamented that ever so inconvenient a rule should have been established as that, where there are several counts, entire damages and one count is bad, and the others not, this shall be fatal, upon the factitious reasoning that the jury has assessed damages on all, although in truth they never thought of the different counts, but the verdict was so taken from the inadvertence of counsel in the hurry of nisi prius. And what makes this much more absurd is, that it does not hold in the case of er iminal prosecutions, for .when there is a general verdict of guilty, on an indictment consisting of several counts, if any one of them is good, that is held sufficient.” Doug. 730. Notwithstanding this, the practice is settled here, and out of our reach by being recognized by the legislature.


author: Collet, J.,

text:
    *John Winton, Lessor, v. William Cornish.
    Lease of a cellar and lower room in a building of several stories, gives the-lessee no interest, in the land — and if the whole building is destroyed by fire, all the lessee’s interest is gone.
    This was an ejectment, tried on the last circuit in Hamilton county. A verdict, by the direction of the court, was taken for the plaintiff; a motion was then made for a new trial, which was reserved for decision here.
    It was proved on the trial that the lessor was the owner in fee of a lot and house, at the northeast corner of Front and Sycamore streets, in Cincinnati; that the house was of several stories-in height, with a cellar underneath; that on August 29, 1830, he, ' by a lease, let to the defendant, for three years from the 14th of that month, “ the store-room and cellar thereunder in the northeast corner of Sycamore and Front streets, in the city of Cincinnati,” etc., at a rent of three hundred and fifty dollars a year, payable, etc.; that the defendant covenanted not to make any material alteration in the form of the room or cellar without the consent of the lessor; that the defendant was in possession of the store-room and cellar at the time; that the room is in the first story, measures about twenty-five feet by thirty, and is at the corner of the streets; that the other rooms in the house were rented to and occupied by others; that in June, 1831, the house was destroyed by an accidental fire, without the default of either party. It was also proved that the cellar was partly filled with rubbish from the burning of the house; that to this the defendant added, and built a small house over it, which occupies about the space of the room leased by him, not a greater, and that it is not higher than the ceiling of the room which he leased'; that of this building he holds possession, and that before he erected it he was forbidden to do so by the lessor.
    Starr and Caswell, for the defendant,
    argued that the land under the room and cellar passed by the lease to the defendant, and that he has still a right to the possession, for his term, of the space filled by the room and cellar before they were destroyed by fire, and cited 1 Co. Lit. by Thomas, 234, 248, 280; Shep. Touch. 94; 2 Saund. 401; *Co. Lit. 56, 562; 1 Term, 701; 4 Cruise, 321; 6 Greenl. 436; 6 Mass. 67; 16 Mass. 238; 3 Johns. 44; 1 Dall. 210; 1 Term, 310; 4 Dane’s Ab. 378; 3 Kent’s Com. 371-374; 8 Cowp. 730.
    Storer. and Fox, for the plaintiff,
    contended that by the lease the room, and cellar only passed, but no interest in the land; that the fire destroyed the room and cellar, and left nothing .conveyed by the lease. They cited Story on Bailment, 275; Woodfall’s Landlord and Tenant, 151.
   Collet, J.,

delivered the opinion of the court:

The word land includes not only the face of the earth, but every-. thing under it or over it. He who owns a piece of land, therefore, is the owner of everything underneath in a direct line to the center of the earth and everything above to the heavens. No person can undermine or ovorhang another’s land without violating his rights. 2 B. C. 18. The owner, of the land can convey it, or the profits of it, for such terms and in such parcels as he thinks proper. He can grant the right to take all the minerals underneath, or those twenty feet below the surface only; to dig all the turf, to inhabit a cave, if there is one, to occupy a. room in the third story, to occupy the second story, a room in the first story, or the cellar, or a part of the cellar. By such grants the land does not pass. When the mineral or the turf is exhausted, the grantee has no right even to enter the .premises. When the cave, is destroyed by a convulsion or otherwise, there is nothing that was granted remaining. It is so of the rooms or cellar of a house. The lessees of a middle story of a house are limited above and below as well as on the sides,' yet the land is as necessary to sustain their part of the house as that below. Where the whole of the profits of a piece of land are granted to an individual the land passes. Such a grant manifests such an intention. When, the profits are gone why retain the land ? But when a part only of the profits are granted, the land does not in general pass, although livery is made. Co. Lit. 4, 6. By the grant of a whole house to an individual, unless there are productive ^minerals underneath, the whole profits of the land on which it stands are granted, and the land passes. By the granting of the cellar the whole profits of the land underneath are not parted with, nor by the granting of any one or two rooms when they are overhung by others. It is said by 2 Blackstone, 19, that by the term land anything terrestrial may pass, but by any other term nothing else passes but what falls with the strictest propriety within the meaning of the term used. It has been well said in argument that what passes depends on the intention of the parties, to be collected from the lease. 2 Bac. Ab., Lease, K.

