author: Judge Hitchcock

text:
    Lessee of John H. Winder and Sally Winder v. Lyne Sterling.
    'Collector or treasurer’s return of delinquent lands is sufficient, if verified by affidavit in the form prescribed by the statute.
    When no paper is published in a county, it is sufficient to publish notice of a sale of lands delinquent of taxes, in’ a paper published in an adjoining county.
    If the advertisement of a sale of lands for taxes is inserted in the auditor’s records, the place of insertion is not absolutely material.
    :Sale of lands for taxes not affected by subsequent overcharge of tax.
    This action of ejectment is brought to recover three hundred acres of land in the county of Hardin, being entry No. 12,296, in the Virginia military district.
    The case is submitted to the court, upon an agreed state of facts, substantially as follows: Sally Winder, one of the lessors of the plaintiff, has a patent for the land in controversy, bearing date in 1826. John H. Winder and Sally Winder are *husband and wife, and the title to the premises is in the said Sally Winder, •unless the same has been legally transferred.
    The defendant claims title in virtue of a deed from the county auditor of Logan county, the lands having been forfeited to the ■state for the non-payment of the taxes for the years 1826 and 1827, and sold in pursuance of the act of March 14, 1831, providing for the sale of such lands.
    It is agreed that the lands were in every particular regularly forfeited to the State of Ohio, except that the plaintiff objects:
    1. That it does not appear of record that the collector in 1826, ■and the county treasurer in 1827, were sworn by the auditor to the correctness of the delinquencies returned by them for these •years respectively.
    2. That there is not a sufficient record of the advertisement of the delinquent list previous to the sale of delinquent lands in 1827.
    The parties respectively reserve the right to take exception to any acts which took place relative to the premises, subsequent to January 1, 1828.
    Staunton, for the plaintiff,
    relied upon the following facts:
    1. That there is no evidence that the county collector in 1826, •or the treasurer in 1827, were ever sworn to the delinquencies by them returned for those years in which the demanded premises were included.
    2. That there is no evidence that the Mad River Courant, in which the aforesaid delinquent list was published in 1827, was a newspaper of general circulation, either in the county of Hardin or Logan, and that it was not published in either of those counties.
    3. That there is no note at the foot of the record of the advertisement aforesaid of the name of the paper in which the advertisement was published.
    4. That the taxes subsequent to the forfeiture in 1827 are overcharged.
    5. That the premises were entered on the duplicate for taxation and charged with taxes in the years 1824 and 1825, before they were patented.
    He cited the following authorities as applicable to his view of the case: 4 Bac. 641; 4 Co. 74; Cro. Eliz. 584; 4 Cranch, 412; 11 Mass. 165; 14 Mass. 28; 2 *Mass. 154; 1 Mass. 87; 11 Mass. 468; 8 Mass. 284; 3 Ohio, 234; 5 Ohio, 370, 458; 6 Ohio, 399; Wright, 766.
    Sterling and Gilbert, for defendant.
   Judge Hitchcock

delivered the opinion of the court:

From an examination of the facts agreed, it will be perceived that the duties of the court, so far as this case is concerned, are confined within very narrow limits. It is admitted that these lands were properly forfeited to the state for non-payment of taxes, unless the record of the county auditor is defective in not showing that the proper officers were sworn to the correctness of the delinquencies returned by them on the tax duplicates of 1826 and 1827. And in not showing that the Mad River Courant, a-, paper published at Urbana, in the county of Champaign, in which the delinquent lists for the counties of Logan and Hardin were published in 1827, was a newspaper in general circulation in the-counties of Logan and Hardin. At the time these lands were' taxed, returned delinquent, and offered for sale, the county of Hardin was not organized, but attached to the county of Logan for judicial and other purposes.

We will inquire, in the first place, whether it sufficiently appears of record that the collector in 1826, and the treasurer in-1827, were sworn to the correctness of the delinquencies returned by them. It may aid us in arriving at a correct conclusion upon this question, to ascertain the leading object of the legislature in-requiring this oath. The first section of the act of February 1, 1825, to amend the act defining the duties of county auditor, Chase’s Stat. 1493, provides “that the county auditor, on receiving-from the collector of taxes the receipt of the county treasurer for moneys paid by such collector into the county treasury, shall charge the treasurer with the amount thereof.” The object of this section is, that the auditor may have a check upon the treasurer in the expenditure of the public funds, and have the-means of calling that officer to an account or settlement.

Section 2 provides for a settlement to be made between the-county auditor and county collector for the amount of taxes-charged on the collector’s duplicate for the current year. In making such settlement, the county auditor is authorized to take-from such *duplicate a list of such taxes as the collector has not been able to collect, describing the taxes delinquent as they are described on such duplicate; and is further required to note-thereon the reason assigned by the collector why such tax could not be collected. This is what is denominated the delinquent list. It is to be signed by the collector, and he is required to testify to-its correctness under oath or affirmation, to be administered by the auditor. For the amount of taxes in this delinquent list, the-collector is entitled to credit; and hence the propriety of its being verified by oath. After deducting from the duplicate the-amount of delinquent taxes, and the amount of fees for collection, the auditor is required to certify on the same delinquent list the-balance due to the state, the balance due to the county, the balance due for road purposes, and the balance due to townships in-the county. It is macle the duty of the collector to pay these several balances by the 15th day of January next thereafter. It is also made the duty of the auditor to record the collector’s return, and then deliver the same to the collector, to be by him delivered over to the auditor of state. From a consideration of all these provisions, it is manifest that the leading object of the;.oath was to satisfy the auditor of the correctness of the return as laying a foundation for a settlement by the collectors with the several treasuries for which the moneys had been by him collected. Still, although this was the leading object, it was necessary that all these requisitions should be substantially complied with before the land could be forfeited to the state.

To prevent mistake in the collection of the public revenue, the legislature, at the same session in which the act above relerred to was enacted, have, in section 39 of the act establishing an equitable mode of levying taxes, prescribed the forms to be used- by the several officers concerned in this collection. Chase’s Stat. 1486. Among others, the form of the delinquent list, of the collector’s oath, and of the county auditor’s certificate upon the list, are prescribed. The form of the oath is as follows: “I, C. D., collector of taxes as aforesaid, do solemnly swear that the foregoing list of delinquencies are, to the best of my knowledge and.belief, truly stated, and that the reasons for returning such taxes delinquent as noted thereon do, as I verily believe, exist.” An extract from the records in the auditor’s office of Logan county, introduced in evidence, shows that these forms have been ^literally pursued. Although there is no explicit statement by the auditor that he administered the oath to the treasurer or collector, yet there is all the evidence of this fact, and the only evidence which the legislature have thought proper to require by the statute or in the forms prescribed. Whether these forms are the best that could be devised, it is unnecessary to inquire. They are prescribed, and so long as the revenue officers pursue them, nothing more can be required at their hands. In fact, an examination of the evidence adduced, can leave no doubt upon the mind but that the collector in 1826, and the treasurer in 1827, were sworn to the correctness of the delinquent list for those years.

It will be recollected that, by an act passed January 24, 1827, Chase’s Stat. 1543, the office of county collector was abolished, and the duties of that office transferred to the county treasurer. Hence the delinquent list of 1827 was verified by the oath of this latter officer.

Another objection to the forfeiture is, that the auditor’s record does not furnish evidence that the Mad River Oourant, in which the aforesaid delinquent list was published, in 1827, was a newspaper in.general circulation, either in the county of Logan or Hardin, and that it was not published in either of said counties.

This record shows that the paper in which the advertisement was inserted, was published at Urbana in the county of Champaign, a county adjoinining that of Logan.' It is made the duty of the auditor to have the publication made in a paper printed in the county, or in one in general circulation in the county where the land to be sold is situated. From the circumstance that publication was made in a paper printed in an adjoining county, it is reasonable to infer that none was printed in Logan county. In such case it is probable that a paper printed in an adjoining county would have more general circulation than any other. And in every case where there was no paper printed in the county where the land to be sold was situated, I apprehend it would be .proper for the auditor to advertise in one published in the adjoining county, without stopping to inquire how general the circulation of that paper might be in the county where the .land was sit-mated. In this matter the law is directory to the auditor, and when he has exorcised his discretion, we are disposed to believe, in the ^absence of all proof to the contrary, that he has done his duty.

