author: Hitchcock, J.

text:
    The State of Ohio v. The Franklin Bank of Columbus.
    Bank shares are the individual property of the stockholders, not the property of the corporation, unless purchased in payment of debts..
    Under the act of 1831, to tax banks, etc., the state is entitled to five per cent, upon dividends subsequent to the 1st of April of that year, regardless of the time when the profit so divided accrued.
    Uo judgment can be rendered against the state.
    In a civil action by the state, the defendant may set off a debt due to him from the state.

      This is an action of assumpsit, upon an agreed state of facts, from the county of Franklin.
    On May 2, a. d. 1825, the defendants declared a dividend of $3,517.42, and on the 7th of November of the same year, they declared a dividend of $2,863.70, both sums amounting to $6,381.12. When the dividend first aforesaid was declared, William Neil, then cashier, held, as trustee for said bank, stock upon which a dividend of $1,374.75 was declared, as part of said sum of $3,517.42. Previous to said first dividend, this stock had been bona fide transferred 92] to the bank *in payment of debts, and Neil was a naked trustee for the bank, merely for the purpose of transferring the stock in case it should be sold. When the dividend of the 7th of November was declared, this same stock, still held, in the same manner, had a dividend of $1,069.25, making the two dividends upon said stock $2,444. Upon this sum the bank paid no tax at the time, but the same was carried to the account of profit and loss, and was subsequently divided, and when so divided, tho tax accuring thereon was paid, the tax required by law being the same as when the dividends of May 2 and November 7, 1825, were made.
    The state now claims $97.76, being a tax of four per cent, upon $2,444, the amount of the two dividends upon the stock so held by Noil in trust for the bank.
    On May 1,1831, the defendants declared a dividend of $5,719.60. On this dividend the bank paid a tax to the state, estimating the same at the rate of four per cent, up to April 1,1831, and five per cent, from that time up to the time the dividend was declared. This mode of computation was submitted to the then auditor of state, who made no other or further demand, nor was any objection made to the mode of computation until October 1,1839. The state now claims the further sum of $47.66, being the difference between the tax actually paid and the true tax upon the dividend of May 1, 1831, calculating the same at five per cent, on that dividend.
    If the court shall be of opinion that the plaintiff is entitled to recover upon both or either of the foregoing claims, then the defendants insist upon their right to set off a claim in their favor against the state, growing out of the following state of facts:
    Previous to May 7, 1832, the defendants sold $63,480 worth of stock at a premium above the par value of $10,160, which was paid to the stockholders in proportion to the amount of stock by them held at the time of sale. On said 7th of May, they declared a dividend of $9,122.40, on which they paid a tax of five per cent. The auditor of state further *drew upon the bank for five per [93 centage, on $10,160, the amount of premium on stock sold. This percentage, amounting to $508, was paid by thebank,not admitting, however, that it was just claim on the part of the state, and in no way conceding that they were bound to pay, unless it could be inferred from the circumstance that they reported to the auditor of state the fact that they had received and distributed among the old stockholders this amount of premium upon new stock sold. The defendants now claim that they have a right to recover this sum from the state, and that, at any rate, if the court can not render a judgment in their favor against the state, still, that so much of this sum shall be set off as shall be sufficient to balance any claim which the state may have against them.
    Swayne & Backus, for the plaintiff.
    G. Swan, for the defendant.
   Hitchcock, J.

The first item of claim by the state in this case is the sum of $97.76, being four per cent, on' two dividends declared in 1825, upon stock standing in the name of William Neil, but which was holden by him merely in trust for the bank, having been received by the bank in payment of debts. The amount of these dividends thus made upon the stock of the bank was $2,444. Had the case stopped here, no reason is perceived why the state would not have been entitled to the amount claimed. But it is shown that these dividends were carried to the general account of profit and loss, and subsequently divided, and that upon such subsequent dividend, the tax of four per cent, was paid to and received by the state. It having been once paid, it is not seen upon, what principle of law or equity payment can be again required.

The second item of claim is the sum of $47.66, upon a dividend made by the bank on May 1, 1831, of $5,719.60. Hpon this dividend the bank paid a tax, estimating the same at the rate of four-per cent, up to the 1st of April of that *year, and at five per [94-cent. from the 1st of April to the 1st of May, when the dividend was declared. This mode of computation was acquiesced in by the then officers of the government, but as the object of the parties seems to be to obtain the opinion of the court upon the point of law, it is not claimed that this acquiescence is binding upon the' state. It is insisted, on the part of the state, that, by the law taxing banks, she was entitled to five per cent, on this dividend. The decision of the question depends upon the construction of the act of March 12, 1831, to tax banks, insurance, and bridge companies.. 29 Ohio L. 302.

Previous to the passage of this act, by the law of February 1825, a tax of four per cent, was levied upon all subsequent dividends of banks. 2 Chase’s L. 1463. Th.is law continued in force until March 12, 1831, when another act upon the same subject was passed. This law of 1831 not only levied a tax upon banks, but upon bridge and insurance companies. By its provisions,-the board of directors of every bank, insurance, or bridge company are required, by the 1st day of October then next, to cause to be transmitted to the auditor of state a correct statement of all div-, idends made by such bank, insurance, or bridge company at any time after the 1st day of April then next; “ and a statement of each and every subsequent dividend made or declared by such coi'poration, made out, signed,” etc., “ shall be forwarded to the auditor of state within ten days after such dividend shall have been made,” And the auditor of state, on receiving such statement, is directed immediately to draw on such corporation in favor of the treasurer of state for the amount of five per cent, computed on the dividend so certified.” In the second section, it is enacted that if any of said companies shall refuse to make such-statement as is required, or shall refuse or neglect to pay any draft drawn by the auditor of state, for the amount of tax due to the ■state, such company shall forfeit and pay any sum, not exceeding. •$1,000, to be recovered by action of debt in the name of the State* of Ohio, There is no room in the phraseology of the act, so far 95] *as the amount of tax is concerned, for construction. Upon* all dividends declared subsequent to the 1st day of April after .the passage of the act, this amount is five per cent. 29 Ohio L. 302. The dividend in the case under consideration was declared •on the 1st day of May. By the terms of the law then, it was subject to this tax of five per cenL On the part of the defendants, it is urged that the object being to tax the profits of banks, and .as, up to the 1st of April, the tax on these profits .was four per cent., therefore, it was proper to compute at this rate so long as .the former law remained in force, and to compute at the rate of five per cent, from the time the new law took effect. There is no doubt. that under both laws the object was to tax the profits, but under neither law did the tax attach nor become due until these profits were divided, The tax is upon the dividends of bank, insurance» and bridge companies. And although at the time a dividend may be made, there are large surplus profits remaining on hand, these profits are not taxed. And should they be counterbalanced by losses, before another semi-annual dividend, the state would derive no revenue from them.

■The only doubt, it seems to me, which can arise under this statute, grows out of the proviso to the repealing section. That proviso is in these words: “ That all banks and insurance companies, from which there may be due any taxes, or any per centum on undeclared dividends, on the 1st day of April next, shall be chargeable for the same, and account therefor, in the statements which they are required to make, to the auditor of state, by the provisions of this act.” And here the only difficulty is as to what is meant by “ undeclared dividends.” The only sensible construction which can be given to the phrase is, that it refers to dividends in fact made, but not declared or published. This proviso was introduced from abundant caution. As the former law was repealed, it was done for the purpose of declaring that taxes already due should not be thereby remitted, but should be drawn for by the auditor, as other taxes were to be drawn for under the act then passed,

*Upon a careful consi deration of the subject we are brought [98. to the conclusion, that under the act of 1831, the defendants were bound to pay to the state a tax of five per cent, upon the dividend of May of that year, and that there is, therefore, a balance of. 847.66 "due, as claimed by the plaintiff.

We are next brought to the consideration of the claim preferred by the defendants. This is, to have refunded to them the sum of 8508, improperly drawn from them by the auditor of state, as a tax of five per cent, upon a premium of 810,160, received upon the sale of bank shares, upon an increase of the capital stock of the bank. This increase and.sale took place previous to May, 1832, and was reported to the auditor on the 10th day of that month. We are here met by the objection, that this payment having been voluntarily made, the defendants would not in an ordinary case have any legal right to recover it back. Had this objection been persisted in, there might perhaps have been some difficulty in the case. If the draft for this per centum was improperly drawn, the defendants were certainly under no obligation to pay. But still the penalties imposed by the law for not paying a draft properly drawn, are perhaps such as to justify us in holding that this could not be considered strictly as a voluntary payment. It would seem that the bank never intended to acquiesce in the propriety of the demand made for a tax upon this premium. But we are relieved from any difficulty on this account. Although the objection is suggested, the counsel for the state very properly, in effect, waive any advantage that might be derived from it, and submit to the court the naked question, whether this premium was, under the law, a proper subject of taxation.

If this premium, as distributed among the old stockholders of the bank, comes properly within the meaning of the term dividend, as used in the statute, then it was subject to the tax. By the act of February 23,1816, “ to incorporate certain banks therein named, and to extend' the charters of existing incorporated banks,” 2 Chase’s L. 913, it is provided in section 27, “ that the dividends 97] of the profits of each of said corporations, *or as much thereof as shall be deemed expedient and proper, shall be declared half-yearly on the first Monday in May, and November, in each year; the amount of said dividends shall be determined from time to time by the president and directors of each corporation, in a meeting held for that purpose,-and shall in no case exceed the amount of net profits actually acquired by the corporation, so that the capital stock shall never be impaired by dividen Is.” By this provision it is manifest that it is the profits of the business, carried on by the corporation, which is to be divided. The profits made by the use of the corporate property. And it is upon these dividends that the law already cited, to tax banks, insurance and bridge companies, is intended to operate. This tax is to be paid by the bank out of the corporate property, and not by the several stockholders, after the profits shall have been divided.