The forms of leases for rooms in the upper stories and for cellars do not vary, that we know of. A clause that the form of the-room or cellar should not be materially altered, would more likely be introduced into the lease of a store-room than of a room above. They would probably look upon a lease conveying a room for the same term, whether on one floor or another, as conveying the same interest. Whole rows of two, three, and four-story buildings, in-the most important parts of a city, are sometimes at once destroyed by fire. Can the lessees of cellars, holding by leases suclv as this, cover themselves in their cellars and prevent the entry of their landlords to reconstruct' the houses ? Can the lessees of basement stories of public buildings, with leases such as this, when the edifices are destroyed by fire, roof the basement story and prevent the agents of the public from entering to reconstruct the edifice? It appears very clear to us that the parties to. such leases do not sojntend.

Upon the whole, the motion must be overruled, and judgment entered on the verdict.


text:
    *John Dewit, Lessor, v. Elijah Osburn.
    A recognizance for tbe appearance of an individual to answer an accusation or as special bail, does not operate as a lien upon the land of the recognizors, until judgment on the recognizance, as in other cases.
    This is an ejectment. The facts were agreed on by the parties, and it was submitted to the court on the last circuit in Fayette county, and reserved here for decision. The facts are, that Peter Harnes, on February 25, 1830, in the court of common pleas for the county of Fayette, entered into a recognizance in one hundred dollars, for the appeai’ance of Adam Harnes to answer to an indietment pending against him in that court. On May 20, 1830, the recognizance was forfeited; a sci. fa. was afterward issued on the recognizance against Peter Harnes from that court, and a judgment on it there obtained against him, on October 6, 1831. An execution issued on this judgment; the promises in controversy, situate in the county of Fajmtte, were levied on by the sheriff, by virtue of that execution ; they were sold by the sheriff to Dewit, the lessor; the sale returned, confirmed, and a deed ordered by the court to be' made by the sheriff to Dewit, which was made before the commencement of this action. The execution, and all the proceedings of the sheriff, and of the court in ordering the deed, are regular. At the time Peter Harnes entered into the-recognizance, he was seized in fee of the premises. On September 17, 1830, he, for a valuable consideration, sold, and by deed duly executed, conveyed the premises to S. Jinks, who then had no actual notice of the recognizance. Jinks, on November 26,. 1830, for a valuable consideration, sold; and by deed duly executed, conveyed the premises to Osburn, the defendant, who, at that time, had no actual notice of the recognizance.
    G-. Swan and Loughborough, for defendant.-
   Judge Collet

delivered the opinion of the court:

Osburn is a bona fide purchaser of the premises, for valuable consideration, without notice, and before the judgment. The only question to be decided is, whether the recognizance was a lien on the lands in the-hands of such a purchaser.

*TJnder the feudal system, lands could not be aliened by the holder, without the' consent of the lord, for thereby an enemy of the lord, or a person unable to serve him in his wars, might be put in possession of the land; neither was it liable for the debts-of the holder, nor could he make it liable, unless for debts due the lord; for in collection of the debts a tenant might be introduced, the enemy of the lord, or one unable to perform his services; but it was held liable to the [ord for debts due him, from the time they were contracted, 2 B. C. 57; 3 B. C. 420; for in collecting his own debts', he would take care that he got proper tenants, or if he retook the land, with its rents he could hire one, and as the tenant could neither alien nor lien, no subsequent purchaser or creditor could be injured by the lord’s lien; hence, probably the form of the recognizance to the king, the lord paramount, “to be levied of your goods and chattels, lands and tenements,” etc. As the lords and people became more civilized, more agricultural, less ■warlike, and as commerce was introduced, the holders of land, it Is not improbable, with the consent of the lords at first, acknowledged before the officers who took the king’s recognizances, in the same form to their creditors for their debts; after some time they did so without his assent, and so it became common law that they could do so without the assent of the lord. The interest of the vassal in the feud, or land held by him, imperceptibly increased from a life estate to a fee ; there was no other way by which land could be conveniently subjugated to a debt due to other than the lord; lands passed by livery without deed, but few of the people could read or write, but the owner with his creditor could go before a court or judge and acknowledge a recognizance.

