author: Judge Sherman:

text:
    *Administrators of Backus v. R. McCoy.
    -Covenant of seizin m a deed, when the covenantor is in possession, claiming title, is a real covenant running with the land. But where the covenantor is not in possession, and the title is defective, it is broken as soon as made, and never attaches to the land, being in the nature of a personal covenant.
    Seizin in fact, that is, actual possession, at the time the covenant is made, is sufficient to sustain it.
    Consideration paid, and the interest upon it, the rule of damages in action upon covenant of seizin.
    This cause was adjourned for decision here by the Supreme Court, sitting in Franklin-county, and came up for decision upon ■the cause of action set out in the declaration.

      It was an action of covenant, and the breach alleged in the declaration was that of the covenant of seizin, without alleging any eviction, or specifying any damage sustained by the intestate, in consequence of the alleged defect of title.
    The defendant pleaded in bar that the premises in question were seized and sold in execution, on a judgment against the intestate in his lifetime, and conveyed by sheriff’s deed to the purchaser before any damage was sustained by the intestate. The replication averred that the alienation was made without the consent of the intestate and for a sum less than the fair value. The defendant demurred generally.
    Ewing, in support of the demurrer:
    I presume there will be no attempt to support the replication; that is clearly bad, and filed, as we suppose, merely to draw the demurrer from defendants.
    Nor is it important that we should support our plea, for the same point arises on an objection to the declaration, and is unembarrassed with incidental difficulties. On this, however, I would merely observe that if the assignee of the grantor, in a deed made to a man and his assigns, can receive the transfer of a covenant of seizin in such deed, then is the purchaser at sheriff’s sale, and not the original grantee, entitled to the benefit of this covenant. For, in cases of inherent covenants, the purchaser under a fi. fa. may take advantage of the covenants, as assigned, 5 Rep. 17; Shepherd’s Touchstone, 176; so also the heirs.
    By inherent covenants are meant those which regard the estate itself, and are not collateral to it, as assurances of title and possession, and these go to the heir or assignee without regard to the time when broken, unless the breach be so effectual as to dissolve the connection between the grantee and the estate, and put it out of his power to assign *or to pass anything by descent. If, then, this be an inherent covenant, and if the breach be not such as to arrest the estate and defeat the descendible quality, the heir, and not the administrator, should have brought this suit; and the declaration is bad, as it shows no right in the administrator to sue.
    If, in a deed, there be a covenant of warranty, and the grantee be evicted by title paramount and die, the right of action passes to the administrator, instead of descending to the heir, because the breach went to the whole estate, and the grantee had nothing left in the land which could pass to the heir. The covenant was-not only broken in law, but the full measure of damages had been-sustained in the lifetime of the grantor.
    But such is not the ease when there is a mere breach of a covenant of seizin, unaccompanied with an ouster or disturbance of possession. There may still be something, by virtue of this deed,, to descend to the heir, or pass to the assignee. For example: A. conveys to B., by deed, containing a covenant of seizin; B. enters,, and dies, seized, in fact, and afterward a perfect estate descends upon A. The heir of B. is .in of such estate by estoppel. And if a. case could bo put in which that, or some analogous principle of the common law, would not perfect the title of the heir or assignee, by passing to his benefit the after-acquired title of the grantor, equity would come to his aid'and give him the title. It is, therefore, a false position that when a covenant of seizin is broken, there is nothing remaining in the grantee but choice in action,, which can not pass to his heir or assignee. The reasoning which supports this position is artificial, and based on a misconception of the nature of the.covenant and the rights of the parties-under it.
    , But we admit that a grantee may, at his election (before an assignment, legal or conventional), bring his action for this breach, and if the title be wholly invalid recover his purchase money and interest. Such recovery would amount to a rescission of the conveyance, and the deed could never afterward be used by the grantee, or any person claiming under him, as in the case of a recovery on a covenant or warranty after eviction. If the covenantor afterward acquire title to the premises warranted, the grantee shall be estopped by ’this judgment on the breach of covenant, from setting up title by the same deed to the promises. 9 Mass. 34. This would be reasonable, and we take it to be law.
    But the doctrine contended,for by the plaintiff’s counsel, and that which appears to be settled in New York, is most iniquitous and unjust. Take the case of a deed, with a covenant of seizin only. The grantee, before a defect in his title is discovered, quitclaims and receives the value of the premises. Afterward, a defect is discovered in the title by the grantor; he was not seized of an indefeasible estate. The grantee recovers back his purchase money and retains the price which he has received for the land. Or, if the deed contain also a covenant of warranty, and the grantee die before eviction, the executor would recover back the purchase money and interest on his covenant of seizin, and the heir would keep the estate; or if evicted by title paramount, recover again the purchase money and interest. Surely a doctrine can not be supported as the common law of our country, where it leads to consequences like these.
    Such is not, nor has it ever been, the- common law of England. The covenant of seizin has there always been holden an inherent covenant, for “it doth in something concern the thing dismissed.” 5 Rep. 17. And it appears by a precedent in Coke’s Entries, 111, which is cited in 4 Johns. 74, that the heir might sustain his action for its breach.
    The case of Kingdon, executor, etc. v. Nottle, 1 Mau. & Selw. 355, is a leading case in the modern English Reports on the subject, and is precisely in point. It was there decided, on demurrer, that the executrix could not sustain her action for the breach of a covenant of seizin, made to her testator, without showing that some special damage occurred in his lifetime, in consequence of the breach. In Kingdon v. Nottle, 4 Mau. & Selw. 53, the heir brought his action and recovered on the same covenant. So that the doctrine may be considered as settled in England (see also Taunton, 418, in point,.and 2 Mau. & Selw. 408, which bears remotely on the case), and it is settled conformably to the principles of common law. By overlooking the rights which the heir or assignee may acquire to even an imperfect estate, and by forgettihg the important ^principle, that whenever any interest in land (however small) passes by the deed, it draws with it all those covenants which “ in anything concern the realty,” courts have, in some instances, drawn the most mischievous consequences, from that which at common law is a sound and salutary principle.
    In New York these consequences have been pushed ad absurdum; this single case will suffice as a specimen. A. conveyed to B., with covenant of seizin ; afterward B. reconveyed in fee to A. A defect existing in the original title of A., B. brought his action on the covenant of seizin, and recovered back his purchase money and interest.
    The doctrine in Massachusetts, though in our opinion a departure from the common law, is more reasonable and just, and is, on the wholo, a system not illy adapted to the exigencies of the country.
    There, the covenant of seizin, if broken at ail, is held to be a chose in action, which can not be assigned, or descend to the heir. But seizin, in fact, is holden sufficient to support this covenant, and its .attendant, that the grantor has good right to convey. 2 Mass. 433, 455. These covenants in Massachusetts are effective in one case, when the warranty is not. If the.purchaser can not enter, he can not be evicted, and the warranty will not serve him, but the covenant of seizin will.
    Wilcox and J. R. Swan, for plaintiff:
    Two questions are presented to the court:
    1. Is this action properly brought in the name of the administrator? A covenant “ that the grantor is seized, or that he has good right and lawful authority to convey, is broken as soon as it is made, if, in truth, the grantor had no estate in the premises.” 'Shepherd’s Touchstone, 170; 1 Ohio, 389.
    Covenant of seizin, after breach, is a chose in action, and can not be assigned. 2 Johns. 1; 2 Mass. 433, 455.
    Covenant of seizin does not run with the land, and the heir of the grantee can not maintain an action, but the administrator oi executor only. 4 Johns. 72, and eases cited.
    Bennet v. Irwin, 3 Johns. 359. The action in this case was brought by the administrator of the grantee, and he recovered without objection.
    *It is true that in one or two modern English cases a rule somewhat different has been established; and where the covenant of seizin has been broken, in the lifetime of the ancestor, the breach has been considered a continuing breach, so as to entitle the heir to his action.' 4 Mau. & Selw. 53.
    The policy of the English government requires a broad distinction to be kept up between the landed estates of the kingdom and personal property. Hence, land in the hands of the heir, is not liable for the simple contract debts of the ancestor. But in our country, where real estate, as well as personal, is' made assets in the hands of the administrator, policy requires that the administrator should be empowered to reduce into his own possession all the rights, credits, and choses in action belonging to the estate. A different rule, particularly in cases of insolvent estates, would give rise to great difficulties, and as the counsel for the defendant allege, in relation to certain decisions of the Supreme Court of New York, the consequences might be “pushed ad absurdum.”