It is next objected that there' is no note at the foot of the advertisement of the name of the paper in which the advertisement -was published.

The law requires that the advertisement should be inserted in the auditor’s book of records. This was done. But the' law further required that the auditor should certify at the foot of each record the name of the paper wherein the same was published. Chase’s -Slat. 1493. The name of the paper in which the advertisement wag published, is noticed upon the record, but it is not done exactly at the foot of the record of the advertisement itself. It seems to me that this objection is too trifling to defeat even a tax title. If, in the course of business, the auditor, after recording the advertisement, should find it necessary to enter other matters in the record, before noting the name of the paper, or even if the name of the paper should be inserted befoi’e the advertisement itself, the object of the law would be answered, the only object in view being to have it appear of record in what paper the advertisement is published. In the opinion of a majority of the court, the exceptions to the forfeiture in this case are not well taken.

It is not contended for the plaintiff but what the sale of this land was regularly made in 1831, provided the same had been correctly forfeited; but it is insisted that no title passed, because the taxes subsequent to the forfeiture were overcharged, and because the lands were entered on the duplicate for taxation and charged with taxes for the years 1824 and 1825 before the patent issued.

Whether the taxes were overcharged subsequent to 1827 does not clearly appear from the evidence. But even if it were so, we apprehend it could make no difference with the defendant’s title. In consequence of the non-payment of the taxes of 1826-27, the land was forfeited, and thereby the title was vested in the state, to be disposed of as the wisdom of the legislature should afterward prescribe. A subsequent overcharge of taxes could not avoid this forfeiture or affect the title of a subsequent purchaser from the state.

By the act of February 18, 1804, levying a tax on land, Chase’s Stat. 414, lands in the Virginia military district were subjected to taxation as soon as entered. How it was previous to that time, I will not undertake to say, not having *examined with a view to ascertain. But sinco that time, I am not aware of any law exempting such lands from taxation. This land was entered in 1823, surveyed in 1824, and patented in 1826. In 1824, it was subjected to taxation. By the act to provide for the sale of forfeited lands, Chase’s Stat. 1817, it is made the duty of the auditor of state to transmit to each county auditor a list of forfeited lands lying within such county, specifying the amount of tax due thereon for each year, including the year 1836, and for what years- Such list in 1831 was sent to the county auditor of Logan county, and the land now in controversy was charged with the tax of 1824 and 1825, as well as for the years subsequent to 1827. It was right under the law that it should be so, unless the taxes for those years had been paid, of which there is no pretense.

Upon the whole, the court are of opinion that under the agreed " state of facts, in connection with the evidence adduced, the defendant is entitled to judgment. We feel the less regret in coming to this conclusion in the present case, as it is possible that the law may have made ample provision for femes covert to redeem, their lands, when sold for taxes, even after a forfeiture.


source: Caselaw Access Project

author: Judge Wood

license: Public Domain

text:
    John M. Fuller v. Simon Perkins and Wm. Robson.
    Where a purchaser of real estate misrepresents his means of payment, when making the contract, and is finally guilty of gross negligence m performing on his part, equity should not aid him by decreeing a specific performance.
    This was a bill in chancery by a vendee of lots in the town of Akron, asking a decree for a specific performance against the vendor. It was reserved for decision here in the county of Portage.
    G-. Powers, for complainant.
    C. Pease, for defendant.
   Judge Wood

stated the case, and delivered the opinion of the court

The bill, m this case, was filed February 1,1834, and states that the complainant and said Robson, on January 18, 1827, purchased of Perkins lots 174 and 175 in Akron, and took a certain contract which is set out in the bill.

*By this contract Fuller and Robson agreed to purchase the lots at three hundred dollars, and made, at the execution thereof, a payment of two hundred dollars, in a note against one Beecher and Sloa-ne, and one hundred dollars by the 1st of July next, thereafter, with interest thereon; and for this last note they executed their joint and several note. They also agreed to erect on one of the lots a brick or stone house suitable for a tavern, to pay all taxes, and prosecute the building of the house, as their means would permit; and when the walls of the house were up, the roof on, and the one hundred dollars paid, Perkins was to give a deed. The bill further states that the defendant, Perkins, has collected the two hundred dollars for his use; that in consequence of losses and failures of contractors, and Robson’s pecuniary inability, he could not commence building the house until June 10, 1832, when he commenced preparing the foundation and procuring materials, and from thence till May 10, 1833, continued to prosecute the building, as his and Robson’s means would permit, and would have finished the house, but was forbidden by the defendant, Perkins, on the aforesaid May 10, 1833. The bill states that the complainant has paid the one hundred dollars and has tendered the amount of all taxes, since the contract was executed, to said Perkins. That Robson, on September 26, 1833, sold all his interest in the land to the complainant. That Perkins, on May 10, 1833, commenced an action oi ejectment against the complainant to recover the possession of the said lots. That the complainant has demanded a deed of Perkins; and that he should discontinue the ejectment — both of which the defendant, Perkins, refused. The bill prays for a specific execution of the contract or a compensation in damages, and that the action of ejectment may be enjoined.

The answer of Perkins admits the contract denies the collection of the two hundred dollars for his use, but states, before the money was collected, Robson was the sole owner of the note, and directed Wells, the agent of Perkins, and who made the con- • tract for the sale of the lots, to collect the money and forward it to him in Pennsylvania; and that by letter of January 22, 1830, which directed the avails of the note to be remitted to him, Robson expressly abandoned the contract; and a copy of this letter containing such instructions and abandonment is contained in and made part of the answer.

*The defendant denies that anything of consequence toward building a house in pursuance of his contract has been done by the complainant. The defendant admits he has commenced an action of ejectment as stated by complainant, and alleges that he has received but forty dollars on the one hundred. He admits that the complainant paid to his clerk seventy-seven dollars sixty cents, which the clerk had no authority to receive, but was induced to do so by the fraudulent representations of the complainant, and which payment, was after the contract had been forfeited by both the complainant and Robson. The answer also admits the tender of the amount of taxes of fourteen dollars forty-four cents, and avers that the defendant directed his agent,Wells, to refund the forty dollars and the seventy-seven dollars sixty cents, which he has offered to do, and is still ready to refund. The defendant denies all knowledge of' any assignment by Robson to complainant of the contract, but insists, if made, it was fraudulent and alter the contract was abandoned. The defendant states that the advancement of the town of Akron was the principal inducement to make the contract with the complainant, and the erection of a building for a tavern the most important consideration for the sale of the lots.

The answer insists that the complainant has been guilty of gross neglect, which, by his letter of January 14, 1828, he acknowledges, and that the excuses set forth in his bill for not performing his contract are frivolous and merely pretenses, and denies all fraud.

' The complainant has filed a replication, and submitted to us the depositions of Carter, Mills, Jarvey, Yiers, Babcock, Ayres, Sprague, and Hand. There is, however, but little in these depositions to aid him. They generally relate to his pecuniary inability to pay for the lot when his note became due, or to make any progress in the erection of the building. One witness, however, Yiers, states that in 1827 he contracted with Fuller to make brick, and received a mare in payment; that Fuller went off to Pennsylvania and he heard no more of him until he was sued for the mare.