Parliament to encourage trade and commerce, in 13 Edw. I. and 27 Edw. III., enacted the statutes merchant and staple, which authorized traders, by recognizances acknowledged before the mayor of a city, to secure their debts to one another by their liening them on their land', and pointed out the mode of execution. 23 Henry VIII, extends these provisions to all others as well as traders. 3 Bac. Ab., title Execution, B, sec. 3; 2 B. C. 160, 341. These recognizances in England authorize the recognizee to take the rents and ^profits of the land until the amount of the debt is received, but not to sell the land. A judgment and execution there does not authorize the sale of land. These statutes never were in force in this country. In England they were necessary; thoyenabled the people to bring a part of their landed capital into trade with facility; they made the unjust landholder, who refused to secure or pay the manufacturer or merchant, more inexcusable; they weakened the feudal grasp on land. Subsequent purchasers could be but seldom injured by the lions of recognizances; lands wore not daily in the market there in the times of the Edwards and the Henrys as now here, nor are they yet. Creditors do not there look to the value of the land of the debtor as a means of payment, as they do here. The reasons for liening land, by recognizances, do not apply to us; our lands have always been allodial; no lord to be consulted before an alienation or mortgage could be made ; our owners of land could draw, or have drawn, a mortgage with less cost or trouble than it would be to acknowledge a recognizance before a court or judge; our landholder can east his merchant’s account, read or write his mortgage; his merchant or manufacturer is not a foreigner, against whom he is prejudiced, and in whom he has no confidence. Our lands have always been subject to sale on execution for the payment of tho debts of the owner. Liens on these endanger the interest of subsequent creditors and purchasers almost as much as liens on chattels. Recognizances of no kind have ever been considered as liens. Who, when inquiring for liens, has asked the clerk for recognizances, either to the state orto individuals, as of special bail? The land of special bail, in England, is bound by the recognizance. 2 Salk. 564. Who asks the clerk for more than a list of judgments and decrees, their dates and, amounts ? Who, when he ascertains that there are no judgments or. decrees in the courts, or conveyances or mortgages on the books of the register of deeds, is not satisfied that he has no other liens from which to apprehend danger.

That recognizances of any kind have not been considered by -our legislature as liens is plainly inferable from various acts. By the acts of 1824 and 1831, regulating judgments and executions, 22 Ohio L. 108, and 29 Ohio L. 101, and the acts regulating *the practice of courts of chancery, the liens of judgments .and decrees are carefully defined ; when they commence, and when they terminate. 29 Ohio L. 86, sec. 37; Id. 73, see. 85. When the sheriff sells and conveys land on an execution, he conveys the title the defendant had when the judgment became a lien, 22 Ohio L. 112, and 29 Ohio L. 105, which is on the first day of the term in which it was rendered, whether the judgment is found on a xecognizance or other evidence of debt. On an execution on a judgment, or a scire facias, or a mortgage against the mortgagor, the sheriff’s deed conveys the title the mortgagor had when the mortgage was made. 22 Ohio L. 232; 4 Ohio, 500; 29 Ohio L. 84.

To provide for the preservation of deeds and mortgages, and to ■secure creditors and purchasers against imposition, the legislature have declared how they shall be executed, when and where they shall be recorded. In this respect they have said nothing as to recognizances; the acts requiring certain recognizances to be recorded is to preserve them, and that a sci. fa. may issue on them, and a judgment be obtained in a court of record, but not to fix a lien otherwise than by a judgment. 22 Stat. 54; 29 Stat. 60.

By the act defining the duties of executors and administrators, 29 Ohio L. 236, when an estate is insolvent it is directed that the lands of the deceased shall be sold by the administrator, and that he pay, first, funeral expenses, costs of administration, expenses of last sickness, the sum allowed for the support, for one year, of the widow and children; second, mortgages and judgments rendered against the deceased as far as they were liens on the land; third, all debts not paid under the provision of the second class, whether judgments or parts of judgments on bonds or accounts, etc., to be paid in proportion to their amount; here liens are provided for, mortgages and judgments are enumerated, but recognizances aro not mentioned.