    Is a sale of the premises upon fi.fa., as alleged in the plea, a bar to this action ?

      The plea admits that the defendant, at the time of the deed executed, had not a good title to the premises. Samuel Barr, the purchaser, therefore, took nothing but the sheriff’s deed. Roades and Symmes.
    3 Johns. 359. Irwin sold the premises to Yance for one thousand four hundred and eight dollars, with a covenant of seizin. Afterward, Yance quitclaimed to Irwin, for one thousand dollars. Then the title failed. The administrator of Yance brought an action on the covenant of seizin, and recovered the original consideration money and interest. This is the “ad absurdum” case decided by Kent, Chief Justice, Thompson, Spencer, Yan Ness, and Yates, Justices.
    So in Massachusetts. The grantee, after a quitclaim to a third person, sustained an action against the grantor, on the covenant of power and right to convey, while his releasee continued in the undisturbed possession. 2 Mass. 455.
    In an action on the covenant of seizin, it is not necessary either to allege or prove eviction or a disturbance of the possession. Bradshaw’s case, 9 Co.; Cro. Jas. 304; 2 Saund. *181, note a; 2 Johns. 1; 7 Johns. 376; 2 Mass. 433; 4 Dallas, 436; 4 Cranch, 421; 1 Bay, 256, 325; 3 Call, 326, quoted; 1 Manford, 500; 14 Johns. 248.
    To obviate the force of these authorities, it is alleged, on the part of the defendant, that in Massachusetts a possession, in fact7 .without right, is sufficient to satisfy the covenants of seizin, and of good right and lawful authority to sell and convey in fee simple. This question is not presented upon the record, but should the court take it into consideration, the plaintiff will refer to the following cases: Shep. Touch. 170, cited above. A covenant “ that the grantor is seized in fee simple, or that he has good right and lawful authority to convey in foe,” are synonymous, and go to the title. Cruise Dig., tit. 32, chap. 5, sec. 37-39; S. P., Cro. Jas. 304.
    “ Seizin in fee,” and “ seizin of an indefeasible estate in fee,” are considered one and the same. Cro. Jas. 370.
    Covenant of seizin goes to the title. 4 Johns. 17; 11 Johns. 248; 4 Dallas, 436.
    A covenant “ that the grantor is lawfully seized in fee,” goes to-the title. 1 Bay, 265, 266, 326.
    4 Cranch, 421. The covenants in this case are precisely the same as in the case now before the court. A question of pleading was presented, and the court gave no opinion as to the evidence necessary to show a breach.
    Possession in the grantor at the time of the execution of a deed is not necessary in the State of Ohio to pass a valid title. The title passes, even if there be an adverse possession. If this court adopt the Massachusetts system, they must permit a grantee to recover on his covenant of seizin, although he has a good title, provided the grantor had not an actual possession by right or by wrong at the time of the deed executed; a doctrine which has a strong tendency “ad absurdum.”

    It can not be pretended that the sale of a sheriff, upon a judgment rendered in invitum, divested Backus of any rights which would have remained in him, if he had, by deed, conveyed the premises to Samuel Barr; and the authorities cited, show, that notwithstanding such a deed, the plaintiff might sustain the present action. What Backus may have done with the property, is none of McCoy’s business. All *that McCoy has to do, is to show that he had, in truth, such a title as he covenanted with Backus that he had. And if he had not, the law says he shall refund to Backus the consideration money and interest; the contract between them shall be disaffirmed; the parties shall be put in statu quo, and McCoy may resort to his grantor for his indemnity. Suppose Backus, after his deed from McCoy, had purchased in the outstanding title, for twenty-five cents, or twenty-five thousand dollars; could this fact in any way affect the previous covenants of McCoy ? Title by estoppel, rebutter, or inurement, has nothing to do with the case. The only question is this: Had McCoy, at the time he sold the property, and pocketed eleven thousand dollars of Backus’ money, such a title to the property as he undertook to convey ? Was he then “ lawfully seized in fee simple, and had he good right and lawful authority to sell and convey in fee simple?” If not, his covenants were broken, and the law has fixed the rule of' damages; nor can the breach be cured, nor the damages mitigated by any subsequent patchwork of estoppel, rebutter, or inurement. Nor is there any legal hardship in the case. The rendition o‘f a judgment, in this case, dis-affirms the contract, and McCoy becomes reinvested with all the rights he conveyed to Backus. 9 Mass. 34. The amount of the defendant’s argument is this: “In 1818, I received from Backus ■eleven thousand dollars, which I have vested very profitably in ■mercantile stock. It is true I conveyed Backus no title, but he has shifted to get off the property, for three thousand dollars, as ■much as it was worth, anyhow, and I dislike very much to refund this eleven thousand dollars, with interest; indeed, it is extremely inconvenient, and if compelled to do so, I shall really think the ■law is ‘pushed ad absurdum.’”