So far as I have been able to dissect the evidence in this case, it seems to be entirely with the defendant. Wells, who was the agent and made the contract, testifies that Puller, the complainant, represented that he had a brother in New York able and willing to assist him, and who had in his hands ^seventeen or eighteen hundred dollars of his property, and that Robson was reported to be worth three or four thousand dollars, and that a belief in their means and ability to make the payments and build the house was the principal motive to make the contract. It is very evident that Wells was deceived, and that the complainant and Robson could, at the time, have entertained no well-grounded hopes of meeting their engagements. Wells testifies that Robson, soon after the contract was executed, went to Pennsylvania, and the complainant followed him in the fall of 1827, without any preparation to build, otherwise than a contract with Viers for brick, and the balance of the one hundred dollar note was due in July before complainant left. Fuller returned in the winter of 1830, but Robson has remained absent. Wells says, in the early part of 1828, he notified Fuller and Robson that if they did not perform their contract it would be considered forfeited. In 1830 Fuller returned, and shortly after the witness received a letter from Robson, abandoning the contract, and directing the amount of the note against Beecher and Sloane to be sent to him, to which Perkins assented. Fuller did nothing toward building until 1833, when ho commenced preparing for the foundation, when witness forbade him, and has frequently informed him the defendant considered the contract as abandoned and forfeited on the part of him and Robson, and that no more payments would be received. In the spring of 1832 Fuller offered to pay up the one hundred dollar note, which the witness refused, and referred him to the defendant, and gave him a memorandum of the amount, etc., and witness offered to refund to Fuller what he had paid, with interest, which he refused. In 1831 this witness states property began to rise in Akron. Fred. Rusman testifies he was a clerk for Gen. Perkins, and Fuller came there in the absence of Perkins and with the memorandum from Wells, and induced him to take the money duo on the one hundred dollars, but Perkins would not sanction the act.

This, then, is substantially the case, and it is submitted for our consideration whether this contract shall be specifically executed, and it seems to me there are two grounds, either of which is sufficient to prevent the chancellor from an interference to compel its specific execution.

1. The evidence most clearly proves a gross misrepresentation of their means and ability to perform their contract, and *by which they preyed upon the credulity of the agent, and induced him to enter into it. These representations, were such that the agent had the right to rely on them. He could not ascertain their truth or falsity but by the most diligent inquiry in New York, where their means was said to be. This would occasion delay and inconvenience, and the law permits a man to rely on statements made by another under such circumstances. The representations made by Fuller, the complainant, were grossly fallacious, and even a fraud and imposition on the agent, and the principal, Perkins, should not be bound by the contract, founded and executed upon them. 1 Mad. Ch. 204, 208, 209, 329-331.

2. The complainant has been guilty of gross negligence on his part, and to him equity will not lend its aid. Robson left Ohio soon after the contract was executed, and afterward expressly abandoned it, having made no payment nor performed any part of his agreement from that day to this. Fuller, the complainant, followed him out of the state in the fall of 1827, forty dollars only having been paid on the contract, and nothing is heard from him excepting by letter, in which he speaks of his embarrassments and inability to perform for two years, until he returns in 1830. He then does nothing toward building until 1833, when the land had risen in value, and he prepares for the foundation of the house. This is five years after the contract was entered into, nearly that after the payments became due, and this same work should have been commenced. A party, to entitle himself to a specific execution of a contract, must show himself eager, prompt, and ready to comply on his part.

The law is not made for the sleeping, but for the vigilant and watchful. Decree for complainant for forty dollars, seventy-six dollars and sixty cents, but without costs, and the specific execution of the'contract denied. As to Robson, bill dismissed without costs.


author: Judge Lane

text:
    Heirs of Smith v. Caleb Stark and others.
    When, under a law of Congress, the patent issues for lanas to revolutionary soldiers directly to the person who performed the service, or his heirs, no equitable claim can be sustained to the ownership of such lands, by a purchaser, without proof of sale, made in person or by any one authorized to sell.
    This was a bill in chancery, adjourned from the county of Tuscarawas. The complainant alleged ’that in the year 1800 he purchased from a broker in Philadelphia,for account of *himself and a partner, the warrant upon which the land in controversy was located. This warrant was originally issued to Gen. John Stark, in part compensation for his revolutionary services, and the law providing for its appropriation forbade its being assigned, so as that a patent could issue to any other person than such as the warrant was issued to or his heirs. The bill alleged that the warrant was purchased of Franklin Stark, who was authorized to sell it.. That the complainant, esteeming him the owner, procured its location, obtained the patent, and took possession of the land it covered. That he had held the possession and made improvements until ejected in 1834. That he had paid all the taxes, and that the grantee of the warrant had, by neglecting it, virtually abandoned his claim under it, and recognized the lawful ownership of the complainant.
    The answers deny that General Stark had ever authorized F. Stark to sell, or had sold his warrants, and deny the authority of the brokers to sell them, insisting upon their right and upon the policy of the law that protected their interests against unadvised assignments.
    The testimony was voluminous, but none was adduced showing a transfer of his right by General Stark, or an authority to any one to make sale of his warrants.
    S. W. Culbertson, for complainant, maintained
    1. The soldier performed a service for the government of the United States, for which he could support no action, but in equity was entitled to a compensation.
    2. That the government of the United States, sensible of his rights, by its acts of 1796, etc., made provisions for him, by granting him a warrant for land. In doing this, the government paid him, only what, in equity, it owed him, and what it had induced him to expect.
    3. That when the government granted him the warrant, it invested him with a right of which it could not, by any subsequent act, divest him but by his consent; he had paid for the warrant, and received it as legal evidence of his claim for the quantity of land specified in the warrant.
    4. Having received the warrant, it became the absolute property of the soldier, as much as if the government had paid him by a check on the United States treasury; of that ^warrant he had as much right to dispose as if it had been a check.