That in England they were liens may be inferred from their form, “to be levied of your goods and chattels, lands and tenements ; ” but not so here; the form has been adopted by the officers and the legislature, because it was found in the books without regard to the original meaning. The same form in this respect is prescribed for the recognizance to the *state to answer for a crime, for special bail in common pleas and Supreme Court, special bail in the justices court, for appeal from a justice, for stay of execution before a justice. 29 Ohio L. 201, 120, 161, 191, 192. By giving this form for bail in civil cases before a justice, the legislature certainly do not mean that the land of the bail is mortgaged thereby for the liability of the cognizor when the justice’s judgment when finally rendered is no lien 1 Ohio, 318.

The interest of the state is sufficiently guarded'without the lien ; her object is not money, but to secure the appearance of the individual. The officers are to judge of the sufficiency of the bail, and will reject it if not good. The defendant’s interest will not be endangered. If he has land and his bail are afraid of him, they can take a mortgage of him for their indemnity. If the land-is aliened fraudulently, it is liable for the judgment on the recognizance; if bona fide, it is surely better that the recognizance should not be collected, than that an innocent purchaser, a stranger, should have to pay the amount. Judge Shippen, at an early period, in Pennsylylvania, determined that a recognizance did net thera bind land. 1 Dall. 131.

Upon the whole, we are of opinion that the premises in the-hands of Osburn, a bona fide purchaser withoiit notice, could not be sold by the sheriff to satisfy thg judgment on the recognizance.. Judgment must be entered for the' defendant.


text:
    *David Young v. A. Buckingham et al.
    The erection of a toll bridge is a public use, for which land may be condemned.
    Where the journal of the court of common pleas contains entries showing a regular series of measures condemning l^nds for public uses, it is competent to prove the proceedings in pais by parol, w.here no complete record, is made, and the original papers are lost.
    Oommissioners appointed to appraise lands to be condemned for public uses¡. the concurrence of a majority binds the minority.
    This cause was adjourned here for decision from the county of Muskingum. It was an action of trespass, qucere clausum fregit. Declaration, for breaking and entering plaintiff’s close. Plea, gen- • eral issue, with notice of the special matter set forth in the evidence offered by defendants as hereinfter stated.
    On the trial, the defendants admitted that before and on January 21, 1812, John McIntyre was seized in fee of the undivided? half part of the locus in quo, and continued seized until December 1, 1814, when he conveyed the same to one Noah Zane, who convoyed the same to the plaintiff on January 1, 1823, and that after that time, and before the commencement of this suit, defendants made necessary repairs on the bridge, situate on said - premises as-hereinafter described, and that the plaintiff, therefor, is entitled to recover, unless the special matter offered in evidence by defendants constitutes a defense of the action.
    The defendants then gave in evidence the act of the general-assembly of the State of Ohio, entitled “ an act to authorize Moses Dillon and his asssciates to erect a toll-bridge over the Muskingumriver,” 10 Ohio L. 51, and the minutes of the court of common, pleas of Muskingum county, as follows:
    “August 18, 1813. The petition of Moses Dillon and his asso- • ciates was presented, and ordered that John McIntyre have notice • of the pendency of said petition until Friday morning.”
    “ August 20, 1813. This day the court have appointed Samuel Sullivan, Samuel Thompson, and Seth Adams, commissioners to appraise the land set forth in the petition of Moses Dillon and his .associates, agreeable to said petition. Protest against the same ■filed, John McIntyre having had notice that said petition of M. Dillon would be presented. The appraisers appeared in court and took the oath required by law. And ordered that they report by to-mbrrow morning to this court.”'
    “August 21,1813. This day the commissioners who *were appointed to view and appraise certain lands set forth in the petition of Moses Dillon and his associates, as belonging to John McIntyre, appeared in court and delivered in their report in writing, and the report^ of two of them, viz., Samuel Sullivan and Samuel Thompson, was admitted, and on motion affirmed by the court as a legal report in this case ; and the report is ordered to be filed. And the report of the third, viz., Seth Adams, rejected.”
    The defendants then offered to prove that the said petition and report have been lost or destroyed, and that there is no entry relating thereto in any of the books or records of said court, except the minutes before stated. That the said premises were and continue necessary to the erection and support of said bridge, and that the said petition was filed before the said Dillon and his associates took possession of the said premises, and further offered to prove by parol that the said petition and prayer thereof were in conformity to the said act, and set forth a description of the said premises as necessary for the purposes specified in section 2 • of the said act, and that the commissioners appointed by the court were freeholders, and that the said commissioners, after being .sworn, all proceeded together to value and appraise said premises, and that the said Sullivan and Thompson did appraise the same at the sum of two hundred and sixty dollars,.and the said Adams at the sum of one thousand five hundred dollars, which reports were returned to the court and acted upon by them as stated in the minutes; and that before the said Dillon and his associates entered on the said premises they tendered to the said McIntyre the ,said sum of two hundred and sixty dollars, which he refused to .receive, and that the said Dillon and his associates then proceeded •to erect said bridge, and completed the same within the time limited by the said act, and have ever since maintained the said bridge, and that defendants are the assignees of the said Dillon and his associates; all of which testimony the court rejected.
    The defendants then offered to prove that after the passage of the said act and before the said Dillon and his associates took possession of the said premises, the county commissioners of Muskingum county established a county road over the same, running to and over the river ; that the ^bridge was built by the said Dillon and his associates on the same, and the said bridge has ever since been used as a public highway, subject to the payment of toll to the defendants and those through whom they claim, and that they have ever since received toll from passengers, but-the place of receiving toll is not on the premises claimed by plaintiff, and that a bridge is the best mode of crossing the river at that point, and admitting that the Muskingum river is navigable.
    Which testimony the court rejected, and a verdict was rendered for plaintiff.
    A motion was made by defendants for a new trial on the ground that the testimony offered by them should have been received,., which motion was reserved for decision at the court in bank.
    The defendants contended :
    1. That as the subject matter of the appraisement was of a public- nature, the concurrence of two of the commissioners is sufficient.
    2. The decision of the court of common pleas in accepting the report is conclusive until reversed.
    3. That the establishment of the road by the county commissioners, and the act of the legislature, authorized the erection of the bridge and the taking of toll.
    4. That the erection of the bridge is not inconsistent with the-public right of way, but a furtherance of it.
    5. That the use of the highway for so long a period gives a ■ right of way which the owners of the fee can not question.
    6. That as the original grantees were in possession of the bridge before the title of the plaintiff accrued, the action of trespass can not be maintained.
    Stillwell, for defendants.
    Goddard, for plaintiff.
   Judge Lane