    Extreme cases have been supposed on the part of defendant’s ■counsel, without any particular bearing on the present case. Whether any of the covenants used in the State of Ohio can be considered as real covenants, running with the land, may perhaps admit of great doubt. The adoption of the warranty in the United States, ■which in England has fallen into disuse, since the statute of uses, ■has created much confusion upon the subject of covenants. By holding all covenants to be personal, confined to grantor and grantee, *much inconvenience may be remedied. But plaintiff’s counsel do not understand that this matter is now before the ■court.
   Opinion of the court, by

Judge Sherman:

This action being brought to recover damages for a breach of the covenant of seizin, in a deed from the defendant, McCoy, to the plaintiff’s intestate, the counsel have not confined themselves to the question necessarily growing out of the demurrer, but have argued the general questions of when, under what circumstances, and' to what extent the grantor, in a deed, is liable under the •covenant of seizin. This covenant is one of very general use in conveyances of land, in this state, and it is important that all persons should understand its nature; the liability of the grantor •thereon, and the security the grantee thereby acquires. This being ■the first time an action founded on this covenant alone, unconnected with covenants of the grantor’s right to sell, for quiet enjoyment, or against incumbrances, has come before the whole court for .adjudication, we have not confined ourselves to the'determination ■of those questions alone, arising from the demurrer.

The covenant of seizin is made for the benefit of the grantee, in respect of the land. It is not understood as a contract in which •the immediate parties are alone interested, but as intended for the security of all subsequent grantees. It is usually extended, in terms, to heirs and assigns, as well as executors.

If it can justly be considered as a real covenant, it will be* annexed to, and run with the land, and either go to the assignee, or descend to the heir, so long as the estate, such as it may be, to which the covenant is annexed, is in possession of the covenantee, or those claiming under him. But if the covenant of seizinis strictly a personal covenant, as it respects the course in which it shall go to the respresentatives of the covenantee, and must .be' broken, if at all, the moment the deed is executed, it can neither go to the assignee nor descend to the heir. The right of the-grantee in such case would be a mere right of action for the recovery of damages, and upon his death would go to his personal representatives.

*The English authorities, though not numerous on the eovenant of seizin, show, that so long as the grantee, or those claiming under him, remain in possession of the land, the covenant of seizin will attend, and run with the land, and that the heir or grantee, if evicted by paramount title, can recover upon this covenant. In Coke’s Entries, 111, cited in 4 Johns. 74, a case is reported, in which it was held that the heir might sustain ah action on the covenant of seizin, he having been evicted after the death of his ancestor, who entered in his lifetime, and-died seized. In Lucy v. Livingston, 1 Vent. 175; S. T., 2 Lev. 26, which was an action by the executors, on the covenant, for quiet enjoyment, the breach assigned was that the plaintiff’s testator was-evicted in his lifetime. It was held by the court, “ that the eviction being to the testator, he can not have an heir, or assignee of his land, and so the damages belong to the executors, for they represent the person of the testator.” In the recent case of Kingdon, executor, v. Nottle, 1 Mau. & Selw. 355, the court held that the-covenant of seizin was a real Covenant, running with the land, and would pass with the estate, to the assignee, or devolve upon the heir; and that the executor could not sustain an action, without showing an eviction, or some special damage sustained by the-testator. In Kingdon v. Nottle, 4 Mau. & Selw. 53, tho deviseebrought his action on the same covenant, and recovered; the-court repeating the same doctrine that the covenant of seizin is-a real covenant, and runs with the land. In King v. Jones et al., 5 Term, 418, the grantor covenanted that he would make further assurance upon request of the purchaser. The ancestor of the-plaintiff requested further assurance, which was refused; when he-died, and his heir, the plaintiff, was afterward evicted, by title paramount, and it was held, that the heir could sustain an action; that it was a covenant running with land, and the ultimate damage not being sustained, in the lifetime of the ancestor, the covenant with the land devolved upon the heir. The decision was affirmed, on error, in the court of the King’s Bench. 4 Mau. & Selw. 188. It seems to be well settled, by these recent decisions, that when the heir or assignee, acquires any interest in the land, however small, by even an imperfect or defective title, he shall be entitled to the benefit *of all those covenants that concern the realty, and where he has been evicted, by paramount title, he is the party damnified, by the non-performance of the grantor’s covenants, and, for such breach, may sustain an action. This seems to be reasonable in itself, as well as in accordance with the terms of the covenant. By considering the covenant of seizin, as a real covenant, attendant upon the inheritance, it will form a part of every grantee’s security, and make that, which otherwise must be either a dead letter, or a means of injustice, a most useful and beneficial covenant. A dead letter, when an intermediate conveyance has taken place, between the making of the covenant and the discovery of the defect of title, and the covenantee refuses to bring suit. A means of injustice, when, after the covenantee has sold and conveyed without covenants, he brings, and sustains an action, on the ground that the covenant was broken, the moment it was entered into, and could not thereafter be assigned. When lands are granted in fee, by such a conveyance as will pass a fee, and the grantor covenants that he is seized in fee, we can perceive no objection, legal or equitable, to this covenant, as well ns the covenant of warranty, passing with the land, so long as the purchaser, and the successive grantees under him, remain in the undisturbed possession and enjoyment of the land.

We are aware that the Supreme Court of New York have taken somewhat of a different view of this covenant; but highly' as we respect the decisions of that court, and much as we regret now to differ from them in opinion, we feel bound to express the result of our own judgments in every case submitted to our consideration.

The Supreme Court of Massachusetts, 2 Mass. 433, have held, that a seizin, in fact, of the grantor, at the time the deed was executed, was a sufficient compliance with the covenant of seizin in the deed. This determination appears to us, to be founded on sound and correct principles. If the grantor is in the exclusive possession of the land, at the time of the conveyance, claiming a fee adverse to the owner, although he was in by his own disseizin, his covenant of seizin is not broken, until the purchaser, or those claiming under him, are evicted, by title paramount. He has a seizin in deed, as contradistinguished from a seizin in law, sufficient- *to protect him from liability, under his covenant, so long as those claiming under him may continue so seized. Actual disseizin, or the actual adverse possession of the lands of another, is the commencement of a right, which, by lapse of time, may ripen into a perfect title in the disseizor Or possessor; and, during the time that the grantee of such disseizor remains in the undisturbed possession of the lands, by reason of the conveyance of such disseizor, he can not maintain an action upon the covenant of seizin. «No breach of such covenant will have taken place, if the grantor was seized in deed at the time of the conveyance, however that seizin may hav.e been acquired. If the grantor, at the time of executing this conveyance, was in possession of the land, either as disseizor, or under color of title, it can not be said that he was not seized of an-estate in the premises. When the grantor, is not seized, either in deed or in law, at the time of conveying, the covenant of seizin must be broken, at the moment of •executing the deed containing it; and becomes thereby a mere chose in action, and no longer annexed to, or passing with the land. This is the case, when the grounds are vacant, and the grantee has no title. But when- the grantor is, at the time of the conveyance, in possession, under color of title, claiming a fee, the covenant of seizin is a real covenant annexed to the land, and passes with it to the heir or assignee, until he who has the paramount title may assert it, and evict the person in possession, when it becomes a mere claim to damages, to be enforced by him who has been evicted, and, like- any other, when in action, no longer assignable at common law.