The question then arises, whether bank shares, or, in common parlance, bank stock, is corporate property, and whether they constitute a part of the capital stock of the bank. There may be some difficulty in drawing the line of distinction between what is, and what is not, corporate property. As a general rule, however, that property which is under the control of the corporation, or which may be sold for the payment of its debts, is corporate property. It is true, that in this property all the members of the corporation have an interest; but it is a joint interest, and they have no control over it, except in the manner specified in the act of incorporation. Money paid in upon a bank share, or, in other words, upon a share of bank stock, becomes corporate property, and may be disposed of in payment of the debts of the corporation, or in any other legitimate way.' So lands or any other property received in payment of debts become corporate property, and, if sold at an enhanced price, there is so much addition to the profits of'the business. So bank shares may, by an individual stockholder, be transferred to the bank in payment of a debt, and when so transferred, become the property of the corporation, and, it is believed, that this is the only legitimate way in *whieh [98 a banking corporation can, as a corporation, become interested in its own stock. And even the propriety of this mode of acquiring property in stock has been seriously questioned. But the corporation has no control over the shares of its stock belonging to its individual .members, unless it be as to the mode of transfer. These shares can not be appropriated to pay the debts of the corporation. They are as much the individual property of their holder, as are his houses or his lands. If this stock is above par value in the market, it is the gain of the stockholder, and not of the corporation. If it is below par, it is the loss of the stockholder. The value of stock, it is true, will depend upon the condition of the corporation, but the corporation, so far as its own property is concerned, is not affected by that value.

If there could be any doubt upon this subject, it must be removed upon an examination of the laws incorporating the banks of this state. Take, for instance, the law before referred to, incorporating certain banks, etc. (2 Chase’s L. 930), by virtue of which the Franklin Bank of Columbus is incorporated. The first section provides, that “a bank shall be established at Columbus, in the county of Franklin, and those who shall become stockholders in the said bank in the manner hereinafter prescribed, their successors and assigns, shall be and are hereby created a body corporate and politic, by the name and style of the president, directors, and company of the Franklin Bank of Columbus.” Those who should afterward become stockholders would constitute the corporation, and the interest of each stockholder in the common property of the corporation, would depend upon the number of shares of stock which he might hold. In section 7 it is provided, that the capital stock of the bank shall consist of $100,000, to be divided into 1,000 shares of $100 each. By the same section, commissioners are appointed to superintend the subscriptions of stock, who are to have the management of the concern until the corporation is organized by a choice of officers. By section 9 it 99] is provided, that so soon as 600 *shares are subscribed, it shall be lawful for the bank to commence business. It will be seen from this that the subscription of stock preceded the organization of the corporation, and that the shares of stock are different from the capital stock itself. This capital stock is, in fact, the amount paid in upon the shares subscribed. By section 30 of the act, provision is made “that the stockholders in each of said banks may, at any time hereafter, augment the capital stock of the bank in which they may be stockholders, to any amount not exceeding $500,000, at a special meeting called for that purpose; two-thirds of all the votes being given therefor, under such regulations, restrictions, and conditions as they shall at such meeting judge proper. The stock being thus increased, would no more belong to the corporation than would the stock originally created. Before there could bo any increase there must be a general meeting of the stockholders, and a vote of two-thirds of those present in favor of the measure. Such increase would be an increase of the amount of capital upon which these stockholders, as a corporation, had been doing business. And as they had an interest in the original capital stock, in proportion to the shares by them severally holden, so they would have an interest in this increased capital. They might either retain the increased shares of stock themselves, upon the payment of such installments as might be called for, or they might direct the bank to dispose of them upon such terms as they thought proper. In the ease before the court, this latter mode was adopted. It is admitted by counsel, if the original stockholders had apportioned this stock among themselves, as they well might have done, and then transferred it to others, that the state could have had no claim in consequence of the premium. If so, and in this we agree with counsel, we do not perceive how the state can have any .claim when the bank, in its corporate capacity, has sold this stock for the stockholders, who were its legitimate owners.

This premium was not divided among the stockholders, as ordinary profits are divided. It was distributed among- those .*who had been stockholders at the time the capital was in- [100 creased, and was in effect the same as a price paid to them by those who purchased the new stock, for the privilege of coming into what was considered to be a profitable concern. In any view which we can take of the case, it seems to us that the tax upon this premium was improperly demanded, and, that having been paid, it should be refunded.

Such being the opinion of the court, we are requested to render • judgment against the state for the balance due. This we can not do. But under the agreed case we are authorized to set off so .much of this amount which is due from the state to the bank, as will be sufficient to balance the claim $47.66, which is done accordingly.


source: Caselaw Access Project

author: Lane, C. J.

license: Public Domain

text:
    Amelia Fahs, Administratrix of Casper Fahs, v. James Taylor and others.
    A judgment against a corporation, where process was served on individuals who are not called officers, can not he impeachod by a stranger, in a suit in chancery in which the corporation, the stockholders, and the individuals served are parties, and who make no objection, no fraud or collusion being charged.
    Chancery will not set up lapse of time against a claim where an action of debt for its recovery would not be barred by the statute of limitations.
    This is a creditor’s bill, from th.e county of Hamilton.
    *In 1831, Frances Carr, administratrix of Henry Hafer, [105 brought a suit, for the use of the complainant, against the bank. The writ commanded the sheriff to summon “ the president and directors of the Farmers and Mechanics’ Bank of Cincinnati.”
    The sheriff returned, “ Summoned, by copies left at their dwellings, Longworth, Cranmer, Wheeler, McFarland, and Williams, Southgate, not found.”
    There was a judgment by default.
    In 1835, the complainant filed this bill, making the executor of Carr, the administrator of Hafer, the bank and such of its stockholders as she can discover, and James Taylor, defendants. She states the bank has no property to satisfy her judgment, and prays that Taylor, whom she avers to be largely indebted to the bank, may be compelled to pay her judgment out of the money he owes the bank.
    Taylor, in his answer, denies the validity of the judgment, and he asserts that the bank ceased to do business in 1822; that he does not and did not owe the bank; and he claims the benefit of the lapse of time and the statute of limitations.
    As to the other defendants, the bill stands for a decree pro confesso.

      Fox, for the plaintiff:
    It is a settled rule of this court that a judgment of a competent tribunal can not be treated as a nullity. Weyer v. Zane, 3 Ohio, 306; Buell v. Cross, 4 Ohio, 327; Douglas v. McCoy, 5 Ohio, 522.
    Admitting the right to avoid a judgment, by showing that the party was not served with process, yet that is a personal privilege and can not be used by a stranger. This objection is purely technical, and may be answered by technicality. The return, on the writ, shows that the party really was served by copy. The rest may be rejected as surplusage.
    As to the act of limitations, it is enough to say that an action of debt might be sustained; and equity will not interpose a bar where a recovery may be had at law.
    *Starr and Wright & Walker, for the defendant:
    No decree can be rendered against Taylor unless the complainant shows a valid judgment against the bank. No such judgment is shown. The supposed judgment is a nullity. It may be set aside at any time. The bank had no day in court. The service "of process against the bank, upon certain individuals named in the return, no more warranted a judgment against the bank than if it had been returned served on John Doe and Richard Roe.
    Process against a corporation must be served upon its head officer; service upon a private individual of a corporation is not sufficient notice to hold the corporation to trial. Angelí on Corp. 383.
    Lapse of time and the statute of limitations are a protection to Taylor. He can not be deprived of their benefit, because a particular form of action at law (the result of mistake in legislation no doubt) could be adopted by the bank, if it had a legal existence, to recover the supposed debt. It does not follow that the complainant shall have a decree in equity for the debt alleged to be due from Taylor to the bank, because the bank might by possibility institute an action of debt against him, which he could not resist with success, by pleading the statute of limitations.
    It is not necessary for him to make out a technical bar, under all and every statute of limitations, in the same manner as if he were sued in an action at law by the bank, in order to avail himself of the effect of lapse of time against the complainant. He is protected upon the general principles of equity. 1 Story’s Eq. 502, 503; Piatt v. Vattier, 9 Peters, 405.
   Lane, C. J.

The objection to the judgment is, that the process was issued against the corporation, and appears to have been served on certain individuals; and that it nowhere appears that they are officers of the institution.

There is an irregularity in the service of this writ, for which the judgment would perhaps be reversed on error. But in a suit, resting on that judgment, to which the bank as a ^corpora- [107 tion, some of the individuals on whom process was served, and some of the stockholders of the institution, are parties; all of whom acquiesce in the judgment. It seems to us that a stranger, who makes no charge of fraud or collusion, is not permitted to in* termeddle with the relation of the parties, or question the regularity of the proceedings

The ground next taken in defense is, that Taylor is protected by the statute of limitations, or that the lapse of time will, in equity, forbid a recovery of debts due at least in 1822.

This objection admits two answers:

The claim of the bank against Taylor might have been collected by an action of debt, which the statute of limitations has not yet barred; and chancery adopting the statutory time of limitation, would not hold a right of recovery extinguished.