delivered the opinion of the court:

*The subjects of evidence offered by the defendants profess to be a proceeding of the court of common pleas of Muskingum county, carrying into effect the provisions of a statute, entitled “ an act to authorize Moses Dillon and his associates to ■erect a toll-bridge over the Muskingum river,” 10 Ohio L. 51, by which the right to use the land in question, then owned by McIntyre, was given to Dillon, in the erection and occupancy of a toll-bridge. The form, consequently, which the objection must assume, is, either that no authority is shown to appropriate the land to this purpose, or that this authority has been so defectively executed that no such appropriation is made.

That the legislature may lawfully create the franchise of erecting a toll-bridge we have no doubt. It is as much an object of pub- . lie concern as a turnpike road or a highway. It follows that 'private property, if necessary for this purpose, maybe taken from the owner, due provision being made for his compensation.

Section 2 of the statute is designed to secure the rights; of the proprietor of the land. ' It is there provided, that on the petition • of Dillon to the court of common pleas, a valuation of the property necessary to be taken shall be made by three commissioners, whose report shall be entered of record in the office of the clerk, .and the amount paid, before the property shall be appropriated to the use of the bridge.

The first objection made to the form of the proceedings is, that “ it has never been entered of record.” The original petition and report are not to be found, and no entry of proceedings has been made, except upon the journals of the court; and the question now made is whether the journal of the court is a record, so that entry there will satisfy this requisition. It is said that a distinct record of all the proceedings, in relation to this application, shall be made on the “complete records ” of the court; that the judgment book in England is not evidence. 5 B. & P. 474. This question, in our opinion, must be determined by the practice in our state. By our statute, the journal of courts is required to be kept, and in providing that acts of the court are of no validity, until entered there, it is implied that an Gentry on the journals is all that is indispensable to make an act of the court effectual. Hence judgments are good before the complete record is made; and- in the practice of many clerk’s offices, no complete record is deemed necessary, except of litigated suits. The only evidence of the doings of the court, in this case, is found in the journals. It is true that the entries in the journal are not any part of the record in the case, 1 Ohio, 268; but the book is one of the records of the court, containing the necessary materials to make the complete record, and when all is done to authorize the recording officer to record, it is in law considered as recorded, although the manual labor of writing it in the book, kept for that purpose, has not been performed.” 4 Ohio, 83. The objection, therefore, in our opinion, is not sustained. The proof offered shows the action of the court, in a matter over which they possessed jurisdiction, and consequently must not be collaterally questioned in another person. 1 Pet. 540.