      5. Warrants issued to J. and A. Stark for the lands in the bilí, and when the warrant of Archibald was issued, he was dead; ho died without heir of his body and intestate, leaving a father and brothers'; the father was his heir, as per answer. These warrants were delivered to General Stark, who gave them to his son Benjamin Franklin Stark, who sold them to complainant, by his agent, Thom, for three hundred dollars, received the cash, which was the then selling price as per Thom’s deposition, John Stark and Mrs. B. F. Stark’s depositions. By this act John Stark and his son B. F. Stark, divested themselves of all equity to this land, and their equity by the sale and receipt of the money vested in the complainant, the purchaser.
    6. These warrants were considered but as choses in action, and passed as bank notes, with or without indorsement, and whether indorsed or not, in this case, the equity is the same, as there is proof of payment.
    7. The warrants came to the hands of complainant by purchase, in 1800, and August 6, 1801, patents issued as in the bill set forth, and inured to complainant’s possession, who purchased the right of Johnson, his partner, as per Johnson’s deposition, and procured his quitclaim deed.
    That complainant has been in possession ever since; paid the taxes and made improvements, which are a substantial benefit to the owner of the land.
    From the facts as made out by complainant, it would appear that his equity is complete, unless the testimony of respondent shows a better equity, or that the law of Congress bars the complainant’s right.
    1. Respondents deny the sale or delivery of the warrants by General Stark to his son Franklin, and Franklin’s sale to complainant, but the proof is complete against them.
    2. He alleges that from the close of the revolution General Stark did no business.
    General Stark died in May, 1822, and eight or ten years before his death, say in 1812 or 1814, as Caleb Stark alleges, he was appointed his guardian, owing to his alienation of mind; and yet he says that in 1817 Smith called upon him to say that he had purchased those warrants, and he, Caleb, offered to go with him to his father to procure the necessary information. This allegation of Calob Stark, and the testimony of A. Gamble and Rawell, go to prove that General Stark was capable of doing business when he gave these warrants to his son Franklin, who sold them, to complainant in 1800.
    3. Caleb Stark denies knowledge of the sale of these warrants, and yet admits that in 1817 Smith told him of it, and this was long previous to his purchase. His whole answer is false and contradictory in itself; he purchased with full notice. See John Stark’s deposition.
    4. Caleb Stark never looked after these lands till 1824. See his letters to Lovemore; and yet he says that at one time his father asked him how he was coming on about recovering his army lands.
    5. If the act of Congress of March, 1800, had never been passed, there could be no difficulty as to the decree that ought to made.
    6. It remains for complainant to surmount this difficulty, and he attempts it in this way: First, that the warrant vested an absolute right in the warrantee, which Congress could not after take from him; that he had paid a fair consideration for it; that he had a right to dispose of it as he pleased, and having sold and received a bona fide consideration for it, his equity becomes vested in the vendee; that the warrant, like a bond, was conclusive evidence of the holder’s right, unless fraud or satisfaction was proven, . none of which is attempted.
    That Congress, being omnipotent in such cases, could have refused to issue their patent to an assignee, between them and whom there was no privity of contract, is admitted; but having, in compliance with their contract with the soldier, issued their patent to him, they could then have no further control over the patent or the patentee. The patentee then became the trustee of the vendee, and held the land for him, and it now becomes the province of equity to make him do equity. The complainant, in 1800, paid to the warrant holder and owner three hundred dollars, and the taxes ever since till very lately. John Stark in his lifetime, from 1800, when the warrant issued, till his death in 1822, never looked after this land; and why? Because he was an honest man, and knew he had sold it, and the purchaser had paid for it. Why did Caleb, the guardian, so long sleep upon the rights of his father ? And why did he sleep upon the rights of the heirs afterward' till 1824, when he discovered the value of the land and the prospect *of a legal recovery? He was told by his brother John, who inherited a part of his father’s integrity, that his father had no right to this land, and the reason why he had not. It remained for Caleb to sully the name of Stark.
    But another difficulty may possibly be made. There was first a tract of country set apart by Congress to satisfy the soldier in a certain way and manner; and after the majority of soldiers’ warrants were supposed to be classed and located, fifty quarter townships were selected from the military district to be divided up into one hundred acre lots, and patents were to issue exclusively to the soldier for these lots, notwithstanding any previous sale of the warrant by the soldier — a law apparently well calculated to make the poor soldier a rogue, and the present case is a strong evidence of it. How can this law constitutionally interfere with the rights of the parties ? The warrants were the property of the soldiers; they sold them and received the payment. Will equity let them have both the money and the land? Surely not both. But this is not a controversy between General Stark and his vendee, but one between two claiming vendees. General Stark divested himself of his right in giving his warrants to his son; this son sold his right to the complainant, and now Caleb Stark claims by purchase from the heirs of General Stark. Is the equity of General Stark and the equity of his children the same? ' It is thought that the act of Congress had an eye solely to the soldier, to the laborer, and not to those who came after him; their rights were to be determined, as the rights of other citizens, except where the patent issued to the heir, which would not be done but by the production of the warrant, or on proper proof that it had never issued. This is a question between purchasers; and the maxim quiprior est tempore potior est jure is also a good maxim in equity, where the equity is like the present.
    Atherton, for defendants:
    Defendants contend the lands given to revolutionary soldiers, on account of military services, were a bounty, in consideration of fidelity in the performance of those services, and an encouragement to engage therein, not differing in principle from the case of soldiers in the French war, whose bounty in land was provided for by the royal proclamation, 1763. L. L. *U. S. 30, 168, ed. 1817. The only distinction (besides personal application in the latter case) is, that the former was prospective, the latter retrospective, and neither recognizing the privilege of assigning nor the right of assignees. The warrants were not, and being the bounty of the United States, could not, be issued as a,payment, but were intended as a testimonial that the soldier was entitled to the land as a gratuitous and enduring memorial of his patriotism, and without reference to the length of the time of service, provided “ he continued to serve until the close of tho war, or was discharged by Congress; ” and Congress expressly declared, that it would “ not grant' lands to any person or persons claiming under assignment of any officer or soldier.” Resolutions 16, 18, 20, Sept. 1776, L. L. U. S. 168. An ordinance of July 9, 1788, authorized warrants to issue to assignees of soldiers, lb. 169; but no act of Congress having made a grant of land to assignees of warrants prior to the location of the lands in question, excepting three hundred acres to Ithamar Canfield, by the act of May 10,'1800, lb. 174; and that on condition “ the transfer’s and powers of attorney were made out pursuant to the rules in such cases established at the war office;” the defendants contend that the right of General John Stark to the lands in question can not be affected by any supposed transfer or assignment; or if the above-mentioned act in favor of Canfield be construed to vest the right to the land in the assignee of the warrant, by virtue of the assignment merely, and to have that influence in other cases, then it is incumbent on the complainant to show in his bill, and prove the “rules established in such cases in the war office,” and that assignment was made in conformity to them; neither of which is done in this ease. The defendants contend that no other mode of transferring land warrants than such as had been ascertained by law could be valid to vest the equitable right to the land in any holder, and that the practice of transferring by delivery, had never been thus ascertained. If, however, it should be held that a delivery of the warrants was sufficient to transfer the equitable right to the land, defendants contend that in this case the fact that General Stark did deliver or transfer them not being proved, and in defendants’ answer denied, can not be taken as true. The testimony on that subject is mere narration of reports. It only proves that the warrants came into market through the agency of B. F. Stark, and not *that General Stark had authorized the act, or was even connusant of it.
    The defendants contend that previous to the issuing of the patents, the interest of the warrantee could not be parted with by deed or assurance of conveyance only. Allen’s Lessee v. Parish, 3 Ohio, 107. That no evidence of declai-ations of General Stark, that he had given the warrants to any one, or that he intended to do so, can be available to pass the lands, unless as corroborative evidence of his having made such deed or assurance, and in the case of its being lost, or in the possession of the adverse party, lb. And even then, other evidence than the declaration of the co-heirs would seem necessary, lb.; especially when, as here, no such deed or assurance is charged, proved, or pretended by complainant. Defendants contend that the military lands were always subject to the control of Congress, to direct the manner of location of warrants, or to suspend them altogether. That the law designating the territory on which to locate operates as, and is a grant to the soldier and his legal representatives, of his quantum of land; no matter whether in classes of four thousand acres or one hundred acre lots; that between government and the assignee of the warrant, there never was a privity of contract; that any claim of an assignee, without a legal conveyance or contract to convey the land, confirmed after location, is a fraud on the soldier and on the government, or rather on the fund for satisfying the resolution of 1776. That though location was first authorized in four thousand acre tracts, and a patent ordered by law to be granted to the holder or locator, yet. that the law did not recognize the holder or locator as the grantee of the land; that such ¡jalen tee must, in equity, be held as the trustee of the soldier, whenever the soldier can designate the location of his warrant; a matter now, probably, very difficult, if not,impossible in most cases, since the burning of the war office.
    The defendants contend that the act of March 1, 1800, L. L. U. S. 173, swept away the pretensions of all assignees of unlocated warrants, so far as the fifty quarter townships wore concerned, not by invalidating contracts made bona fide, but by repealing all former laws in relation to the manner of locating. That it was competent for government to do so; for, until that time, after the first location, various acts were passed extending the time of location to a. d. 1818, Id. 171, ^without which they would have been barred, lb. Id.; that by the act of March 1,1800, besides providing for a new mode of location on the fifty quarter townships, the government made a grant (Allen’s Lessee v. Parish) of the land. directly to all the soldiers whose warrants were yet unlocated. That the warrants, yet afloat by the true meaning of that act, proved the amount of the grant; or if no warrant had been issued, the amount would be ascertained as in the first issuing of warrants; or if the act can not be construed as making a specific grant, as above contended, the almost unlimited frauds committed on the soldiers and the fund by speculators demanded of the government a restriction. The rights of honest purchasers, it might be presumed, would be respected by the patentee and confirmed by deed,"as in Smith v. Shaw, Sup. C. U. S., Jan. Term, 1834. But it could never have entered into the head of any but a rash speculator that a claim founded on no evidence of sale, no conveyance or assurance, in defiance of the voice of the law and the universal cry of fraud against him, would, in equity and good conscience, be confirmed, merely because he held the warrant, or could prove some long-forgotten tale of the intention of the soldier at some time to dispose of it in a particular manner; or by pretending, as in this case, that he and his partner had claimed the land, and that the one had released to the other 1 The defendants contend that all the acts and doings of the complainant, as set forth in his bill in relation to the lands in question, amount to no more than an attempt to set up a claim. He does not show that he ever applied to Gen. Stark for a title; nor does he, nor can he offer an excuse for the omission, or with propriety aver that he was ignorant of the residence of Gen. Stark; for his residence, like his fame, is apart of the history of our revolutionary struggle.
    The delendants contend that even if, as between Gen. John Stark and complainant, equity and good conscience would decree for the complainant; yot, in this case, the decree must be for the defendants, as he purchased from the other heirs without any knowledge that Gen. Stark had ever given or intended to give the warrants to B. E. Stark. This knowledge is charged in the bill, denied in the answer, and only seems to be proved by the testimony of John Stark, the son; and his testimony given subsequent to conveyance of his share to the defendants, while the defendants’ answer in this ^particular is confirmed by numerous letters to the defendants, and their answers to some, filed in this case at the request of complainant himself.
    The delendants contend that they are not chargeable with laches in neglecting to prosecute their claim. The judgment at law, which complainant seeks to enjoin, shows that for the last six or eight years he has been pursuing his claim. He contends that the existence of that judgment furnishes sufficient answer to that suggestion. But they contend that the complainant, in neglecting from the year 1801 to the year 1822, to apply to Gen. Stark, in his lifetime, for a conveyance, and neglecting for ten years longer to present his claim satisfactorily to a court of equity, evinces a consciousness of the entire rottenness of his pretensions, of which the court will necessarily take notice.
   Judge Lane

delivered the opinion of the court:

The first step in proof, which must be made by the plaintiff, is to show a lawful authority in the broker of Philadelphia to make the sale under which the plaintiff derives his title. For the defendants are heirs, holding the estate of their ancestor, from whom no equities should be exacted, except those which spring from a valuable and meritorious consideration. The proofs adduced to show this fact are voluminous, and it will serve no good purpose to repeat them; it is enough to announce that they do not show the authority to make the sale with sufficient certainty to lead us to invade the title of the heirs Injunction dissolved.