The rule of damages, under a covenant of seizin, where a breach has been shown, is the consideration money and interest. It is the value of the land, as ascertained by the parties, and the money comes in lieu of the land lost by the non-performance of the covenant. Damages can not be awarded, either for the increased value of the land, or the improvements made. In the latter, the legislature have provided an ample remedy, in favor of the occupying claimant; and awarding the former, would, in many cases, inflict a severe penalty on grantors, who conveyed, in good faith, laving perfect confidence in their title to the lands they conveyed. If the grantor has practiced any fraud in *the sale, the grantee may have his remedy, by an action on the case, in the nature of a writ of deceit. It is not unfrequently the case, that in conveying large tracts of land, especially in the Virginia military district, the grantor is seized, in the manner he covenants, of part only of the lands sold, and by means of interfering claims, defective entries, or other causes, he has no valid title to the residue. The measure of damages in such a case is the same proportion of the consideration money and interest, as the value of the lands of which the grantor was not seized is to the value of the whole; the consideration money being considered the value of the whole premises.

The pleadings in this case having terminated in a demurrer to the plaintiffs replication, has made it necessary to look into those pleadings, with reference to the principles governing the covenant of seizin, and the breaches assigned.

The replication is clearly bad, and is not attempted to be sup* ported. The plea is equally bad; it neither denies nor confesses, and avoids the want of seizin of the defendant, of the lands, at the-time of the conveyance, the breach assigned in the declaration ; but avers that before any actual damages had been sustained, the lands were sold and conveyed by the sheriff, upon execution, as-the property of Backus, the intestate. The declaration avers, generally, a want of seizin by McCoy, and this averment being unanswered -by the plea, it must be taken that McCoy, at the time of executing the conveyance, was neither seized in law nor deed of the premises conveyed, and of course the covenant was broken the moment it was entered into, and could not thereafter be assigned-by the sheriffs deed, nor descend to the heirs of Backus, but must, with all other dioses in action, pass to the personal representatives. The plea and replication, both being insufficient, there must- be-judgment for the plaintiff.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    *Bernard Cass v. Lyttleton Adams and John Bainter.
    Plea of goods taken in execution upon the judgment, on appeal, sufficient de fense to an action on the appeal bond.
    Court in hank, after opinion intimated on general demurrer, will permit it to be withdrawn, and other pleadings substituted.
    This was an action of debt upon a bond given to perfect an appeal from the court of common pleas to the Supreme Court. The declaration recited the condition of the bond, and set-out, that upon the appeal in the original case, judgment was rendered for the appellee for a specific sum, which remained unpaid.
    The defendants pleaded that, after the judgment rendered in the Gase appealed, and before the commencement of this 'suit, the plaintiff sued out a writ of fi.fa. and put it into the hands of the sheriff, who levied it upon the goods of the judgment debtor, to a large amount, and returned such levy upon the writ of execution. To this plea, the plaintiff demurred. The court of common pleas overruled the demurrer, and gave judgment for the defendants, and the plaintiff appealed to the Supreme Court. The decision of the cause was adjourned here from Muskingum county.
    Goddard, for the defendants, argued :
    That whatever would satisfy the original judgment, was a good plea to an action on the bond. He cited King v. Goodwin, 16 Mass. 63; 1 Chitty, 481; Clark v. Withers, 2 Ld. Raym. 1072; Rook v. Wilmot, Cro. Eliz. 209; Mountney v. Andrews, Id. 337; Ladd v. Blunt, 4 Mass. 402; Hoyt v. Hudson, 12 Johns. 207, to show that arrest on a ca. sa., or goods levied on a fi.fa. until disposed of, were to be regarded as satisfaction.
    Sillman, for the plaintiff, admitted:
    That whatever operated as a satisfaction of the judgment, would constitute a good plea in bar, for the security on the appeal bond. But he insisted nothing short of satisfaction would be available for him. He reviewed the cases cited, and maintained that each stood upon its own particular circumstances. He cited Little and others v. Delaney, 5 Bin. 269.

      He further contended, that at the time the alleged levy was made, the defendants had it in their power to obtain back the property, upon giving a bond, unless it would sell for a certain portion of a valuation, which, he urged, made it an exception to the general principle of the cases cited. He further maintained that the suit on the appeal bond *was acumulativo security, and might be resorted to, even while the remedy by execution on the original judgment was in progress; for which he cited Patterson v. Swan and others, 9 Serg. & Rawl. 19.
   By the Court:

The appeal bond is given expressly to secure the payment of the sum that may be recovered upon the appeal, and we incline to the opinion that whatever can -be deemed a legal satisfaction of the judgment is a bar to an action on the bond, although the' money is not actually paid. The arrest of the defendant upon a ca. sa. is a satisfaction, though no money bo paid. So is the levy of an execution upon goods or land, whilst the levy is in force and undisposed of. These principles are well settled. And the circumstances of our peculiar law, when the levy was made, does not wary the case, because the debtor could only avail himself of the ¡benefit of that law, by giving security, which is substituted for the goods in the sheriff's hands, and leaves the principle the same, where such bond is not given, as though the law did not exist. If the bond had been given, and the goods restored, that might bo .an answer to the plea, as might any other legal disposition of the levy, leaving the judgment unsatisfied. But the demurrer admits the levy to be in force and effect, and consequently admits the .judgment satisfied. •

This opinion being suggested at the request of the plaintiff’s counsel, leave was given to withdraw the demurrer, by proving that, if legal, it was made on sufficient authority, and reply to the plea.