But the transactions of 1833 seem not only to prevent the operation of the statute, but to repel any presumption arising from the lapse of time. For then, in this court, in a suit brought by Byrans against Taylor and the bank, reported in Wright, 245, the indebtedness of Taylor to the bank was found, in the course of judicial inquiry. The bank might well avail itself of this investigation, and the same benefit ought to inure to its creditor, pursuing its rights in its name.

The decree may find that the complainant is entitled to have her judgment satisfied out of any debt which Taylor may owe the bank, and the case may be referred upon the usual terms to the master, to take an account of the extent of his indebtedness.

Decree for the complainant.

      A judgment in the circuit court of the United States can not be made the foundation of a creditor’s hill in a state court. Judgments of the courts of the United States in this respect stand upon no higher ground than the judgments of the courts in sister states. Tarbell v. Griggs, 3 Paige, 207.


text:
    The Milford and Chillicothe Turnpike Co. v. Henry Brush.
    A subscription, of stock in the books of a turnpike company can be collected by suit.
    Upon a promise to pay to the “ president and directors of the Milford and Chillioothe Turnpike Company,” a suit may be maintained by the “ Milford and Chillioothe Turnpike Company,” the latter being the true name of the corporation.
    This is an action of assumpsit from the county of Boss.
    The caso- was submitted to the court upon evidence and ed Agreed state of facts.
    On February 11, 1832, the legislature of Ohio passed a law incorporating several individuals, by the name and style of the “Milford and Chillicothe Turnpike Company.” The object of the incorporation was to construct a road from Milford, in the county of Clermont, to Chillicothe, in the county of Ross, “on the nearest and best route.” Upon accepting the act, the individuals therein named were authorized to open books of subscription for stock in places specified, and so soon as a certain number of shares was subscribed, the stockholders were authorized to proceed and organize by the election of officers. It was provided in the charter that, unless work was commenced on the road within three years, the privileges granted should cease. This charter was accepted by the corporators, and, on April 7, 1832, the company was organized, and books of subscription opened. In these books of subscription the form adopted was as follows: “ We, whose names are hereto subscribed, do hereby bind ourselves, our heirs, executors, and administrators, unto the president and ^directors of the Milford and Chillicothe Turnpike Company, [112 who may hereafter be appointed agreeably to an act entitled an act to incorporate the Milford and Chillicothe Turnpike Comjtany, passed February, 1832, to pay unto the said president and directors the sum of $50 on each share of stock we respectively subscribe in said company, to be paid in such installments or requisitions as may, from time to time, be made and required by the said president and directors, agreeably to the provisions of said act.”
    The defendant subscribed four shares of stock, equivalent to $200. No work was commenced on the road within the three years, but on March 5, 1835, the general assembly, by an amendatory act, gave three years further time within which to-commence, and, by this latter act, Bainbridge, i.n the county of Ross, and Hillsborough, in the county of Highland, are made-points in the road. And, it is further provided, “that, where practicable, the road shall in no case exceed an angle of two degrees with the horizon.” By the former act the angle was four and a half degrees.
    The suit is'brought for seven installments upon this subscription, the last of which fell due on July 21, 1836.
    The case was argued at great length, and with much ability, by Thurman and Taylor, for the plaintiff, and by Brush and. Leonard, for the defendant.

      The points relied on as defense to the action were :
    1. That the subscription was a nude pact, as no engagement was or could be made by the company so as to create mutual engagements.
    2. The contract is not with the plaintiffs, but with a “ president and directors ” thereafter to be chosen.
    3. If any suit can be maintained upon the instrument, it could only be by and in the name of said “president and directors.”
    4. The defendant was released from his subscription in consequence of the change, by the amendatory act, of the route of the road and also of the grade.
    113] *5. The defendant was released from the obligation of his subscription by the failure of the corporation to commence work upon the road within three years after the passage of the original act of incorporation.
    The defendant’s counsel
    cited Middlesex Turnpike Co. v. Swan, 10 Mass. 393; Jenkins v. Union Turnpike Co., 1 Caine’s Cas. in Error, 85.
    On the part of the plaintiffs,
    these cases were cited: Webb v. Moler, 8 Ohio, 548; McIntyre Poor School v. Zanesville Canal and Man. Co., 9 Ohio, 203 ; Penn, and Ohio Canal Co. v. Webb, 9 Ohio, 136 ; Reynolds v. Rogers, 5 Ohio, 169; Holbrook v. Finney, 4 Mass. 566; Foster v. Essex Bank, 16 Mass. 245; Chester Glass Co. v. Dewey, 16 Mass. 94; Currie v. Mutual Assurance Soc., 4 Hen. & Munf. 315; Dutchess Cotton Man. Co. v. Davis, 14 Johns. 238; Goshen Turnpike Co. v. Hurtin, 9 Johns. 217; Hendel v. Berks Turnpike Co., 16 Serg. & Rawle, 92 ; Mayor of Lynne’s Case, 10 Coke, 123; Culpepper Soc. Digges, 6 Rand. 164; Gilmore v. Pope, 5 Mass. 491; Road Co. v. Creeger, 5 Harr. & Johns. 122; Pendleton v. Bank of Kentucky, 1 Mon. 171; African Soc. v. Varick, 14 Johns. 38.
   Hitchcock, J.

The plaintiffs in this case having shown the act •of incorporation, the acceptance of that act, the opening of books of subscription, the subscription by the defendant, and the calls made for installments on the stock so subscribed, make out a prima facie case, and right of recovery, unless the points of defense raised by the defendant are such as to defeat that right.

The first objection made by the defendant to the right of action ,is, that the subscription is a nude pact, as no engagement was or could be made on the part of the company so as to create mutual engagements. This exception is founded in part, if not principally, upon the hypothesis that there was no corporation in existence at the time the subscription was made. But this is a mistake. By the second section of the %ct of incorporation, [114 the company, that is, the individuals named in the act, or “so many of them as choose to do so, by written articles of association,” are authorized to organize themselves, and open books of subscription. 30 Ohio L. 239. Such organization was had before the books were opened, whereby the act of incorporation was recognized and the company became a body corporate. Tinder these circumstances there was sufficient mutuality in the contract, and the subscription obligatory on the defendant. Goshen v. Turnpike Co. v. Hurtin, 9 Johns. 217; Dutchess Cotton Man. Co. v. Davis, 14 Johns. 238.

But even should it be considered that the act of incorporation did not take effect until the company was organized by an election of officers by the stockholders, still we should hold that the subscription would be binding. A sufficient consideration would be found in the anticipation of profits in tolls to be received from those using the road.

The next objection is, that the contract was not with the plaintiffs, but with a “president and directors ” thereafter to be chosen or appointed. There can be no doubt as to the intent of this contract. The object of the subscription was to aid “ The Milford and Chillieothe Turnpike Company ” in the construction of a road. The object being well understood, the subscription can not be avoided on account of a mistake made in the corporate name, and the contract will operate in favor of those for whose benefit it was intended. Commissioners of the Canal Fund v. Perry, 5 Ohio, 56. By this subscription, informal though it might have been, the defendant became a stockholder in the company, entitled to all the privileges and immunities of any other, and like any other stockholder is bound to pay according to the legal effect of his subscription.

Another objection made by the defendant is, that the suit, if sustained at all, must be in the name of the “president and directors of the Milford and Chillieothe Turnpike Company.” If we are correct in supposing that this contract is, in law, a *con- [115 tract with the “ Milford and Chillieothe Turnpike Company,” then the suit is properly brought in the name of that company. Comm’rs Canal Fund v. Perry, 5 Ohio, 56.

It is next claimed that the defendant was released from the obligation of his subscription by the change made, by the amendatory act, in the route and in the grade of the road.

That there might be such change made in the route of a turnpike road as to exonerate those who had previously subscribed for its construction will not be denied, but that every trifling change, so long as the termini remain the same, will have this effect, can not be admitted. By the original act of incorporation, the line of the road is to be “on the nearest and best route ” between Milford, in the county of Clermont, and Chillicothe, in the county of Boss. By the amendatory act, the termini of the road remain the same, but Bainbridge and Hillsborough are made points in the route. Now, whether here is in fact any change in the route does not appear. From anything before the court these two places may be actually on the line of the “ nearest and best route.” As a matter of fact we know that they are, if not exactly, very nearly on a line from Milford to Chillicothe. It still remains to be shown that there has been any material change in the route of the road, and until it is shown this court will not presume it. So far as respects the angle of the road with the horizon, it will be found that there is nothing in the amendatory act absolutely compulsory. If the nature of the ground be such that it be practicable to reduce this angle to two degrees, it must be done; if not, the road may be constructed at a greater angle, not however, in any event, to exceed four and one-half degrees.

It is again claimed, that the defendant is discharged from- his subscription in consequence of the failure of the corporation to commence work upon the route within three years next after the act of incorporation was passed.

Section 18 of the act is as follows : “ If said company shall not, within three years from the passage of this act, proceed to carry on 116] said work, or shall not, within ten years thereafter, ^complete thirty miles of said road, according to the true intent and meaning of this act, then, and in either of those cases, all the rights, liberties, and privileges granted by this act shall cease." , It is contended by the defendant that the true intent and meaning of the words,' “ carry on said work,” is, that the corporation shall actually commence operations upon the road by manual labor, while a different construction is insisted upon by the plaintiff. We apprehend) however, that it is not necessary, for the purposes of this ease, definitively to determine what is the true construction of the phrase. Assuming for present purposes that the defendant is correct as to the construction, how stands th*e case ?