Bill dismissed.


author: Judge Grimke

text:
    *Zenas Kent v. Lucius N. Bierce.
    Where the court order a second injunction bond to he given, which order is not substantially complied with, the first bond is not discharged.
    This case was adjourned from Portage county.
    Otis, for plaintiff.
    Hitchcock, for defendant.
   Judge Grimke

stated the case and delivered the opinion of the court:

This is a suit on an injunction bond, executed 29th June.

The plea avers that after the giving of this bond, the defendants, by an interlocutory decree, were ordered to give another bond in substitution of the first, which order has been complied with. The replication denies this, and avers that it was ordered by the court that the injunction should be continued on the defendant (the then complainant), giving further bond, etc., and to this replication there is a demurrer. The case differs materially from the one in 6 Ohio, 336. There the demurrer was to the plea, and this admitted the fact that the second bond was substituted in the place of the first. It admitted it, provided it was well pleaded, and it was decided that it was well pleaded, that is, that it was in, the power of the court to make an order of that kind. The question now presented is still narrower than it was in the former case. The fact that the second bond was not given in substitution of the first is admitted by the demurrer to the replication, and thus by a mere change of the pleadings, an entirely new aspect is-given to the case. And it is, perhaps, fortunate that it is so, for in no other way can substantial justice be done between the parties,, since, if the plaintiff were compelled to rely upon the new security,, it would be productive of little or no advantage to him, as it is conditioned merely for the payment of the costs. If this was-a mistake of the clerk, it is but fair that that mistake should not operate to the disadvantage of the plaintiff. But, however that may be, it is evident from the present state of the pleadings, that the new bond can not be considered as superseding the old one,, and the demurrer, therefore, must be overruled.

Judge Hitchcock, having been counsel for defendant, did not sit in this cause.


text:
    *Candee and others v. Kelsey and Goodloe.
    "Where appearance-bail is given, the plaintiff waives his bond by accepting a plea and taking judgment, no special bail being entered.
    This case was adjourned from Hamilton county, upon a case agreed. >
    Star, for plaintiffs.
    Storer and Spencer, for defendants.
   Judge Lane

stated the ease, and delivered the opinion of the •court:

In August, 1834, the plaintiffs sued Kelsey, for -whose appearance Goodloe became bail.

In October, 1834, a declaration de bene esse was filed against Kelley, and no further steps by plaintifife; at the December term, 1834, Kelsey filed his plea; at the same term the case was continued for want of special bail. At February term, 1835, the parties appeared, and judgment was rendered against Kelsey.

In February term, 1835, the present suit of debt was instituted upon the bail bond, and it is agreed that if the plaintiffs are entitled to judgment upon these facts, that it shall be entered upon the pleadings.'

The point which is presented upon these pleadings is, whether a plaintiff, who has accepted a plea and taken judgment against a defendant, can afterward sustain action on the bail bond.

Nothing can be more abundantly settled in the English practice than that any step by the plaintiff beyond the mere filing a declaration de bene esse, is a discharge of the bail bond; that a declaration in chief, or the acceptance of a plea from the defendant, or the entry of a judgment against him, is deemed a waiver. 1 Tidd, 223; 1 Seld. 152; 9 Johns. 73; 7 Johns. 119.

It is insisted, however, that our statute innovates upon this practice, and contemplates the pursuit of the defendant in the original action to judgment, at the option of the plaintiff, at any time after the plaintiff has lost a term. The correctness of this opinion is not perceived; it is evident that upon a failure to perform the condition of a bond, the plaintiff may pursue the defendant, the sheriff, or the bail, at his election; but we abide by the whole body of precedents, in holding that the selection of one is a waiver of right against the other

Judgment for defendants.


text:
    *Philo Scovil v. C. M. Geddings and others.
    'Officers acting in good faith, under an order regularly made by town trustees for grading a street, are not liable for injuries sustained by individuals in such grading.