author: By the Court :

text:
    *Treasurer of Pickaway, for the use of N. Oulrey and Wife, v. Wm. Hall, Ex’r of Jos. Hall.
    Heir can not sustain an action against security on -an administrator's bond, until the administrator’s accounts are settled with the court, or plaintiffs right established by judgment. .
    Person suing as heir, must show how he become so in the declaration.
    This was an action of debt upon an administration bond. The plaintiffs set out in their declaration all the proper facts, showing the granting of letters of administration, and executing the bond, by the defendant’s testator, as security for the administration. They then set out the bond and condition, and assigned as breaches that the administratrix, generally, did not perform the duties required by law; that she did not return a true inventory; did not return an accurate statement of sales, and of moneys received and paid out; that she had not presented her account for settlement, nor paid to the parties entitled the moneys’due to them, but had wasted the goods, etc., that came to her hands. And also, that the administratrix had neglected and refused, though often requested and demanded, particularly on March 30,1827, to pay the said Nicholas and Eebecca, said Eebecca being one of the heirs of Joseph Glaze, deceased, the proportion of moneys before that time come to the hands of the administratrix, to which said Eebecca, as heir at law, was entitled.
    To this declaration there was a general demurrer, which was overruled by the court of common pleas of Pickaway county, and the defendant appealed to the Supreme Court, and the cause was adjourned here for decision.
    Olds, for the defendant,
    contended that the declaration Avas defective in two particulars:

      First. It contained no averment of a balance found due from the administrator upon settlement with the court, and no averment of a right in plaintiffs and a liability in the defendant, ascertained by the judgment of a court.

      Second. It did not show how the plaintiffs made title as heirs.

      In support of the first point, ho cited 1 Wash. 31; 1 Mun. 1; 4 Mun. 289; 2 Hen. & Mun. 8; 9 Mass. 114.
    On the second point, he cited 2 Ohio, 165-167.
    Doane, for the plaintiff,
    argued, on the first point, that the doctrine relied upon by the defendant was peculiar to *the courts of Virginia, and had been established there without reference to any authority. He cited 1 Salk. 163; Cow. 140; 2 Johns. Cases, 376; 1 Johns. 311, to show that similar suits had been sustained without the averments insisted upon by the defendant’s counsel.
    On the second point, he insisted the exception could only be taken by special demurrer, and argued that the case was distinguishable from the one cited from Ohio Reports by the defendant’s counsel.
   By the Court :

The security in an administration bond is not the proper person to adjust the rights of parties interested in the administration. He can know nothing of,the true state of the accounts, or of the conduct of the administrator, and can not be the most suitable person to litigate or defend them. It is clear, therefore, that it would seem most proper to hold him only responsible where the right of the claimant has been judicially established, either by settlement with the court, or judgment in an action direct against the administrator. We do not thinks the English or New York authorities cited by the plaintiff’s counsel sustain the position he takes; and we consider it much the safer doctrine to require proceedings, first against the administrator himself, and only allow a resort to the surety when nothing is to be contested but the question of payment.

We are equally clear that the plaintiff’s declaration is defective upon the second ground of exception.. Under our law, if the intestate leave a widow and no child, the widow takes the whole personal estate, and thus, as heir, would be entitled to an account for the whole. If the plaintiff claim as heir, he must show how he makes himself so, that his rights may judicially appear to the court, and the proportion of the estate due to him be ascertained.

Judgment for the defendant.


text:
    *Phœbe Harding v. Trustees of New Haven Twp.
    Individual can sustain a suit against a township.
    Suit may be brought against a corporation before a justice of the peace.
    For township liabilities, the action lies against the trustees of the township, without naming them.
    This cause came before the court upon a writ of error to the court of common pleas, and was argued by Orris Parish, for plaintiff in error. The case is fully stated in the opinion of the court, by Judge Burnet.
   By the Court :

The plaintiff had been employed to support a pauper, chargeable on New Haven township, at a stipulated price. Having performed the contract on her part, and payment being withheld, she instituted a suit against the trustees of the township, before a justice of the peace, and recovered a judgment for the amount due. The defendants removed the proceeding by certiorari to the common pleas. A number of reasons were assigned for setting them aside. Those on which the case turned were:

First. That no suit can be sustained by an individual against a township.

iSecond. That a township, being a body corporate, can not be sued before a justice of the peace.

The court of common pleas gave judgment that the record be quashed, annulled, and held for naught, and that plaintiffs in certiorari recover their costs.

The case has been removed to this court by writ of error. The errors relied on by the plaintiff present four questions:

1. Can a suit be sustained against a township by an individual?

2. Can a township, being a body corporate, be sued before a justice of the peace?

3. If a justice have jurisdiction, may the suit be brought in the name of the trustees, or must it be in the name of the township ?

4. Was it the duty of the court, having quashed the proceedings, to'retain the cause for a hearing on the merits?

First. The act for the incorporation of townships, section 1, provides, in general terms, that “they shall be capable of suing and being sued.” It does not designate the persons *by whom suits may be brought, nor does it exclude any from bringing them. It makes no discrimination. The right of maintaining a suit is general, and may be improved by an individual, a company, or a corporation. This objection, therefore, was not well taken, and can not be sustained.

Second. The second ground taken in support of the judgment of the court below is, that a body corporate can not be sued before a justice of the peace. In support of this position, it is contended that the jurisdiction of justices was designed by the legislature to extend only to causes requiring a personal appearance, and in which the defendant is sued in his own-right. 2 Bac. 11; Way v. Carey, 1 N. Y. Term, 191; Jones v. Reid, Id. 594, are relied on to support the doctrine.

Section 5 of the act defining the duties of justices of the peace, declares that, in civil cases, their powers shall be co-extensive with their townships, and that their jurisdiction in all such cases shall extend, under the limitations and restrictions therein contained, to any sum not exceeding one hundred dollars. The limitation referred to is in section 52, which has no reference to the case before us. That section contains the only limitation imposed on the jurisdiction of a justice, and it does not restrict it in cases where corporations are parties.

But this question seems to be put at rest by section 1 of the act providing for the incorporation of townships, which declares that “they shall be capable of suing and of being sued, pleading and being impleaded, in any court of law or equity in this state.” The justices’ court was established before the passing of this act. It was in existence at the time, and is clearly embraced in the terms that are used. In order to render the case of Way v. Carey applicable, it ought to have been shown that the statutes of Ohio and of Now York, in relation to the jurisdiction of justices of the peace, are substantially alike. This, however, is not done. On the contrary, we must presume, from the language used, that they are substantially variant. We have no objection to the principles laid down in the case of Jones v. Reid, that inferior jurisdictions should bo confined strictly to the authority given them; and that, while liberality is exercised in reviewing their proceedings, as far as respects regularity and *form, they should be held strictly to the limits of jurisdiction, prescribed by the statute. But, at the same time, we feel no disposition to encroach on the powers that are expressly given him. The inconvenience that may attend the exercise of particular jurisdictions, or the want of efficacy in the means prescribed to execute judicial decisions, belong to the legislative dejmrtment. They have given to the Supreme Court a general power over all other judicial tribunals of this state, but in matters of jurisdiction clearly given we have no discretion, nor can we restrain the exercise of it, unless it is manifestly unwarranted by the constitution.