The first step to be taken was to organize the company that it might take the benefit of the act. Being so organized it became a body corporate and politic, a corporation possessed of all the powers, rights, liberties, and privileges granted by the act by which it was created. So long as it complied with the requisitions of its organic law, it would not be divested of any of these powers, rights, liberties, or privileges. In consideration of these powers, rights, and privileges granted, it had certain duties to perform. One of these was to commence work upon the road within three years. This was not done, and what is the consequence? Did the corporation cease to exist? We apprehend not. The corporation must have been in existence before it could have commenced the work, and having failed to commence it, still continued to exist. But the failure was good ground of forfeiture, and upon a proper proceeding before this court, such forfeiture would have been adjudged. But the supreme power of the state might waive the forfeiture, and the case shows that it was waived. The legislature, at the instance of the corporation, and it must be remembered that the defendant was a member of this corporation, gave further time within which to commence the work. By this law the corporation was not divested of any right, but had in fact an additional right conferred upon it. It is placed precisely in the situation it would have been had the time originally prescribed) within which to commence the work, been fixed at 4six [117 years; and of course the obligation of the defendant remains unchanged.

Judgment for the plaintiff.


text:
    James Mitchell v. William Dunlap and others; William Dunlap v. James Mitchell and others.
    Although one executor can not purcháse at a sale by his co-executors, yet such a sale may be executed with the subsequent assent and ratification of the heirs.
    Femes covert can not hind their interest in lands except in the one form prescribed by law.
    These are cross suits between the same parties from the county of Muskingum.
    In-June, 1837, Thomas Mitchell, father of James Mitchell, settled his estate among his children and widow.
    He devised his lands to four of his sons, charged with certain legacies to his daughters, and his remaining son, and made certain provisions for the maintenance of his widow. He made William Dunlap, the defendant in the original bill, together with James Wilson and J. Gilbert, his executors.
    On July 29, 1837, he made a codicil altering, in some respects, the arrangement of his will, and he “leaves the sole use and management of his farm, etc., to my executors and -widow, leaving it to their option to sell said farm or not, if not tended to, by my sons, as it ought to be.”
    After the decease of Thomas Mitchell, the executors proved the will. In the execution -of their trust, it being necessary to sell lands to pay debts, it was doubted by them if the will conferred upon them the power of sale. Upon the advice of professional counsel, an agreement was entered into, in writing, between the widow, the executors, and eight of the nine children (the ninth taking no interest in the land under the will), by which the executors were authorized to sell the land, to pay the widow 118] $500, in lieu of her dower *and distributive share, out of the first avails, and divide the remainder among the children. , On the day of sale, Dunlap offered a larger sum than was offered by any other individual, and the other acting executor, under the advice and assent of the widow and of most of the children, consented that he should become the purchaser at its full value of $2,100, of which $500 were to be paid to the widow, and the residue in three annual payments. Before the purchase was completed and securities given, the acting executor was about to rescind the sale, fearing that the persons interested might become dissatisfied because one of the executors was the purchaser. Upon which the widow, three of the sons, and two of the daughters, with their husbands, made another writing, in which they refer to the authority to sell, and the sale, and the terms of credit, and certify they were and remain perfectly satisfied with it. Upon the execution of this writing, Gilbert consented to admit the sale, and Dunlap paid the $500, and is willing to comply with the remaining conditions, and has taken possession of the land.
    The original bill is brought to set aside this sale; the cross bill is to affirm the sale, and acquire a valid title under it.
    Buell & Foster, for Mitchell and others:
    It is now a well-settled rule, that if a trustee, acting for others, sells an estate and becomes himself interested in the purchase, the cestui que trust is entitled to come’ into equity, as of course, and set aside the purchase and have the property re-exposed to sale. Davoue v. Fanning, 2 Johns. Ch. 252; Lazarus v. Bryson, 3 Binn. 54; Moody v. Vandyke, 4 Binn. 31; 1 Story’s Eq. 318.
    The same principle, to its full extent, has been recognized by this court, in Armstrong v. Huston, 8 Ohio, 552.
    The only question then is, whether the sale to Dunlap has been confirmed by any act of the parties in interest.
    The instrument set up as a ratification can at most affect only the rights of those who signed it, and we claim that inasmuch as the instrument was procured by Dunlap himself, a *court [119 of equity will not allow him to use it, as against his cestui que trusts. The rule is, that a trustee will not be permitted to deal with his cestui que trust, until a bona fide dissolution of the trust relation. Ex parte Lacey, 6 Ves. 625; Campbell v. Walker, 13 Ves. 600; Coles v. Trecothick, 9 Ves. 246; Monroe v. Allaine, 2 Caine’s Cas. 182; Ex parte Bennett, 10 Ves. 393; Church v. Marine Ins. Co., 1 Mason, 244; Lovell v. Briggs, 2 N. H. 220.
    Agents and executors are regarded as trustees within the meaning of this rule. Fay v. Hunt, 5 Pick. 398 ; Harrington v. Brown, 5 Pick. 519 ; 4 Kent Com. 437.
    Harper & Stillwell, for Dunlap :
    The general rule recognized in the cases referred to on the other side is not disputed, though there are contrary authorities. Anderson v. Fox, 2 Hen. & Munf. 215; McKey v. Young, 4 Hen. & Munf. 430; Drayton v. Drayton, 1 Des. 567. But the rule has no application to this case. Here is a fair and equitable family arrangement, entered into for a laudable purpose, understood and assented to by all the parties interested, and executed by several of the heirs, one of whom is the complainant. The court, in sustaining such a purchase, will violate none of the rules in the cases referred to. The complainant, with a full knowledge of all the circumstances, executed an instrument confirming and ratifying the purchase; and no fraud or mistake being alleged, equity will not, at his instance, set aside the sale. In Lazarus v. Bryson, 3 Binn. 54, cited and approved by the chancellor in Davoue v. Fanning, 2 Johns. Ch. 252, it is held, that if a sheriff become a purchaser with the consent of the debtor, even his heirs can not impeach the sale.
    Much less can he be permitted to call in question a sale, who not only had a full knowledge of it, but, alter it was made, executed an instrument saying, that “ he had been, and continued to be satisfied ” therewith. We maintain, then, that there is no just interpretation of any general rule, nor any decision cited, or to be 120] found in any of the books, that will sanction % decree, setting aside the purchase made by the defendant, Dunlap.
   Lane, C. J.

The bill by James Mitchell denies that Dunlap possessed the capacity to acquire a title, by any sale from the executors, and asserts that his signature to the two papers was procured by fraud. The answer repels the charge of fraud, and asserts that the estate produced its full value, and more than if the sale had been made to any other person. The imputation of fraud remains without proof, and the acquiescence of the heirs, and their omitting to resist the claim of Dunlap, lead us to infer that the sale was, in fact, honest and fair.

No principle is better established than that the person intrusted with the authority to sell the land of another, can not himself become the purchaser. This principle of exclusion is familiar with the profession, and has been pushed to a rigorous extent in our own courts. 8 Ohio, 554. In all such cases the owner may annul- the sale, on the repayment of the money advanced. If) then, the case presented nothing more than a purchase by Dunlap, of land, which he, as an executor, undertook to sell, either by the will or his other authority, the right of James Mitchell to set aside these proceedings would be recognized without difficulty.

But the question here is, not whether the sale was originally good, hut whether it may not be ratified by those whose interests are conveyed. After the sale had been made to Dunlap, the facts and conditions all known, certain of the heirs (among whom was James Mitchell,) by a written document, made for the purpose of leading the parties to complete it, testified their acquiescence, and, in consequence of this, the sale was completed, possession taken, and a large part of the purchase money paid. After this testimonial of assent, this decisive act of the owners, designed to lead Dunlap into the completion of the contract, and the payment of money, it is too late for thorn, with any show of good faith, to deny its binding, confirming efficacy. The claim, then, of James Mitchell, the ^plaintiff, to disown this ratification of the pro- [121 ceedings of Dunlap, can not be admitted, and the bill to set aside the sale must be dismissed, with costs.

The bill of Dunlap to affirm the sale, and acquire the title, does not stand upon the same grounds. His right depends on the ratification of those in interest; and is perfect as to James Mitchell, and is perfect also as to all who subscribed the second document, and are competent to act upon their rights. But a part of these signatures are those of married women, incompetent to bind their lands, except in one prescribed form. The plaintiff in the cross bill may take his decree, if he wishes it, against the widow, and against such of the children who signed that instrument as are competent to contract, and against the husbánd of the daughters, to the extent of their estates.


author: Wood, J.

text:
    Meredith D. Brock v. William Milligan.
    One who believes in the existence of Ood, and that an oath is binding on the conscience, is a competent witness, though he does not believe in a future state of rewards and punishments.
    This is a writ of error to the court of common pleas of the county of Fairfield.