The statute requires that the land shall be valued by three freeholders, and the assessment paid, before it can be taken for the bridge. The proceedings of the court show the valuation made and the amount tendered, but that although all the appraisers were present and acting, that two only united in the appraisement. It is objected that the dissent of one invalidates the appraisal, for it is insisted that a strict execution of powers must be shown. 3 Johns. Cas. 107; 1 Burr. 377; 4 Burr. 2244; Cowp. 26; 7 Term, 363. The determination of this point depends upon the nature of the powers to be executed by the commissioners. In the execution of a power delegated for purposes merely private, it is necessary .that all should concur in the act; as in cases of trustees, arbitrators, etc. But if the persons be intrusted with powers in some respects of a general nature, or for public objects, if all are acting, a majority will conclude the minority, and their act is the act of the whole. Co. Lit. 181; 6 E. B. & E. 228; 6 Johns. 39. It is evident that this power was confided to these commissioners for public objects, since the taking the land from McIntyre can be justified upon np other ground than that it was demanded by public interest.

*It is further objected that the law, section 2, requires notice to be given to the owner or owners of the land proposed to be taken, and that the case shows notice to McIntyre only, who held but an undivided moiety. But the plaintiff holds the estate of McIntyre, and is bound by what bound him; and it is plain he sustained no injury, since his interest was the subject of appraisal; and especially has he little cause to complain, if, as is possible, he was taken to be the sole owner of the land.

¥e are satisfied the evidence was-improperly rejected ; and that a new trial be granted, the costs of which must abide the event of the suit.


text:
    The Commissioners of the County of Clermont v. Samuel Robb and James Ferguson.
    Appeal lies to the court of common pleas from the decision of the county commissioners, on a contract to erect a bridge.
    “When, upon appeal, the court order money to be paid, that order must be directed to the auditor, not to the commissioners.
    Question, whether the terms of a contract are dependent or independent, to be determined upon evidence, showing the contract and the intention of the-parties.
    This is a certiorari to the court of common pleas for the county of Clermont. It appears from the record that the commissioners of that county, and Robb and Ferguson, on December 8, 1829, agreed that Robb and Ferguson should find the materials for, and construct a bridge across the east fork of the Little Miami river, at Batavia, in that county, according to a plan delivered to them by the commissioners; that the bridge should be completed in a workmanlike manner, by December 25, 1830, for which the commissioners agreed to pay them twenty-eight hundred and thirty-three dollars, in three equal installments; the first, on the first Monday of March, 1830; the second, on the first Monday of June next after, and the third, on the completion of the bridge, on December 25, 1830. Robb and Ferguson, at the time the contract was made, gave a bond,.with security, to the commissioners to perform it. The construction of the bridge was publicly let to the lowest bidder,; Robb and Ferguson took it ás the ^lowest bidders. The commissioners paid Robb and Ferguson the first and second installments, and a small part of the third. Robb and Ferguson completed the bridge, as they alleged, according to their contract, and, at the instance of the commissioners, furnished some materials and did some work on the bridge not within the contract, after which, and after December 25, 1830, the commissioners met to examine the bridge and to receive and determine the account of Robb and Ferguson for constructing it. When the commissioners had so met, Robb and Ferguson presented to them their account for the balance of the third installment, and for the additional materials and work, amounting together to more than nine hundred dollars, which the commissioners refused to allow ; from this - decision of the commissioners, Robb and Ferguson appealed to the court of common pleas for that county, and gave the notice and bail required by the statute to perfect their appeal.
    At the April term of the court of common pleas, 1830, the next term after the appeal was taken, the cause was heard by the court, and the court allowed the account of Robb and Ferguson for the balance of the third installment and for the additional materials and work together (nine hundred and sixty-three dollars and sixty-five cents), and ordered that the commissioners should, within twenty days, on the demand of Robb and Ferguson, deliver to them an order drawn on the county treasurer in their favor for that sum. On the trial, the commissioners moved the court to dismiss the appeal because the cause was not appealable, which was overruled.
    The court also determined that the agreement of the commissioners to pay the third installment was not dependent on the completion of the bridge according to the contract, but an independent agreement, and, without other evidence than the contract, ordered the balance unpaid on the third installment to be paid. To these opinions of the court the commissioners excepted, and made the contract a part of their bill. To reverse these proceedings this writ is brought. It is submitted without argument.
    Fishback, for commissioners.
    *T. Morris, for Robb and Ferguson.
   Collet, J.,