Ihird. The third inquiry is, can a suit be brought in the name of the trustees, or must it be in the name of the township? Statutes creating corporations usually give them corporate names, and authorize them to sue and be sued by the name so given. Hence the general rule, that in suits by or against corporations, the corporate name must be strictly adhered to. Our statute incorporating townships enacts that the townships which have been, or that shall hereafter be laid off, shall be bodies politic, and corporate; and that they shall be capable of suing and being sued, etc. It does not give them corporate names, nor does it direct by what names suits shall be commenced and carried on, for or against them.

Section 5 of the act for the relief of the poor, under which the claim of this plaintiff originated, directs, that when persons become chargeable in a township, in which they have not gained a settlement, the.overseers of the poor of such townships, shall remove them to the township, where they were last legally settled; and that the overseers of the poor of such townships, shall receive and provide for them; and that the township in which they have gained a settlement, shall pay the overseers of the township which have supported and removed them all reasonable charges, etc.; and on a refusal, may be compelled by an action of debt, brought against the trustees of said township; and the trustees of each and every township are hereby empowered to sustain said action against the trustees of' any other township in this state. In this section, the phrases, “the township, the overseers of the township and the trustees of the township,” seem to be used promiscuously, as synonymous ^expressions. On the removal of a pauper, the township to which ho is removed, is made liable to the overseers of the township from which he is removed, and on default of payment, the trustees of the one township may maintain'an ac« tion against the trustees of the other.

The statutes, to say the least of them, are not as explicit as they might be, but the most obvious construction of them seems to be, that the suit should be brought against the trustees, and not against the township by its name. It was not intended to render these corporations liable in some cases by process against their trustees,- and in others by process in a different name, and as section 5 directs suits for the benefit of townships to be brought against the trustees of other townships, the conclusion seems to be, that that should be the form of the process in all cases. The effect of the judgment, or the extent of its lien, will be the same whether it be brought against the township, as the defendant, or against the trustees. In either case the rights of the corporation alone will be bound to answer the amount.

There is not anything in the nature of the case, or in the proceedings to be had in it, incongruous with the rule here adopted. The suit may be carried on to final judgment in either way, with equal facility, and with equal conformity to the rules of pleading. Had the legislature given appropriate names to these corporations, or directed by what name, or style they might sue and be sued, it is as probable that they would have adopted the one form as the other, and as far as their preference is indicated by the laws, it is in favor of the mode now adopted. The trustees are the persons by whom the business of the township is principally conducted. They manage their funds, and generally represent them in all their concerns. There seems, therefore, to be a propriety in designating them as the persons by whom, and against whom, legal proceedings are to be carried on, in cases affecting the rights of townships. But this branch of the case presents another question, involving at least an equal difficulty.

Is it proper to sue the trustees, as such, by their individual names, or by the general appellation of “ the trustees of the township?” The suit must be considered as brought against *the corporation, which has perpetual succession ; if, therefore, it be brought in the name of the trustees, they ought to be designated in such away as to represent the corporation, with its incident of uninterrupted succession. There should not, at any stage of the proceedings, bean incongruity between the form and the substance, or between the form of designating the party, and the real party. If the same trustee could be co-existent with the corporation, there would be less impropriety in naming them. But this is impracticable. They are liable to be changed every year. This circumstance is sufficient to show, that it is not only unnecessary, but improper to set out the names of the trustees.

We have always treated the proceedings of justices of the peace with great liberality and indulgence, and have referred their irregularities, as far as possible, to form, so as to admit of amendment, whenever it could be done, without violating any established rule of law or practice. . On this point there has not been any adjudication or any established or uniform mode of proceeding. Suits have been brought, and judgments rendered in both forms, in cases in which the question was not raised. The names of the trustees, as they appeared on the transcript of the justice, may be considered as surplusage, and may be erased without affecting the sense and meaning.

In many cases where defendants are sued as administrators, the naming of them administrators is considered to be surplusage, and judgment rendered against them de bonispropriis. This transcript shows that the suit was commenced against “ Fisley, Barrey, and Palmer, trustees of New Haven township.” The manifest design of the plaintiff was to sue the corporation, and from what has been just stated, the process should have been against the “trustees of New Haven township;” so that an erasure of the names will leave the transcript as it ought to have been in the first instance, and as it was the intention of the party that it should be when she applied to the justice for process. If it be said that this is an unusual extension of the privilege of amendment, we refer the objector to the consequences that would follow were we to require of justices the same attention to regularity and form which has been considered necessary in the proceedings of courts of record. The *fact is that this court has always taken great latitude of discretion in deciding upon the proceedings of inferior tribunals of limited jurisdiction, except on questions involving their right of jurisdiction, and we have done so from a conviction that a different course would not only destroy their usefulness, but render them in a great degree deceptive and mischievous. Continuing to act on this principle, the names of the trustees are considered as surplusage, and subject to be amended at any time. The court of common pleas, therefore, erred in quashing the proceedings of the justice.

The opinion already given renders it unnecessary to consider the last point, though it would seem at first view that if the opinion of the court below could have been sustained on other grounds, that objection could not have prevailed. For if the magistrate had not jurisdiction of the case, or if the township was not liable to answer to the suit of an individual, no valuable purpose could be answered by retaining the cause, and further proceedings would only have produced unnecessary cost.

Judgment reversed.


author: Judge Burnet:

text:
    Lessee of Holt’s Heirs v. Hemphill’s Heirs.

      Ejectment.

    Deed from collector of taxes not available to transfer title, without proof that the land was listed, taxed, and advertised, and that the pekon making the sale was legally authorized to sell.
    After the survey of an entry is recorded, the claimant can not destroy the tax lien of the state.
    Mere intruders not allowed to question the validity of a patent under which plaintiff claims in ejectment.
    A descent cast upon parties in possession does not, in Ohio, bar action of ejectment.
    Title may he created without an actual entry; delivery of deed considered as giving possession.
    This cause was adjourned for decision here by the Supreme Court of Ross county. It was elaborately argued by Leonard, for the plaintiff, and Scott'and Sills, for the defendants. The case being fully stated, and the arguments of counsel and authorities cited noticed in the opinion of the court, it is conceived unnecessary to swell the report with anything more than that opinion.
   Opinion of the court, by

Judge Burnet:

The plaintiff claims under a patent regularly granted by the United States, which covers the land in dispute. He must therefore recover, unless the defendants can show a ^better title in themselves, or that the plaintiff’s right is barred by some other cause.