      The original suit was an action of assumpsit, brought by the defendant in error, who wasplaintiff in the court below, to recover for services rendered as a physician, at the special instance and request of the defendant below. The general issue was pleaded, and a verdict and judgment given for the defendant in error, in the court of common pleas, which is now sought to be reversed by the prosecution of this suit.
    But one error is assigned. It is in these words: “ The court of common pleas erred in refusing to permit the deposition of Eli 122] Atwood, mentioned and set forth in the bill of ^exceptions, to be read in evidence to the jury in behalf of the defendant below.”
    It appears by the bill of exceptions, that upon the offer to read this deposition, an objection was made to the competency of the witness, for the reason that his principles, or want of proper religious belief, disqualified him from giving testimony. To sustain this objection, it was proved that about three years before, the witness, Atwood, stated that “ there would be no accountability hereafter, in relation to matters of this life. That beyond the grave, there would be no accountability for anything done here. That there was neither heaven nor hell, and when a man died that was the last of him.” It was also proved that about the same time, Atwood stated, that “ a man was like the beast, had nothing to do after death ; and that after that period, there would be no more of him.” On this evidence of Atwood’s declarations, the court of common pleas sustained the objection, and rejected the deposition.
    H. H. Hunter, for the plaintiff in error,
    insisted, that he who. makes the objection must show, that at the time of the trial the witness wants a proper religious belief; and that declarations made three years before the trial, are no evidence of the present sentiments of a witness. He claimed the rule of law to be, that a witness is competent, if he believes in the existence of Hod, or, in a future state of rewards and punishments, or, in the obligation of an oath. He cited Easterday v. Kilbourn, Wright, 345.
    He also relied on section 3, of article 8, of the constitution of Ohio, which provides “ that no human authority can in any case whatever control or interfere with the rights of conscience.”
    H. Stanbert & Yan Trump, for the defendant in error,
    insisted, that the rule of law which excludes a witness for defect of religious principle, did not grow out of a sectarian spirit in the administration of the law, but was the result of a comprehensive and philosophical estimate of human character *and motives [123 in balancing the incentives and checks to good and evil. Omychund v. Barker, 1 Atk. 21; Willes, 549; Rex v. Taylor, Peake, 11; Rex v. White, 1 Leach C. C. 430; Curtis v. Strong, 4 Day, 51; 1 Phil. Ev. 20. The law does not rely upon the abstract principles of'human nature, in laying down its rules for the regulation of testimony, but it appeals to the conscience of men — to their fear of doing wrong springing out of the belief of a future accountability.

    They further insisted that section 3, of article 8, of the constitution, was intended merely to secure to every citizen his political rights, an entire freedom of religious faith, to hold and enjoy, or to disbelieve and reject, any or all religious creeds and systems, just according to the pleasure of his own will; but it was never the intention of the constitution, that in the judicial tribunals of the country, the property, the reputation, or the life of the citizen should be made to depend on the mere words of one who openly avows that his conscience neither recognizes nor feels any obligation under the sanction of an oath.
   Wood, J.

The question raised upon the record, in this case, is, whether the court of common pleas erred in the rejection of Atwood’s deposition ? Much learning has been expended by many of the ancient writers, in defining the nature and obligations of an oath. Fleta. 344, lib. 5, c. 22; Brae. fol. 116; Brit, de Chal, de Jurors, 135, c. 53; Fortes. de Laud. Leg. Anglica. 58, c. 26; 2 Co. Inst. 479 ; 3 Inst. 165, c. 14; 1 Atk. 22, etc. But by Chief Justice Abbot, in the queen’s case, an oath is declared to be the calling upon God to witness, that what is said by the person sworn is true, and invoking the divine vengeance upon his head, if what he says is false; and, upon interrogatories put to the judges by the lords, it was responded by that very learned and distinguished judge, that if the witness states he considers the oath binding on his conscience, it is periectly unnecessary and irrelevant, to ask any further questions. 3 Stark. Ev. 1734, note m. In many of our elementary treatises, it is laid down as the ^invariable [124 rule, that, before a witness takes the oath, he may be asked whether he believes in the existence of a God, the obligations of an oath, and in a future state of rewards and punishments; and if he does not, he can not be sworn. 1 Stark. Ev. 122; 11 Peak. N. P. 11.

That the principle here given would exclude a professed atheist, as incompetent to testify, is very clear, and there are perhaps few subjects on which there has been a greater uniformity of decision in both the English and American courts than that such person is totally incompetent. 1 Atk. 45; Bul. N. P. 202; Leach’s O. C. L. 483; Bract. 116; 2 Cow. 431; 18 Johns. 98; 4 Day, 51; Yerger, 224; 7 Conn. 82; 4 N. H. 444; 2 Term, 96. The reason, as given in the books, is, that upon the conscience of such a witness, the oath has no binding force or obligation. But it does, by no means, follow, laying out of view section 3, article 8, of the constitution of Ohio, and proceeding upon the broad basis of the common law, that a witness, to be competent, must believe in a state of existence after death, or in a future state of rewards and punishments. If it have been so declared, in a very few instances from the bench, and a witness occasionally required so to square his opinions, the origin is undoubtedly to be traced to those gloomy times of papal superstition, when sectarian influence and fanaticism overspi’ead the land of our ancestors, and to deny the real presence was but the prelude to the stake! When human penalties were considered as nothing, in controlling the conduct óf a witness; and that neither his obligations to society, nor his admissions of the moral influence of an overruling power, in this world, were a sufficient guaranty to bind his conscience, and guard the community against falsehoods, unless the witness also believed in a future state of rewards and punishments. But in 1744, such notions were found by experience to be too contracted for the purpose of substantial justice, and íd Omychund v. Barker, before Lord Chancellor - Hardwick, assisted by the lord chief baron of the exchequer, and the lord chief justices of the king’s bench and common pleas, it was held that the deposi125] tion *of a Gentoo, sworn according to the custom and religion of his own-country, was competent testimony, because he believed in a God, the creator of the world. 1 Atk. 40. Lord Chief Justice Willes, in the same case, page 43, asserts his opinion that some infidels, under some circumstances, may be admitted to testify; that Lord Coke’s opinion was too narrow; he would exclude Jews, as well as heathen ; that Lord Coke was a very great lawyer; but our Savior and St. Paul were much better authority, and they had declared that “ God was no respecter of person."

Lord Chief Justice Lee declares, that rules of evidence are artificial, but one rule can never vary — the eternal rule of natural justice; that the case before him was to be looked upon in that light, and the evidence to be considered «in that way which was agreeable to the laws of England. Id. 44.

It would seem that the opinion of Chief Justice Abbot, before cited; the rule in Starkie, that.the witness must believe in a God, the obligation of an oath, etc.;' and the opinion of the court in Omyehund v. Barker, are perfectly reconcilable, and indeed support each other, and they are certainly sustained by the current of the American decisions. 15 Mass. 184 ; 2 Cow. 431, 433 ; U. S. C. 345. Though there are cases opposed to be found in the books 7 Conn. 66; Swift’s Dig. 739. But to reconcile the authorities, the' three several propositions in 1 Starkie’s Ev. 122, must be disjunctively considered.

We think, then, that it may, at this time, be considered as pretty generally settled, both in England and in the United States, that whoever believes in the moral influence and control of an overruling Providence in this life, and that an oath is binding on his conscience, is competent to testify; for, aside from the penalties imposed by civil enactments, if the witness believe in the moral obligations of an oath, the reward of good and punishment of evil action, by some superior power, is irresistibly implied. And it is worthy of consideration, whether the great ends of justice, the object of all law, would not be promoted, even if this requisition were swept away, and no inquiry permitted *as. to what concerns the duties [126 of the creature to his Creator only, in order to determine the competency of the witness. We are, however, to declare the law as we find it, and, if defective, it belongs to another forum to remedy the evil.

In this case, it is apparent that the deposition should not have been excluded.

The witness disbelieved in a future state of rewards and punishments, accountability or existence after death ; but this was at a period long anterior to the taking of his testimony. But if such disbelief continued, it is consistent with the most perfect conviction of a superintending power, the obligation of an oath, morally considered, and the influence of God’s providence and government in this life, and fully within the principle decided in Easterday v. Kilbourn, Wright, 345.

It has been questioned, whether the declarations made out of court, by a witness, are competent evidence to prove his want of religious belief. This is settled, in the affirmative, by several adjudicated cases. Norton v. Ladd, 4 N. H. 444 ; Atwood v. Welton, 7 Conn. 66. It is questionable, however, whether such declarations should not be confined to some period shortly anterior to giving evidence by the witness, so that no change of opinion might reasonably be presumed.

From the view we take of this case, it is unnecessary to consider the constitutional question presented, whether the rejection of a witness for the defect of l’eligious belief interferes with the rights of conscience? And sufficient for the day is the evil thereof.

The judgment of the court of common pleas is reversed, with costs, and the case remanded.

Judgment reversed.