delivered the opinion of the court:

The act establishing boards of commissioners, 22 Ohio L. 263, and the act defining the duty of county auditors, 22 Ohio L. 267, were in force when these proceedings were had. By section 12 of this last-named act it is made the duty of the county auditor to allow all demands justly chargeable to the county, except such as are by law to be allowed by the commissioners or the courts of the county, and to draw orders on the county treasurer for all sums allowed by himself, or the commissioners, or the courts. By section 7 of the first-mentioned act, the commissioners are authorized to contract for the building or repairing of bridges, and the auditor is forbid to draw on the county treasurer for the payment for anything done to a bridge under such contracts until the commissioner’s order him to do so. Section 21 of this act provides, That if any person or persons shall conceive him or themselves injured by the decision of the commissioners in any case, such person or persons may, within fifteen days, appeal to the next court of common pleas,” etc., and the said court shall, at their next session, hear and determine the same.” By section 7 the •commissioners are required to decide on the claims of persons who have built a bridge under a contract with them; and by section 21 of the same act, an appeal is given in all cases from the decision of the commissioners. We can see no reason to doubt the right of Eobb and Ferguson to take this ajjpeal.

The court erred in the manner in which they made the order for payment. The auditor is required to draw orders on the county treasurer for all sums allowed by the court; after the appeal, the right to determine on the claim of Eobb and Ferguson was vested in the court. When they determined, it became the duty of the auditor to draw on the county treasurer for the sum the court allowed to be due from the county. The order of the •court, therefore, should have been to the auditor, and not to the commissioners.

*As to the opinion of the court that the agreement of the commissioners to pay the third installment was independent, and not dependent on the completion of the bridge, and in consequence adjudging them to pay that installment without other evidence than the agreement, it seems to us that there is error here. Whether an agreement or covenant is dependent or independent is determined by ascertaining from the contract or contracts the intention of the parties; there is nothing technical in it. 1 Wheat. Selw. 94,388; 1 Ohio, 330. The parties have a right to make their agreements dependent or independent, and as they make them the courts are bound to enforce them. Our constitutions forbid •the legislature to vary or impair the contracts of parties. In the case of Cunningham v. Morrell, 10 L. R. 205, the court say, “A mechanic generally stands in need of advances from time to time in aiding him to procure materials to carry on his work, and the employer, if prudent, will generally reserve a considerable payment until the work be completed, and to depend on its completion. But if all these payments can be demanded without performance, merely because a part of them-were to be made as the work advanced, it would be making the intention of the parties subservient to technical rules.” In this case the commissioners, in December, 1829, proposed to have a bridge of a particular description built by December 25, 1830; that they would advance one-third of the price by the first Monday of March, as early as the bridge could be commenced ; one-third more on the first Monday of June, before there would probably be a stone laid toward the erection of the bridge. These two payments were to be made without regard to the progress of the work. The remaining third was to be on the completion of the work on December 25, 1830, the day on which the undertaker was, by the contract, to have it completed. Why say, they would pay on that day, on the completion of the bridge, if they intended to pay on that day if it were not completed ? The commissioners proposed to advance liberally to the undertaker; they did advance nearly two thousand dollars; they could not tell who would be undertaker until the bidding closed. To secure the county, they'wisely required of him, whoever he might be, bond *and security well and sufficiently to construct the bridge. They also prudently provided that one-third of the price should not be paid until the bridge was completed. The court should have heard the evidence as to the completion of the bridge, and the manner in which it was completed before they decided; and have allowed such sum on that hearing as would have been just between the parties, regarding the contract. Wheat. Selw. 58; Bull. N. P. 139.

The judgment must be reversed, and the cause remanded to the court of common pleas for further proceedings.