The facts oí this case are concisely these: In August, 1787, Thomas Boyer entered the land in controversy. In August, 1789, he withdrew two hundred acres of it. In November, 1793, the residue of his entry was surveyed: the word error, being written on the margin of *the record of the survey. On March 17, 1807, the whole of the residue of the entry was withdrawn, and the land virtually abandoned by Boyer. In April, 1805, Hemp-hill obtained a collector’s deed for the land, as having been sold for taxes, on which he entered; died in possession, in 1821, and was succeeded by the defendants, his heirs at law. On March 17, 1807, Holt’s entry was made, Hemphill being then in possession. This entry was soon after surveyed, and patented in 1809. Neither Holt nor his heirs, have at any time been actually seized of the premises, or any part of them. It also appears that Holt’s warrant had been entered and surveyed on other lands, and then withdrawn, before it was entered on the land in question.

The defendants contend:

First. That the legal title has passed to them by the collector’s deed.

Second. That after an entry has been surveyed, and recorded, the warrant is merged, so that the entry can not he withdrawn, or the warrant located on other land. From which they infer that Boyer’s location remains valid, and that Holt’s entry, survey, and patent, are void.

Third. That by the death of Hemphill in possession, a descent has been cast, which tabes from the lessors of the plaintiff their right of entry, and puts them to their real action.

First. It is very certain that the defense can not be supported on the first ground, as nothing has been shown to sustain the deed. It does not appear that the land was even listed, or that any tax was due and unpaid, or that it was advertised for sale, or that the person who signed the deed was authorized to collect the tax, and to sell the land in case of non-payment. Those facts are all necessary to support the deed; without them it can not be known that the land was liable to be sold; that the person who executed the deed had power to do so, or that the laws relating to' the *sale have been substantially followed by the agents concerned.

In deciding on tax titles, great strictness has always been observed and less latitude given than in proceedings on judgment and execution. A collector who sells land for taxes must act in conformity with the law from which he derives his power; and the purchaser is bound to inquire whether he has done so or not. He buys at his peril, and can not sustain his title without showing the authority of the collector, and the regularity of the proceedings. In these cases, the maxim caveat emptor applies.

This doctrine is maintained in Stead’s Executors v. Course, 4 Cran. 412. It will also be found in 4 Bac. G41, where it is said that a title derived from a statute must pursue the statute strictly. For these reasons the collector’s deed can not be admitted as evidence of title.

Second. On the second ground, the defendants rely on the acts of Congress of March 2, 1807, and May 13, 1800, and on the land laws of Virginia, and the cases that have been decided under those laws. This branch of the case has been argued with great zeal and ingenuity by both sides, and has received from the court all the attention it seems to merit, in the estimation of the counsel.

The act of March 2, 1807, was intended to quiet titles,.and prevent litigation in the Virginia military district. It does not seem to regard, or affect any pre-existing right of withdrawal. It guards the survey claimed by a locator against a subsequent entry by another locator. Any right of withdrawal that might have existed, prior to the passing of that act, is not taken away by it. It was not intended to restrain persons from abandoning their land, whether surveyed or not, but to protect them after survey, from disturbance by third persons who might attempt to locate the same land. In short, the great object of the proviso was to save defective locations, after patent, or survey, and in that point of view it may be regarded as one of the most salutary provisions contained in the statutes relating to these lands.

The act of May 13,1800, does not appear to affect the case. The second section, which has been referred to, contains no prohibition. It merely gives the right of relocating *a warrant, after eviction, which could not be done by the laws then in force in cases where the eviction happened, aftor the location had been carried into grant.

Without settling in what cases a warrant might be withdrawn and relocated by previous laws, it declares, in general terms, that after eviction it may be relocated in every case; that is, as I understand it, whether the claim which has been lost stood on entry, survey, or patent.

It is contended that as this act gives the right of withdrawing and relocating after an eviction, and in no other case, it must be evident that Congress did not intend to give the right, and therefore have excluded it in the ease before us, because no eviction has taken place. But this mode of reasoning will carry us further than counsel are willing to go; for if a fair interpretation of the act excludes a surveyed entry where there has been no eviction, it must exclude a naked entry under the same circumstances, for it makes no distinction.

The statute of Virginia of May, 1779, referred to in the argument, is not very explicit. The prohibition which it is said to contain is rather inferable than direct. Warrants are declared to be good and valid till executed by survey, after which, it is contended, they merge, and become functus officio. This construction seems reasonable, and has been given by the courts of Kentucky, as appears from the case of Withers v. Tyler, 4 Marsh. 173, where it was decided that a survey made and recorded by proper authority, was an extinguishment of the warrant. The same principle was held in Taylor v. Anderson, 3 Marsh. 501. The case of Taylor’s Lessee v. Myers, 7 Wheat. 23, so much relied on by plaintiff’s counsel, does not seem to clash with the 'case of Withers v. Tyler. The principle settled by the Supreme Court in that case is, that a locator can not be compelled to consummate a title once begun; he may forfeit it, or abandon it, provided he does not thereby affect the rights of others. The question, whether a warrant had been entered and surveyed could, after a withdrawal, be entered and surveyed elsewhere, was not presented.

The case settles the right of Boyer to relinquish his location, as far as his own interest was concerned; but it does not decide the point whether Holt’s second location, on the *land in question, was valid or not. But whatever may be the construction of the statutes referred to as to the parties themselves, I do not hesitate to say that after the survey of an entry has been recorded, it is not in the power of the claimant to destroy the tax lien of the state, or to avoid the effect of a sale, regularly made by the collector, for the non-payment of taxes.

It may, with some plausibility be said, that as the warrants were withdrawn, and the lands first located, restored to the cornmon mass of vacant territory, no injury has been done to government, and but little, if any, to the holders of unlocated warrants.

The course pursued by these parties will not eventually give them more land than they áre legally entitled to; so that the principal objection, apart from that which the land laws are supposed to present, is as to the right of a second choice, or the exchange of land once selected for other land of a better quality. Should this be permitted, it would not operate fraudulently on the government, nor could it strictly be said to be a fraud on other warrant holders, as would be the fact if they were now claiming their first locations, and thus attempting to secure more land than their warrants called for. Under such circumstances I should consider the second entries as unauthorized by the land laws of Virginia, and a direct fraud on the government and the holders of unsatisfied warrants. But it is admitted by the agreed case that both parties have abandoned their first locations, so that the main objection depends on a question stricti juris — a technical construction of the statute law on the subject. It is the opinion of the court, however, that the rights of these parties maybe ascertained and settled, as far as they are necessarily involved in this controversy, on grounds which do not impose the necessity of giving an interpretation to the land laws as to the validity of a new entry, after the withdrawal or abandonment of a prior surveyed entry on the same warrant.