      This cause was adjourned from the county of Cuyahoga. It was a special action on the case, for an injury to a lot of land and house owned by the plaintiff in the town of Cleveland. The alleged injury was committed by the defendants acting under .an order of the trustees of the town for grading the streets. In making this grade, the earth was removed in front of the plaintiff’s house and lot, by which he was put to inconvenience and loss; but no unnecessary damage was done, and no act performed except, in good faith, under the order of the trustees. The court charged the jury that the plaintiff was entitled to recover, and a verdict was rendered for the plaintiff for five hundred dollars damages. A motion was made for a new trial on the grounds of error in the charge and excessive damages.
    Andrews and Port, for defendant,
    and in support of the motion :
    The action is not maintainable. It is a contradiction in terms •to say that an action in tort can be maintained for a lawful act lawfully performed. In all declarations in case, it is or should be averred that the act which constitutes the foundation of the suit, was wrongfully or unlawfully done; and in Callender v. Marsh, 1 Pick. 435, Chief Justice Parker remarks that, “in no case can a person be liable to an action as for a tort, for an act which he is authorized by law to do.” The motion shows that the act complained of in the case before the court was a lawful act.
    The action is not maintainable, because the defendants are public agents, acting lawfully within their jurisdiction. This point was expressly decided in the cases of the Gunner and Company of the Glass Plate Manufacturers v. Meredith and others, 4 Term, 794; Steele v. Western Lock Navigation Company, 2 Johns. 286; Sutton v. Clark, 6 Taunt. 42; Boulden v. Crouther, 2 Barn. & Cress. 703; Callender v. Marsh, above cited, and Harmon v. Tappender and another, 1 East, 555.
    In Boulton v. Crouther, it was decided by the court of king’s bench that trustees under a general turnpike act, who were authorized to grade and repair roads, were not liable for *any consequential injury resulting from an act which they were authorized to do. In delivering the opinion of the court, Chief Justice Abbott expresses himself as follows: “If the act done'be an act which the trustees were authorized to do, the next question is, whether any individual who has sustained some injury from the act done, can maintain an action at the common law; that he can not, is expressly laid down by Lord Kenyon and Justice Buller, in the ease of the Plate Class Company. It seems-to me that the case is a distinct authority upon the point.” Justice Holroyd remarks that “it would be absurd to hold that an action would lie against them (the trustees) for doing an act which they are empowered by act of Parliament to do.” Mr. Justice Little-dale takes a distinction between persons acting for their own benefit, and public agents acting for the benefit of the public.. “I agree (he says) that a private individual must use his own land so as not to injure that of another, but the private individual acts for his own benefit, and ought not to obtain a benefit at the-expense of his neighbor. But where an act of Parliament vests a power in trustees to be exercised by them, not for their own benefit, but for that of the public, and gives no compensation for' damages resulting from an act done by them in the execution of that power, the legislature must be taken to have intended that an-individual should not receive any compensation for the loss resulting to him from an act so done for the public benefit.” It is-confidently submitted that these cases settle the point, that tirsaction is not maintainable against these defendants at common, law, and that no authority can be found in which it has been-decided that public agents are liable in tort for acts done by them within their jurisdiction, and where no negligence or malicious motive are imputed to them. The cases of Goodloe and Smith v. City of Cincinnati, Ohio, 500, 514, do not conflict with those above cited. There the court decided that where a public corporation acts illegally and maliciously, or illegally without malice,, to the prejudice of an individual, an action in the case for damages-may be sustained against such corporation — a doctrine which is-not controverted here. If an action can be maintained at all against a corporation for the consequences of a lawful act, it is-submitted that it should be in assumpsit upon a promise implied by law in consideration of benefit derived from that act to the corporation, and this was the opinion of Justice Littledale, above *referred to. At any rate, if the court should be of. opinion that in this case an action might have been maintained against the corporation upon the ground that the act complained of was-done for their benefit, still it is respectfully submitted that it ' rehould not extend to their agents, acting lawfully, and for whose benefit the work was not performed; that the rule should not ■extend beyond the reason which supports it, and that such an interpretation of the law, by putting an end to .public agencies of this description, would be contrary to public policy and subversive of important public interests. If judgment is rendered against the defendants in this case, they can have no redress against the ■corporation. 2 Wilson, 133; 8 Term, 186.
    Again, it is contended that the action can not be maintained, because, at the time the street was laid out, and the right to alter and grade it was acquired by the public, the plaintiff, or those under whom he claims, was paid for the interest of which he was thus deprived. When the land of an individual is appropriated as a highway, the public are bound to make him compensation for any injury he may sustain. The use of the highway, the right to alter, grade, and repair it, and the effect which the exercise of these rights may have upon land adjoining the highway, are all embraced in the estimate of damages, and these damages being ■once assessed, the question of compensation (while the public use and improve that highway in a lawful manner) is at an end; ■otherwise they might be compelled to pay for the privilege more than once.
    Finally, the suit can not be maintained, because the statutes au- ■ thorizing the improvements complained of, prescribed a particular mode of assessing damages and making compensation. Itds •conceded that where there is a common law remedy, and also a ■ statute remedy, not inconsistent with it, either may be resorted to by the party aggrieved; but where (as in this case) there was .no remedy at common law, and the statute prescribes one, the latter alone must be pursued. See, upon this point, the opinions ■of Justices Buller and Grose, in the case of the Plate Glass Company, 4 Dunf. & East, 794.
    The act amendatory of the act incorporating the village of •Cleveland (23 Ohio L. L. 321, see. 2, and which is the law under which the work was done) appointed three persons to appraise the damage which had accrued or might accrue to the property ■of any person whatever by reason of the grading, *and to assess the amount of such appraisal upon lands in the village according to the benefit derived thereto, from the improvements which might be or had been made — a provision which would be defeated if a suit could be maintained in any other form; as in that event the debt must be paid from the general funds of the-corporation, and not by a discriminating tax as contemplated by the act. The very object of this provision might have been to establish a uniform rule for the assessment of damages, and to relieve the corporation from a multiplicity of suits.
    Whittleset and Newton, for plaintiff:
    In this action it is insisted, by the defense, that no action in tort can be maintained, because the defendants acted carefully. If we-should admit that the defendants acted carefully, and that no injury accrued to the complainant, then no action could be maintained; but it can not but be admitted that the plaintiff has sustained an injury, and that by the advice and direction of those against whom this suit is brought, and the injury does not arise from the breach of a contract.
    If the law under which the earth was pretended to be dug from the door of the plaintiff, does not repeal the common law, it is-manifest that this is the appropriate form of action. By the common law, any one who committed an injury, or advised or directed it to be done, was liable to the party injured. This grading law (and this is a very appropriate term) directs what course may be pursued by the party injured. It does not thereby repeal the common law, but it is merely cumulative. We regard the common law as having the same influence over the acts done by the-defendants as if no remedy had been pointed out by the act under which they profess to act. Whether they are agents or principals-can make no difference if this action can be maintained at all.
   Judge Grimke

delivered the opinion of the court:

There is no question with regard to the authority of the-trustees to execute this work. The act, 33 Ohio L. L. 220, expressly confers it upon them, nor is it pretended that the defendants in doing the act complained of, were not acting within the scope of this authority. Then the principle of law, that where individuals are exercising a power which the law has *given them they can not be made answerable for it in any form of action, applies It is a principle of universal application, and is absolutely necessary to the protection of all those in whom any public trust is confided. The case of Goodloe v. City of Cincinnati does not contradict this position. There it was decided that when the corporation of a town acts illegally and maliciously to the prejudice of an individual, an action on the case for damages may be sustained against them. In Leader v. Moxton, 3 Wils. 461, a special action on the case was sustained against pavers for raising the street in the front of the plaintiff’s houses, by which the passage and lights to the houses were obstructed. In the British Glass Plate Manufacturers v. Meredith and others, 4 Dunf. & East, 789, this case is denied to be law, and Lord Kenyon even doubts the accuracy of the report of it. Prom the language of Gould, who speaks of the defendants having misdevieaned themselves in the trust confided to them, and of having committed an enormous injury to the plaintiffs, it may reasonably be inferred that they had exceeded the powers committed to them, and as the abuse of an authority given by the law renders the party a trespásser ab initio, the case, even as it is reported, is reconcilable with the general principle of law. At any rate, if it is intended to carry any further meaning than this; it can not be considered as law, and it is contradicted by nearly the whole current of English and American authorities. The case last mentioned from Dunford & East was nearly the same as in Wilson. It was an action on the case against commissioners appointed by a paving act; and it was decided that neither they, nor any persons acting under them, were liable for any injury occasioned to the plaintiffs by altering and raising the street. Lord Kenyon said, “if this action can be maintained, every turnpike act, paving and navigation act, would give rise to an ' infinity of actions; some individuals suffer an inconvenience under these acts ; but the interests of individuals must give way to the public welfare.” Callender v. Marsh, 1 Pick. 418, was precisely the same as the ease before the court, and it was there decided that “ a surveyor has authority, by the statute, to dig down or raise a street, and if he does it with discretion, and not wantonly, a party injured can not maintain an action against him nor against any other person.” In the case in Dunford & East, Buller said he was clear the action could not be maintained upon general principles, and he was *also of opinion that the provision in the act for making compensation would also forbid the idea of any action being maintained. The provision for making compensation was nearly the same as in the act of March 7, 1835, amending the charter of incorporation of the town of ■Cleveland. It will be observed that the indirect injury which may be done to private property by lowering or raising a street, ■does not come within section 4, of article 8, of the constitution of ■Ohio. Private property is not taken for public uses, but a damage or inconvenience only is sustained by private property. Ample provision, however, has been made by the law for remunerating the plaintiff, and if he does not choose to avail himself of it, he certainly can not succeed in this action. Infinite mischief would be the consequence if he could. No man could be found •bold enough to engage in any public trust, if the law which invested him with authority were to be converted into a weapon of •defense against himself.

As neither upon precedent nor upon principle, can this action be sustained, a new trial must be granted.


text:
    Doe et dem. Johnson et al. v. Walter Turner.
    A deed conveying lands is not to be impeached, by showing that one of the subscribing witnesses, is incompetent to testify.
    Where a trust deed conveys several tracts of land, and empowers the trustee to sell them together, or in lots, and a sale of the whole is made at once, without objection from the grantor, the sale is valid.
    In this case an agreed statement of facts is submitted on which the questions to be decided arise. Walter Turner was indebted to the Bank of Zanesville in the amount stated in the trust deed under which the plaintiffs claimed, and on the application of C. B. Goddard, Esq., the attorney for the bank, executed the deed which was prepared and signed by said Goddard, as one of the •subscribing witnesses, he being a stockholder in the corporation.
    That part of the trust deed which is connected with the case, is in these words: “ And I do hereby expressly empower the said Oharles C. Gilbert, his heirs and assigns, upon giving sixty days’ notice of the time and place of sale, in some newspaper printed in said Coshocton county, to sell to the highest bidder, at public sale, for cash or credit, as my said trustee may deem best, without re-serve and without appraisement, all of said land, or so much thereof as may be necessary, either together or in lots, and of the proceed,” etc.
    *In pursuance of the above power, the trustee published the following notice: “ That by virtue of a deed of trust executed to me by Walter Turner,” etc., “I shall, on Monday, the 6th day ■of July next, between the hours,” etc., “ at,” etc., “ sell to the high■est bidder, for cash, without reserve and-without appraisement, all the right, title, and interest of the said Walter Turner to the following described pieces or parcels of land, situate,” etc., minutely ■describing several lots and parcels.
    The lands were sold under this notice, in one parcel. Turner was present at the sale, and knew the lands were sold in one par-cel, but expressed neither assent nor dissent thereto.
    It is agreed by counsel, if the trust deed is admissible in evidence, and the sale in one parcel is no objection to the sale, then judgment shall be rendered for the plaintiffs; otherwise, for the defendant.
    R. Stillwell, for the defendant:
    In support of his objections to the deed and sale, cited 1 Day, -51-53, in note; 1 Ld. Raym. 505; 2 Strange, 1253; 7 Com. D. 199 ; 1 Burr. 417; Touch. 53-55; 5 Ohio, 190; 4 Johns. 216.
    Goddard and Converse, contra:
    Cited 31 Ohio Stat. 346, sec. 1; also act relating to wills, Id. 242; Smith v. Chamberlin, 2 N. H. 440; Bank Muskingum v. Carpenter’s Adm’rs et al. 7 Ohio, 21; Honeywood v. Peacock, 3 Camp. 196; 1 Ohio, 245, 350; Union Bank of Maryland v. Ridgeley, 1 .Har. & Gill, 324.
   Judge Wood