       Where a father and son were called as witnesses, and it was proved that the son had often declared he did not believe in the existence of a God or a future state; and that the father had declared he did not believe in the latter, had read Tom Paine's works, and did not know whether he (the witness) believed anything, Story, J., rejected both as incompetent. Wakefield v. Boss, 5 Mason, 16, 18, 19, note.


text:
    *John Hughes and Sarah Hughes, his wife, v. Luman Watson and others.
    . A deed executed by husband and wife, under the act of 1805, she being within eighteen years of age, does not bar her right of dower.
    This is a bill in chancery from the county of Hamilton.
    It is a suit for dower, and the material facts are these: On May 25, 1807, Andrew Bart, then the husband of the complainant, Sarah Hughes, was owner in fee simple of lot No. 125, in Cincinnati, and on that day, by deed duly executed by him and his said wife, conveyed the same to David E. Wade. By said deed Sarah . Hughes, the present complainant, released her right of dower in the premises. At the time of the execution of this deed she was an infant within the age of eighteen years. On November 10, 1809, David E. Wade conveyed the same lot to David Wade, and by subsequent conveyances it has come into the possession of the present defendants, who have the next estate of inheritance, and who own separate and distinct parcels of the lot. Andrew Bart died in 1817, and subsequently, in the year 1827, his widow intermarried with John Hughes, one of the complainants, soon after which the bill in this case was filed, claiming dower in said lot.
    Wright, Walker & Corry, for the plaintiffs,
    insisted, that the complainant, Sarah Hughes, was entitled to dower in the premises. That the relinquishment of dower, in the deed executed by her jointly with her former husband, could not operate as a bar, she being an infant at the time of its execution, and having done no act to confirm it since she arrived at full age. So far as respects an objection raised by defendants’ counsel, that there was a misjoinder of parties, it was insisted that such was not the fact, but that if it were so, it could not *be taken advantage of in [128 this case, as1 there had been an express agreement in writing by counsel heretofore engaged, and managing the case for defendants, to waive any such objection. And it was further insisted, that the complainant was entitled to damages for the detention of her dower, equal to one-third of the rents and profits of the premises since the commencement of the proceedings. The following authorities were cited : Allen v. McCoy, 8 Ohio, 463; 1 Story’s Eq. 587; Drake v. Ramsey, 5 Ohio, 251.
    V. Worthington, for the defendants,
    contended, that the complainant, Sarah Hughes, was barred of her right of dower by the relinquishment in the deed of May 25, 1807. The act regulating dower, of February 12, 1805, which was in force at the time this deed was executed, secured to the widow of any person dying intestate or otherwise dower in lands of which her husband was seized during the coverture, “to which she shall not have relinquished her right of dower by deed duly executed.” Nothing is said as to the age of the wife at the time of the execution of the deed; all that is required is that the deed shall be “duly executed.” In the case before the court there is no pretense but that the deed was duly executed, and of course it must operate as a bar.
    Besides, th'ere is an improper joinder of parties defendants. Had the widow been tenant in common with the holder of the lot, before its severance into parcels, and was now seeking partition, she would have to proceed in a separate action against each, and she ought to be bound by the same rule when she seeks her dower. White v. Sayre, 2 Ohio, 110; Wolf v. Pounsford, 4 Ohio, 398; Lockwood v. Mills, 3 Ohio, 21; Dennison v. Foster, 9 Ohio, 126; Allen v. McCoy, 9 Ohio, 418; Woods v. McGee, 7 Ohio, 127, pt. 2. It may be admitted, that if there be equities subsisting between the defendants that require an equitable adjustment, the case would be different, but such is not the case made in the bill. Teal v. Wood-129] worth, 3 Paige, 470; Town v. Needham, 3 Paige, *545; Smith v. Barbour, 7 Ohio, 120, pt. 2; Hart v. Hawkins, 3 Bibb, 502; Powell v. Mon. Man. Co., 3 Mason, 347; 1 Story’s Eq. 586, sec. 632.
    It was not denied, however, nor was it'expressly admitted, that there had been an agreement, as stated by complainants’ counsel, to waive any objection on account of misjoinder of parties.'
    It was further insisted, that as the complainants sought to avoid the deed of May 25,1807, on account of the infancy of Mrs. Hughes, then Mrs. Bart, and as deeds of infants are not void, but voidable, there should have been some act of avoidance before the institution of these proceedings. Drake Ramsey, 5 Ohio, 251; Bool v. Mix, 17 Wend. 126.
   Hitchcock, J.

A short history of this ease may not be uninteresting, and although it may not, and can not be necessary to a correct decision, still it will show the difficulties which this woman has had to encounter in order to get her dower.

The original bill was filed in the court of common pleas of Hamilton county, on March 24, 1827. The bill being answered, and evidence taken, the case came on for hearing at the August term of that court, 1829. On this hearing the court held that the deed of Bart and wife to D. E. Wade could not operate to bar her right of dower, as the acknowledgment was taken before the mayor of Cincinnati, who, it was claimed, under the law then in force, was not authorized to take the acknowledgment of deeds. And a decree was rendered in favor of the complainants, assigning dower, as of the value of the property at the time of alienation by the husband, in conformity with what was then supposed to be the law, and in accordance with the decisions of the Supreme Court in similar eases, previously made in the county of Hamilton. At the December term of this court, 1833, the case of Dunseth against the Bank of the United States was decided, in which it was held, that a widow should be.endowed according to the value of the 130] ground at the time of the assignment, *excluding increase of value from Improvements, but including increased value from other extrinsic and general causes. After this decision, on August 30, 1834, and when the time limited for such purpose was near expiring, the complainant filed a bill to review the decree of August term, 1829, and the error assigned was, that dower had been assigned as of the value of the property at the time of alienation. This bill of review came on for hearing at the June term of the court of common pleas, and the former decree was reversed. From this decree of reversal an appeal was taken to this court, and in this court the case was heard at the April term,' 1838, the original decree of the court of common pleas reversed, and the case set down for hearing upon the original bill, answers, exhibits, and testimony. In the meantime a decision had been made by this court recognizing the right and power of the mayor of Cincinnati to take the acknowledgment of deeds. If, then, the case had been heard upon the evidence as exhibited in the court of common pleas^ there must have been a decree for the defendants. But upon the suggestion of counsel that at the time of the execution of that deed, the complainant, Sarah Hughes, was an infant within the age of eighteen years, the case was continued. And it now stands for hearing in this court upon the facts set forth in the statement of the case. Thus, it will be seen that it is now more than thirteen years since these proceedings were instituted, and more than twenty-three years since the right of dower of the complainant, Sarah, was consummated by the death of her late husband, Andrew Bart. If she can not succeed in this case, she will be barred of this right, the court having decided at the present term that the statute of limitations operates upon a claim for dower, as well as upon any other action for the recovery of the possession of real estate.

The statement of the case shows that the complainants are entitled to the relief sought, unless barred by the deed of March 24,. 1807. The counsel for complainants insist, that the relinquishment of dower in this deed is no bar, because, at the time the deed was executed, the complainant, Sarah, was *an infant. On [131 the other hand, it is contended that if the deed was duly oxecuted,. it is a bar by the express terms of the statute, and that the age of the party executing is a matter of no moment. This presents the-first question for consideration. The position of the defendants’’ counsel is sustained byan argument ingenious and plausible, if not conclusive.

The law in force relative to dower, at the time this deed was executed, was the act of February 12, 1805. This act repealed all previous laws on the subject of dower, and it is, therefore, unnecessary to inquire what those previous laws were. In the first section it provides : “ That the widow of any person dying intestate, or otherwise, shall be endowed of one full and equal third part of all the lands, tenements, or other real estate of which her husband was seized as an estate of inheritance, at any time during the coverture, to which she shall not have relinquished her right of dower by deed daly executed.” It will be seen that in this provision nothing is said as to the age of the wife, or as to the manner of execution of a deed, or of its acknowledgment, so that it may be “duly executed and acknowledged.” From this omission the inference is drawn that the age is immaterial. It might as well be inferred that under this law a deed executed by the wife alone, and without witnesses, would be good and valid. And, by adopting this conclusion,-we should be led to this absurdity, that a feme covert, who, as a general principle of law, can make no contract, may, without the consent of her husband, convey an interest in land by deed at an age when a feme sole would be incapable of conveying by deed, or in any other manner. Such could not have been the intention of the law. True, the counsel insist that a feme covert has no interest in the lands of her husband during the ■coverture. But it is not so. She has an interest, of which the husband, by any act of his, can not deprive her. And it is an inderest which will be available to her, provided she survive her ’husband. During coverture she is under his protection, and he is bound to support her, and if he leave her a widow she is entitled to a support from his estate, so far as the use and occupation 182] of *one-third part of the lands of which he was possessed ■at anytime during the coverture will furnish such support.

Since the organization of a government northwest of the river ■Ohio, by the ordinauce of 1787, there has been no time that there has not been, within the present limits of Ohio, a law prescribing the manner of executing and acknowledging deeds. This law has been frequently, perhaps too frequently, changed. But still there has been some law in existence upon the subject. In order to ascertain whether a deed has been “duly executed and acknowledged,” the execution and acknowledgment must be compared with the law in force at the time of such execution, and, if executed and acknowledged in conformity with such law, then it has been duly executed and acknowledged.” It was to these laws that the act of 1805, relative to dower, has reference, when it speaks of a deed duly executed and acknowledged.” In order that a deed may have been duly executed and acknowledged,’ it must have been executed not only in conformity with the forms of law, but by persons, in law, capable of executing such instruments.

The law in force at the time the deed now under consideration was executed, was the law of February 14, 1805, “ providing for the execution and acknowledgment of deeds.” 1 Chase’s L. 484. This law must have been under consideration by the^ legislature at the same time with the law relating to dower; one being passed on the 12th, the other on the 14th of February, and both taking effect on the 1st day of June then next. So far as they relate to the same subject matter, they must be taken together in construing. The one provides that a feme covert may relinquish her right of dower by deed duly executed and acknowledged.” The other prescribes the manner in which a deed, to be “ duly executed and acknowledged ” by a feme covert, shall be executed and acknowledged, and also the age at which the feme must have arrived to execute such deed. The law is as follows: “ Where any husband and wife shall incline to dispose of, or convey, the estate of the wife, or her right in or to any lands, tenements, *or [133 hereditaments whatsoever, it shall and maybe lawful for said husband and wife, she being not less than eighteen years of age, to make, seal, deliver, and execute, any grant, bargain and sale, lease, release, feoffment, deed, conveyance, or assurance, in the law whatsoever, for the lands, tenements, and hereditaments intended to be by them passed and conveyed, and, after such execution, to appear before a judge of the Supreme Court, or court of common ipleas, or a justice of the peace, and acknowledge the same, which 'judge or justice of the peace is hereby authorized and required to take such acknowledgment, in doing whereof he shall examine the wife separate and apai’t from her husband, and shall read, or otherwise make known, the full contents of such deed or conveyance, to the said wife, and if, upon such separate examination, she shall declare that she did voluntarily, and of her own free will and accord, seal, and as her act and deed deliver such deed or conveyance without any coercion or compulsion of her ‘husband, and the said judge or justice taking such acknowledgement shall, under his hand and seal, certify the same upon the back of the deed or conveyance.