If the heirs of Boyer were contesting the validity of the withdrawal of these warrants, or if the defendants had connected themselves with Boyer’s title, either by purchase from him or under the tax laws of the state, the case would wear a different aspect, but as it now stands they must be ^considered as intruders. They can .not be allowed to question the validity of the plaintiff’s patent, and this furnishes all the answer that is necessary to so much of the argument as relates to the illegality of the withdrawal, and the necessity of proving that if legal, it was made on sufficient authority.

Third. In considering the third and last ground taken by the defendant, it will be proper to bear in mind, that Hemphill entered in 18.05, on a claim of title under a collector’s deed; that Holt’s location was not made till 1807; that he never had an actual seizin of any part of the premises, but that they have been constantly held by an adverse seizin, under claim of title. On these facts, the question is made, whether by the descent cast on the heirs of Hemphill, at his death, the entry of Holt’s heirs is tolled.

It is a well-known principle of the common law that if a person seized of the inheritance of a corporeal hereditament dies, by which it descends to his heir, the right of entry is tolled by the descent, which is cast on the heir, and the claimant, for his neglect to enter on the ancestor, who knew his title better than the heir who came to the estate, by act of law, is put to the remedy of an action against the heir. It is laid down by Blackstone as a general rule, that no man can recover possession, by mere entry on lands which another hath by descent. But to this rule there are exceptions; as whore the claimant has been under some disability, as infancy, coverture, and the like, or where the tolling of the entry would leave the claimant without any remedy whatever, which I apprehend would be the fact, in the case before us. By the rules of pleading in real actions, the demandant must allege in his count, that he or his ancestors were seized, and took the esplees, or products of the land. The facts of the ease show that neither Holt nor his heirs could support these material averments of the count in a real action. They could not, therefore, sustain such an action. The patent connected with the facts of the agreed case, gives them only a title of entry, and having but a title to enter, and no remedy by action real, the descent does not toll the entry, for if it did, the law would bar their right, by leaving them without any remedy. Co. Lit. 240, a, n. It has been alleged by one of the counsel for the defendants, that the case of Green v. Liter, 3 Cran. 244, establishes a different ^doctrine; but it does not appear so to me. The court say, in that case, that an actual seizin, or seizin in deed, is necessary to maintain a writ of right; but that such a seizin may, in some cases, be proved without showing an actual entry under title, and perception of the esplees. This is perfectly consistent with the course of decision which has prevailed in this court.' We have always held that a complete title may be created without an actual entry, and where the grantee may never have been within hundreds of miles of the property granted. The delivery of the deed has been considered as giving possession in contemplation of law, and the grantee is presumed to have entered, unless that presumption is rebutted by facts, wholly inconsistent with it, as when the premises, at the time of the grant, are in the actual seizin of a third person claiming title adverse to the grantor. In such a case, it would be a contradiction in terms, to say that the grantee has a constructive seizin in deed; nor do I discover anything in the case of Green v. Liter, from which it can be inferred that a constructive seizin is to bo presumed under such circumstances. The most that can be said, is, that the grantee has a title to enter, on which he may maintain an ejectment. It seems unreasonable to say that he has such a seizin in deed as is required to support a real action.

The principal points decided by Judge Story are, that there maybe a constructive seizin in deed, without an actual entry, and that when such a seizin has been proved, the perception of the esplees follows, as a necessary inference of law. But I do not discover, from any of the cases put by the learned judge, by way oi illustration that such a seizin in deed, as he speaks of, can be presumed, where the grantee has never entered on any part of the premises, and where the whole tract granted, is in the actual possession of an adverse claimant, holding under a claim of title. These being the facts of the case we are now deciding, I conclude that it is not affected by the case of Green v. Liter, as has been supposed. The doctrine there laid down is safe and salutary; and the reasons assigned, in support of it, are peculiarly applicable to this state, on account of the large quantity of waste and unsettled land which it contains, and the multitude of sales that are made of such Hand. On these occasions, it would be a burdensome and useless toil, to require the parties to repair to the premises, which may cost them a journey of several days into a wilderness, either for the actual performance of a ceremony, long since obsolete, or to lay the foundation of a legal presumption that it has been performed. And that I may not be misunderstood on this important point, I repeat that I do not consider a formal livery of seizin, as practiced in former times, or an actual corporeal entry, as being at all necessary to consummate a title, or to vest a seizin in deed, in any case, where the premises are vacant, or occupied by a person holding under the grants., or otherwise without claim of title. In all such cases, the execution and delivery of the deed vests the seizin, completes the title, and puts the grantee in the same situation, as if he had made a formal entry, and received the twig and turf from the hand of the grantor. But in this case, if Holt, or his heirs, had been actually, as well as legally seized, and had taken the esplees of the land, which would entitle them to their real action; and if a descent had been cast under those circumstances, although at common law, it might toll their entry, and bar an ejectment, yet, I apprehend, it would not have that effect in this state.

I do not now recollect any adjudication in the courts of Ohio, in which it has been decided, in what description of cases, lands and tenements may be recovered by the action of ejectment; but from the practice which has prevailed since the passing of the limitation act of 1804, it would seem that the action of ejectment has been considered as a proper remedy for the recovery of real property, under all circumstances. Although neither that act, nor those which have since been passed, can be considered as prohibiting real actions; yet there is reason to conclude, and such appears to have been the prevailing opinion, that by a fair interpretation of those acts, the writ of ejectment may be used in all cases in which the writ of right can be sustained at common law.

I shall not, at this time, attempt an analysis of those statutes to ascertain their construction, but will pnly suggest, that they mention no form of action for the recovery of real estate, but the ejectment; that they give but one period of limitation to such actions, and that the ejectment is so connected with the substance of the provision, as to apply ^equally to the recovery of possession, title, or claim to land. The inference is, that by our present practice an ejectment may be resorted to for all the purposes of a real action, and may be sustained either on aright of entry, or a title to enter, and that the casting of a descent, would be no bar in this case, should it be admitted that the facts in evidence do not take it out of the rule by which an entry is tolled.

It may be proper, further to observe, that the patent is an appropriation of the land, and vests a legal title, and that the defendants having failed to support the collector’s deed, can not, in this form of action, avail themselves of any equity that may be supposed to exist in their favor. Cases may be found in which patents have been impeached at law, for causes existing before they were issued ; but this is not one of that character, nor does it come within the class of cases in which patents have been held void at law, for having issued without authority, or against the provisions oí a statute.

The defendants’ counsel, aware that their defense would be subject to this objection, have cited several authorities to show that their case may be considered as an exception; but the authorities do not sustain them. It is a plain case of an attempt to evade a legal title, by an alleged equity.