delivered the opinion of the court:

The, first question for the consideration of the court is the objection to the trust deed, because, at the time of its execution, General Goddard, one of the subscribing witnesses, was a stockholder in the Bank of Zanesville. If this objection is sustainable, the deed is invalid to pass the legal title of the lands intended to be conveyed to the trustee for the security of the bank, and ought not to be received in evidence in support of a legal title in the plaintiff’s lessors. In this action it is the legal title which is to be asoertained. It prevails over all ^equities, however strong, between the parties. The plaintiffs can not recover without it, and it is not conveyed by any instrument defectively executed. Our statute has prescribed the formalities to be observed in the disposition of real property, and they can not be dispensed with but at the imminent peril of losing our legal rights.

But is not this deed in conformity with the statute? This is admitted, in all respects, excepting that General Goddard was interested in the corporation for whose benefit it was made, when he subscribed it as a witness, and it was executed by Turner. If interested, however small that interest may be, the general rule of law excludes thewitnessfrom giving testimony. Itdistrusts him anddeclares him disqualified. But if it be necessary to sustain this deed, to call this subscribing witness, would the rule which excludes an-interested witness apply? The party whose right it is to object on the ground of interest may waive that objection and the witness is then competent. He may call him himself, and he is competent • because if he testify for himself, who has the right to object? His-evidence is against his own interest, and the more worthy of credence; and if called by the other side, whose claim it is his interest to support, and the objection of interest be waived, the law admits-him to testify.

Ought this grantor, then, Turner, not to be considered as having waived all right to object to the competency of the witness ?

In England, the grantee must prepare the conveyance and present it to the grantor for execution. We know of no such rule here-The grantor prepares his own deed. He calls his witnesses; they are selected by himself. He must then acknowledge its execution,, and not until thus acknowledged, does he part with its possession by a delivery to the granteo. Every act, therefore, is the act of the grantor while the deed remains in his possession, and the first act of the granteo is the acceptance when finally delivered to him. The grantor, then, should not, it appears to us, be permitted to object to a witness selected by himself, and in whose integrity he had reposed confidence, to bear witness to his own acts. But aside from this course of reasoning, is this deed invalid ? The statute, vol. xxxi, 346, sec. 1, requires the deed to be executed “ in the presence of two witnesses, who shall attest such signing and sealing and subscribe their names to such attestation.” Unless *the express provisions of this statute, or its plain inference, lead to the conclusion that the witnesses to a deed must be credible and competent to prove its execution at the time of their attestation, and that such was the intention of the legislature, reluctantly, indeed, would this court adopt such an opinion ? If such be the law, it is time to look around us and ascertain by whom our deeds bear witness. Who ever instituted an inquiry when a witness was called to attest a deed, whether he was competent or incompetent to testify in a court of justice; or whether persons might not subsequently be found who would impeach him for the want of character for truth; whether conviction for crime, or the want of a correct opinion of the providences of God, according to the notions of others, might not exclude him from giving evidence ? Precarious, indeed, are our titles, if such is the principle to be established. For such question will most probably arise as frequently as the action of ejectment shall be resorted to, to establish a legal title. The words of the statute are, “ two witnesses who shall attest such signing and sealing.’’ It is, then, at the time of the execution, that they are to bear witness that the execution of the deed was the voluntary act of the grantor, by subscribing their names to such attestation ; not by proving its execution as competent and credible witnesses, half a century hence, in a court of justice. The plaintiff’s counsel have very properly said that the statute is silent as to the qualities of the witnesses. It neither requires them to be competent to testify, white, credible, disinterested, of proper religious belief, nor innocent of crime; but leaves the grantor at liberty to select such persons as he sees proper. In the case of a will, the statute prescribes that the witnesses shall be credible, and its execution in the presence of any other than credible witnesses would not be a compliance with its requisitions.

The counsel for the plaintiffs have furnished us with the case of Smith v. Chamberlin, 2 N. H. 440. The opinion is given by the chief justice, Richardson, and appears to us fully-to sustain us in-our opinion of the law of this case, as to the validity of the trust-deed. The opinion is founded on a statute of New Hampshire, of February 10, 1791 (1 N. H. Laws, 191), which contains this provision : “ That all deeds or other conveyances of any lands, tenements, or hereditaments, lying in this state, signed and sealed by the party granting the *same, having good and lawful authority thereunto, and signed by two or more witnesses, and acknowledged by such grantor or grantors before a justice of the peace, and recorded at length in the registry of deeds in the county where such lands,” . etc. “ lie, shall be valid to pass the same without any other act or -ceremony in law whatever.” On this section of the statute, the -chief justice says, “In the clause now under consideration, there is nothing which indicates an intention in the legislature to re- . quire that witnesses to a deed should be competent to prove its execution at the time they subscribe it as witnesses. We have been much at a loss to conjecture why two witnesses were in this instance required by the statute. Surely they were not intended to be placed round a grantor for the same reasons they are placed round a testator. The most plausible conjecture is, that it was intended to render the proof of the instrument more certain. If this • were the object, there is good reason to suppose that the word wit- . ness, was, in this instance, used in the simple sense of spectators . of the transaction. A witness competent at the time might in one hour become incompetent; and a witness incompetent at the time might in one hour become competent. All that could be done with this view, by the legislature, was to require that deeds should be • executed in the presence of two or more persons who should put their .names to the deeds as witnesses. It would have been idle to make the validity of the deed depend upon the incompetency of the wit- , nesses, at a time when they could not be wanted to prove the ex- . eeution of the deed.”

The second and only remaining objection to the title of the plaint- ■ iff’s lessors is, that the sale by the trustee was of the whole land in one parcel. We do not see on what principle this sale is invalid. ' The power to sell, it is true, is derived from the trust deed, and •.the authority there conferred must be pursued.

The deed authorizes the sale either together or in lots. The advertisement describes the property and gives notice that it will be ¡sold at a certain time and place to the highest bidder for cash, but does not specify whether it will be sold together or in lots. It would . seem, then, that either mode of disposing of the land at the sale was -entirely within the discretion of the trustee at the time of the sale, .agreeably with the power given by the deed. If there is any substantial ^variance between the advertisement for the sale in .the notice of its terms and conditions as conveyed to the community and those on which the sale was finally completed, we are unable to perceive it; and as Mr. Turner was present when the sale was made and did not express any dissatisfaction, we may naturally «conclude the sale was then supposed to conform to the intentions and wishes of the parties, and at least that he was satisfied there- • with.