The deed now under consideration appears to have been executed and acknowledged in conformity with the provisions of this law, so far as the manner of execution is concerned. But it was executed by complainant, Sarah, when she had no capacity to do it. She had no capacity except under the statute, because she was a feme covert, and she had no capacity-under the statute because she was not eighteen years of age. As to her, then, the deed is void, or at least voidable, and can not operate to bar her right of dower. .This opinion is sustained by the case of Bool and wife v. Mix, 17 Wend. 119, in which' it was held by the Supreme Court of New York, that “where a party is an infant as well as feme covert, the disability arising from infancy remains, although she execute and acknowledge a deed in the form prescribed by the statute.”

Another ground of defense is, that the deed, of an infant not being void, but voidable, the complainant, Sarah, should have 134] *done some act disaffirming the deed prior to the commencement of this suit.

This subject was fally considered by this court in the case of Drake v. Ramsay, 5 Ohio, 252; and it was finally decided that a deed made by an infant might be disaffirmed, whilst an'action of ejectment was not bound by the statute of limitations, and that no previous act of disaffirmance was necessary prior to the commencement of the suit. In the case before cited, 17 Wend. 119, the Supreme Court of New York seem to have considered some such previous act necessary. It is a question about which there is much contrariety of opinion, and with respect to which there have been contradictory decisions. As, however, it has been once decided by this court, we prefer to adhere to that decision. In the case before us, there is no bar under the stutute of limitations, and the filing the bill in chancery for dower is as clearly an act of disaffirmance of the deed made by the complainant, Sarah, while an infant, as would be the institution of an action of ejectment.

Another objection taken by the defendants’ counsel is, that here is a misjoinder of parties. Although at the time of alienation the lot of ground in which dower is claimed was entire, the defendants now own in severalty distinct parts of it, and have no community of interest in any one part. The different parts were probably so holden in severalty at 'the time the complainant Sarah’s right of dower was consummated by the death of her husband. A majority of the court incline to the opinion that there is a misjoinder, but we are relieved from the necessity of deciding this question. It seems that there was an agreement entered into by counsel heretofore engaged in the case to waive any objection on this account. At least it is so stated by the counsel for the complainants, and not denied. By this agreement the defendant must be concluded.

It is claimed that the complainant Sarah is entitled not only to he endowed in the premises, but that she is entitled to damages equivalent to one-third of the rents and profits of the premises since dower demanded, deducting therefrom one-third of *the taxes paid. It has been settled in the case of the [135 Bank of "United States v. Dunseth, decided at the present term, that in a proceeding for dower, no damages can he recovered.

A decree may be taken for the complainants, allowing dower according to the value of the premises at the time of assignment excluding all increase of value from improvements made upon the premises by the alienees since alienation, but including all increase from other extrinsic and general causes.

Decree for the plaintiffs.

      Ante, 18,


text:
    The Lessee of Ransom Bronson v. Benoni Adams.
    Where the rights of two coparceners to a part of an estate are barred ,by an adverse possession and the same part in a partition of the whole estate is alloted to another coparcener, who is within the saying clause of the act of limitations, the latter can hold only his original share in the part so alloted to him.
    The right to sue for real estate saved by the provisos in the act of limitations is personal, and is no protection to others.
    This is an action of ejectment, on an agreed state of facts, from the county of Lorain.

      Azor Bronson was once seized of an undivided fifth of a tract of land, of which lots 11 and 14, now in controversy, were a part.
    He died in 1811, and the undivided fifth descended to his three sons, of whom the plaintiff is one.
    In 1825, his two brothers brought their petition for partition of the entire tract against “owners unknown.” The plaintiff joined in partition, and in 1827, the partition was made, aparting the lots 11 and 14 to the plaintiff as his share of the one-fifth which descended from their father.
    The defendant has held adverse possession of the lots since 1812, and is protected by the statute of limitations, unless the plaintiff is within its provisos.
    The plaintiff arrived at full age in 1826.
    136] *C. Stetson, for the plaintiff:
    The plaintiff inherited from his father a third of the undivided fifth, and there is no pretention that his right is barred by the act of limitations. He is therefore entitled to his third somewhere out of the fifth. By the partition, his share was located on lots 11 and 14, and the defendant being virtually a party to the pro ceedings, can not now call in question the plaintiff’s right to recover the whole of those lots.
    S. J. Andrews, for the defendant:
    The right of the plaintiff to one-fifteenth is not questioned.
    In 1812, when the defendant entered, the plaintiff was an infant, but his two co-heirs were of full age, The plaintiff was protected by his disability, but that disability does not save the rights of others. Thomas v. Machir, 4 Bibb, 412; Sanford v. Bretton, 4 Day, 310; Doolittle v. Blakeslee, 4 Day, 265; Dougal v. Cowles, 5 Day, 511; McIntire v. Funk, 5 Litt. 34; Roe v. Rowlston, 2 Taunt. 441; McClung v. Ross, 5 Wheat. 124; Kennedy v. Duncan, Hardin, 365.
    The proceedings in partition did not vary the rights of the defendant. His adverse possession commenced in 1812, and has ripened into a perfect ti le. When an adverse possession begins to run in the lifetime of the ancestor, and the land descends to an infant heir, the latter is not protected by his disability. Granger v. Granger, 6 Ohio, 35; Peck v. Randall, 1 Johns. 42; Jackson v. Colden, 13 Johns. 513; Livingston v. Robbins, 15 Johns. 169. So, where the plaintiff, before his right was barred, and during the adverse possession of the defendant, recovered judgment in ejectment, but neglected to issue a writ of possession until the time of limitation had expired, it was held that his claim was barred. Jackson v. Haviland, 13 Johns. 229. A judgment in partition has no effect on the right of property. Pierce v. Oliver, 13 Mass. 211.
   Lane, C. J.

It is not doubted that the plaintiff may recover from the defendant one-fifteenth of the two lots, being his original share, as the suit was brought within the time saved *after [137 the disability was removed. But the plaintiff claims that the effect of the proceedings in partition is such as to interrupt the possessory right, and extends the protection of minority to what ever land he may lawfully claim in the tract.

We can not admit the soundness of this position. Adams was in possession, the statute was running in his favor, and cut off the right of action belonging to the two eldest sons. The right of the younger was preserved by his minority. We have just decided that this privilege was personal only, and did not protect the others. Moore et al. V. Armstrong et al., ante, 11. The three heirs held a right in common in the lots, which the defendant occupied, and the statute extinguished the claims of two. The two could not evade this consequence by a sale to the third, or by any other act of theirs, for the statute had cut off their right of action.

The verdict is reduced to one-fifteenth.

Judgment for the plaintiff.


text:
    Austin W. Stocking v. Joel B. Burnett.
    An issue in fact and 'in law can not be taken at the 3ame time to the same count or plea.
    This is an information in the nature of a,-quo warranto from the county of Portage.
    It is filed by the relator, under the acts of March 17, 1838, and March 18,1839, by which it is provided, “ that when any person shall usurp, intrude into, or unlawfully exercise any public office, civil or military, to which any other person shall claim to be entitled, the person so claiming may file an information in the natun? of a quo warranto,” etc.
    The relator states that the.defendant has intruded himself into 188] the office of brigadier-general of the 1st brigade, 20th *division of the Ohio militia; an office of great trust and pre-eminence, and continues to exercise the same, without right or legal warrant, and that he, the relator, is entitled to hold said office, etc.
    The defendant has plead specially in bar, that he was legally elected and commissioned to said office, which election, and commission are his right and warrant to hold and discharge the duties of said office. The relator replied, taking issue upon the fact of the election set up in the plea, and at the same time demurred, generally,to the whole plea. The case wassubmitted without argument.
    Tilden, for the relator.
    Bierce, for the defendant.
   Wood, J.

This case is reserved here for decision, to settle a question of pleading. The issue in law and fact each covers the whole plea, and were filed at the same time. A practice of this kind has prevailed, to some extent, in this state, but we think it has, by no means, been general, and ought not to be sustained. It probably originated in a misconstruction of the practice act, “ that where there are issues in law and issues in fact, the issue in law shall be determined before the issue in fact shall be tried.” 3 Chase’s L. 1684, sec. 1. The issues here mentioned are not to the same, but different counts, or pleas. It seems to us to sanction the practice adopted in this case, would lead to inconvenience and useless expense, burdensome to the parties litigant, while no benefit would result from its adoption. For if an issue in law and fact may be made up at the same time, to the same count or plea, it follows thatthe parties must be prepared with their witnesses to prove the issue of fact, when the disposition of the issue of law might put an end to the whole case. The costs of making up the issue of fact, filing and recording, ought not to be incurred, nor the record incumbered, until the determination of the demurrer makes it nec139] essary. In this ease, we see no reason why the plea is not % complete answer to the information, and the demurrer is overruled, with costs, and the case remanded for trial upon the issue in fact.

Demurrer overruled.


text:
    The Lessee of Wilkins’ Heirs v. Huse and Swindler.
    Under the act of 1822 a sale for taxes must be made on the day specified in the advertisement, or if made on a subsequent day, the reason for it must appear in the auditor’s return.
    This is an action of ejectment from the county of Licking.
    On the trial of the case, there was no controversy but that the plaintiff must recover unless divested of title by a sale for taxes, the defendants claiming title under such sale. It was proved that notice was given by advertisement that the sale would take place on June 1, 1824. From the return made by the county auditor to the court of common pleas, it appeared that the sale was actually made on the 2d day of June, and no reason was assigned why it was not made on the day specified in the advertisement. The sale thus made was confirmed by the court of common pleas, and a deed ordered to be made by the auditor of the county to the purchaser, which was executed accordingly. And under this deed the defendants claim title.
    The court were of opinion, that inasmuch as the notice given was that the land would be sold on the 1st day of June, a sale could not be legally made on a subsequent day, unless it appeared from the auditor’s return, that the land had been sold on the first day and that the purchaser refused to pay the taxes, and so instructed the jury.
    After verdict against them, the defendants moved for a new trial, on the ground that the court was mistaken as to the law of the case.
    *Smyth and Wilcox, for the plaintiff.
    William Stanbery, for the defendants.
   Hitchcock, J.

This case was before this court at its last term, and the points then in controversy decided. 9 Ohio, 154. It is now again presented with a new objection to the sale.

This land was sold under the act of January 30, 1832, “providing for the remission of penalties, and for the sale of land for taxes.” 2 Chase’s L. 1216. The objection now made to the sale is, that the.land was not sold on the day it was advertised for sale.

Under the law of 1822, before cited, it was provided that for the collection of taxes, interests, and penalties previous to the year 1820, in the mode pointed out, judgments should be recovered for such taxes, etc., and that on such judgments the lands should be sold, and conveyed by the county auditor by deed to the purchasers. And it was further provided, that the title conveyed by such deed should not be “ invalidated or affected by the reversal of such judgment or error therein, or by any error in any proceedings previous to the rendition of any such judgment, relating to the charging or collecting taxes on such land, or the obtaining of any such judgment.” The objection made in the present case is to a proceeding after the judgment. Whether this objection is well made depends upon the construction of section 7 of the before recited act, and more particularly upon the construction of tho last clause of the section. This section is as follows: “Previous to the sale of any lands under the provisions of this act, it shall be the duty of the auditor to advertise the same, in a newspaper having general circulation within the county where such lands are situated, thirty days previous to the day of sale, which advertisement shall set forth the time and place of sale, and the amount of the judgment and costs lor which the same are to be sold, and the auditor shall attend at the same time and place of 141] sale, and proceed to sell the *same to the person or persons who will pay the said judgment and costs for the least number of acres; and the said auditor shall, previous to the sale, designate from what part of the tract the land so sold shall be taken; and if the person or persons to whom the same may be struck off, shall refuse to pay-the amount of said judgment and costs, the county auditor shall proceed to offer the same from time to time, for the space of three days in succession, unless previously sold.” Now the question arising, is as to the intention of this last clause. Is it to give the auditor three days in which to sell all the lands against which judgments are rendered, should so much time be necessary; or must ho offer all which he. does offer upon the day appointed for the sale, and if there is not time to sell the whole, suspend the proceedings as to those which can not be offered for want of time, except as to such as have been once struck off, but upon which the judgment is not paid? I must confess that my mind inclines strongly to the former construction, and for the following reason; I do not see the propriety of requiring the auditor to sell or offer for sale a large number of tracts of land in a single day, and then give him two days in which to sell a single tract, or at most a small number of tracts. Further, there might be a large number of judgments, and a single day would not furnish sufficient time in which to sell the lands in order to satisfy them. In this instance there were no less than ninety-three, as will be seen by reference to the former report of this case, and I do not see how ninety-three different tracts of land could woll.be sold in a single day at public auction, especially if there was any competition, and any time allowed for bidding.

I am aware that this is not the most obvious construction. Giving this clause in connection with the whole section such construction, and the intention is, that all the land must be offered for sale on the day named in the advertisement. But in the event that any purchaser shall fail to pay the judgment and cost, then the county auditor is authorized to offer the same land on the second and third day, if not previously sold; and *this is the [142 construction which a majority of the court hold that it must receive.

Giving the section this construction, it would seem to follow, of course, that if the land was sold on a day different from that named in the advertisement, some reason consistent with law must be shown why it was so sold, and this should appear from the return of the officer effecting the sale. The object of an advertisement is that the public may be notified of the time and place of sale, that opportunity may be given for competition. This object is not attained, if an officer may advertise to sell on one day, and actually sell on another. Such proceeding can not be sustained.

The motion for a new trial is overruled, and judgment may be entered on the verdict. As, however, the defendants are entitled to relief under the occupying claimant law, the case will be continued.

Motion overruled.


text:
    Robson L. Brown v. David Witter.
    Where a vendee seeks to rescind, for want of title in the vendor, he must restore to the vendor all he received, and place him back in his original situation.
    A deed under which lands have been claimed forty years, purporting to be executed before the mayor of Georgetown, though without covenants, seal of the mayor, or certificate that he was the officer he claims to be, can not be objected to by the vendee as a substantial defect in the title-
    This is a bill in chancery from the county of Union.
    The bill is filed by a purchaser to obtain an injunction against a judgment which his vendor has recovered against him for part of the purchase money, on the ground that the vendor can not make a good title. Objections are taken to a deed of a remote grantor in the chain of title, dated in 1801, because it has no M3] witness, no covenants, and there is no evidence *that the mayor of Georgetown, before whom it purports to have been acknowledged, was the officer he claims to be. '
    It is also charged in the bill, that Witter unduly obtained the note on which the suit was brought, and th'at the witnesses at the trial proved a case against the complainant by mistake.
    On the part of the defendant, it is shown that the complainant has conveyed the land to one Matthiot with warranty.
    Lawrence, for the plaintiff.
    G. Swan, for the defendant:
    In 1801, the date of the deed objected to, no subscribing witnesses were necessary. Moore v. Vance, 1 Ohio, 1.
    The plaintiff having parted with all his interest in the land, has no other claim to relief than a possibility that he may, some day, be answerable on his warranty. He seeks to withhold the payment of the purchase money, merely because of this contingent liability. No adverse claim is set up. No one is disturbing, or threatening to disturb, his grantee. The title has been held, under the deed he objects to, without interruption, nearly forty years. The risk of any adverse claim is so small, that no man of ordinary prudence would object to the title, unless interested in withholding the consideration money.
    Besides, after such a lapse of time, a grant may well be presumed. Mayor of Hull v. Horner, 1 Cowp. 102; Hillary v. Waller, 12 Ves. 239; 2 Stark. Ev. 66 3, 5 ed.; Eldridge v. Knott, Cowp. 114; Strother v. Lucas, 12 Pet. 410 ; Stockbridge v. Stock-bridge, 14 Mass. 257; McArthur v. Gallahor, 8 Ohio, 412.
   Lane, C. J.

The plaintiff relies mainly on the ground that the defendant can not give him a good title. Other matters are contained in the bill, but they are not very intelligibly stated, and the first is all which, the facts proved, renders necessary to be noticed here.

A purchaser from a vendor who can not make a title has his ^choice of remedies. He may sue at law, to recover dam- [144 ages for the non-performance of the contract, or he may seek, in chancery, a specific performance as near as the .vendor is capable of performing, or he may rescind, by an action at law, for the purchase money, or in a bill in equity. He can not do both; he must select one of the alternatives, either to enforce or rescind. If he chooses to rescind, he must be able to restore the vendor all he received, and place him back in-his original situation. If he rely upon a void contract, he can claim nothing of the subject passed to him under it.

In the present case, it is shown that the plaintiff has conveyed this land to Matthiot, and it is out of his power to restore the title to the defendant. He has not, then, any rights against the vendor, except to claim its performance; to do which he must first ’show he has performed, or offered to perform, himself. The case shows he has not paid the whole purchase money, and he can not de mand a d-ed until such payment is made.

But the objection of want of title is without foundation. The case has been referred to a master for examination, who finds no defect, except a deed in 1801, executed before the mayor of Georgetown, without covenants, seal of mayor, or certificate that he was the officer he claims to be.

Now it is possible that the officer, before whom the acknowledgment was made, did not possess the requisite authority. But all this happened forty years ago, and, within this time, the land has been repeatedly conveyed, and the risk of any claim from this source seems to us exceedingly improbable. But where the title can be made secure enough to satisfy the doubts of a man of ordinary prudence, the vendor may insist on a performance, and constrain the purchaser to rely on his warranty, without silencing every doubt or surmise which may be propounded. While the court will give the purchaser reasonable assurance of security, it will not countenance the idle scruples of one interested in withholding the purchase money.

The plaintiff may have a title, on payment of the judgment, 145] *and the costs of this suit. As the injunction was causelessly obtained, it may be dissolved, and the judgment entered for the penalty. If he pay the amount, with the costs of this suit, the defendant may be decreed to convey in sixty days afterward.