Judgment will be entered for the plaintiffs.


author: Hitchcock, J.,

text:
    State of Ohio, for the use of Wm. W. Irwin v. Wm. Crooks and Andrew Shaw.
    When a sheriff, on the order of the court, gives additional security, either or both sets of bondsmen are liable to a party injured.
    A sheriff, in office, is re-elected and proceeds to do business without giving new security. The securities upon the first election are not responsible - for defaults committed under the second.
    This case was reserved in the county of Fairfield.
    It is an action of debt. The case made in the declaration is as - follows: On March 19, 1825, in the county of Fairfield, the defendants and one Edward B. Thompson, then the sheriff of said county,. by their writings obligatory, dated the said 19th day of March, bound themselves to the State of Ohio, in the penal sum of twenty-five hundred dollars, which writing obligatory, was and is subject to the following conditions, to wit: “ That whereas the said Edward B. Thompson had before that time given bond and security for the faithful discharge of his duty as sheriff aforesaid, in the sum of five thousand dollars, as the law directs, and whereas the associate judges of the court of common pleas in and for said county, at the March term of said court in the year last aforesaid, did consider and require the said Edward B. Thompson to give his bond with security, in addition to his bond aforesaid, in the further sum of twenty-five hundred dollars; if then the said Edward B. Thompson shall well, truly and faithfully do and perform all and every of the duties required of him as sheriff of the county aforesaid, according to law during his continuance in said office, then the foregoing obligation shall be void and of no effect, otherwise,” etc.
    The declaration then avers as the breach of said contract, that afterward, on September 27,1828, in the course of certain proceedings in partition which are specifically set forth, a sum of money ' amounting to sixty-five dollars and fifty-five cents, of right belonging to said Irwin, came into the *hands of Thompson, sheriff, as aforesaid, in virtue of his said office, which money was not by said Thompson brought into court, nor has the same been paid to said Irwin by the said Thompson during his lifetime, nor by his administrators since his death, nor has the same been paid by the ■said Crooks and Shaw, securities of the said Thompson, sheriff, etc. Whereby an action hath accrued, etc.
    To this declaration the defendants pleaded:
    1. Non est factum.

    2. That the said Thompson was at the annual election on the second Tuesday in October, 1824, duly elected sheriff of the county of Fairfield for the two years next succeeding. That having been •commissioned, he did, on November 4, 1824, at Fairfield county aforesaid, enter into an official bond in the penal sum of five thou" sand dollars with B. Buffner, Jacob Mussleman, Joseph Wilson, and George Berry, his securities, conditioned for the faithful performance of his duties as sheriff, which bond was approved by the court and deposited with the clerk. That said sheriff took upon himself his office on November 4, 1824, and continued therein for the term of two years. That during said term, to wit, on March 9, 1825, the associate judges of said county entered an order that said Edward B. Thompson, sheriff as aforesaid, should give additional bail in the sum of twenty-five hundred dollars within thirteen days. That the bond set forth in the declaration, executed by the defendants on March 19, 1825, was executed in compliance with said order; that since the execution of said bond, E. B. Thompson, Jacob Mussleman, and Benjamin Buffner, three of the obligors therein named, have departed this life, leaving the said Joseph Wilson and George Berry their survivors; that said bond so executed by said Thompson, Buffner, Mussleman, Wilson, and Berry, is now in full force, etc., and that the said surviving obligors are solvent .and well able to pay the said sum of five thousand dollars, the penalty thereof, to wit, at Fairfield county áforesaid.
    3. That at the annual election on the second Tuesday of October, 1824, said E. B. Thompson was duly elected sheriff, was commissioned and gave the several bonds as stated in the second plea. That at the annual election in 1826, said Thompson was again ■ duly elected sheriff for the constitutional term of two years, and
    on November 1, 1826, was duly ^commissioned. That he
    Jailed to give bond as required by the statute, whereby his office became vacant, and the duties thereof devolved upon G-othil Stein-man, who was then the acting coroner of said county, and remained bo vacant to the second Tuesday of October, 1828. That the several Bums of money in the declaration mentioned, were received by the said Thompson in the manner therein stated, after the expiration of his term of office from the second Tuesday of October, 1824.
    4. The same as the third plea, except that the election and commissioning of Thompson, in 1826, is not stated, with averments that the money charged in the declaration was received by him after his term of office had expired.
    These three several pleas conclude with a verification. Two other pleas were filed, but as no question was raised upon them for the consideration of the court they are not stated.
    To the three special pleas above stated the plaintiff demurred •generally, to which demurrer there is a joinder.
    Irwin,
    in support of the demurrer:
    Belied upon section 1, of article 6, of the constitution, which, provides that sheriffs and coroners “shall be elected at the time and place of holding elections for members of the general assembly ; they shall continue in office two years, if so long they behave well, and until their successors be chosen and qualified,” as showing the tenure of the sheriff’s office; and insisted that the law requiring sheriffs to give bonds conditioned for the faithful discharge of official duties, must be construed with reference to the constitutional provision. That such being the condition of the bond, the securities must bo holden until a successor to the sheriff, for whom they have become bound, shall be chosen and qualified.
    Braze®, for defendant,
    in support of the first special plea, insisted :
    That upon a fair construction of the law authorizing the associate judges to require additional securities of a sheriff, such additional securities ought not to be made liable until the first bond entered into was exhausted. If that was sufficient *to cover all the defalcations of the officer, no additional security was necessary; and if such additional security was given, to make them liable before the first bond was exhausted, was to treat them as original securities, which could not have been the intention of .the law.

      In support of the third and fourth special pleas, he argued that the contract of a surety is to be construed strictly, and is not to-be extended by implication beyond the fair scope of its terms. 5 Pet. Cond. 728; 3 Saund. 415, note 51.
    The office of sheriff being biennially elective, and the term for-which Thompson was elected, and in which he was serving when the bond was executed, had expired prior to the receipt of the money in the breaches of the declaration mentioned; therefore the defendants are not liable to pay it. 13 Saund. 412; 4 Dallas, 282; 4 Hen. & Mumf. 208; 5 Pet. Cond. 737 ; 2 Maul. & Sel. 363;. 2 Bing. 32; 8 Mass. 275 ; 6 East, 507; 2 Ohio, 334.
   Hitchcock, J.,

delivered the opinion of the court:

The act “defining the duties of sheriffs and coroners in certain cases,” passed February 25, 1824, and which was in force at the-time the cause of action in this case is supposed to have accrued, requires that these officers shall give bond within ten days after-they have received their commission, to the State of Ohio, with two or more securities to be approved of by the court of common, pleas of the proper county, in any sum not exceeding twenty thousand dollars, conditioned for the faithful discharge of the duties of their respective offices; and the court authorized, at any time during the continuance of the officer in office, to require-“further and additional security, as they may deem necessary.” Chase’s Stat. 1351. The bond now in suit was given in pursuance of this latter provision of the statute; and the question presented by the demurrer to the second plea is, whether such further or additional securities can be made liable for the default of the sheriff until the bond first executed is exhausted. Before the-sheriff can proceed to discharge the duties of his office, he must execute a bond with security conditioned for the faithful discharge of those duties. The amount is discretionary with the court, provided the same does not exceed twenty thousand dollars. But if, at any time, in the opinion of the court, further security is necessary, as may often appear to be the case, the court has a right to require it. This is a provision of law well calculated for the security of the public, and bought, in all cases, to be resorted to when there is the least apprehension that the first bond is not sufficient, either on account of the limited amount of the penalty or of the inability of the sureties to respond in that amount. If a second bond is required and executed, the condition is the same as in the first, and the obligors are equally bound with those in the first, for the same conduct of the sheriff, although perhaps not to the same extent. For neither can be bound beyond the amount of the penalty of the bond by them severally executed. A breach of the condition of one would be a breach of the condition of the other.

As, however, different bonds have been executed, and by different obligors, they can not be joined in the same suit. This furnishes no reason, however, why a person who has sustained an injury by the misconduct of a sheriff may not have his action upon either bond, as to him shall seem most proper. We incline to the opinion that'he may thus have his action, and therefore that his plea is not a bar to the plaintiff’s suit. Whether, after a recovery against one set of securities, and money made, these would have a claim for contribution against the others,- it is not necessary now to determine.

The third and fourth pleas are substantially the same, and raise the question whether the securities of a sheriff are holden for a period beyond that for which he had been elected when the bond was executed. It would seem clear, upon a bare statement of the proposition, that they are not. No principle is better settled, perhaps, than that securities shall not be bound beyond the scope of their undertaking, and that the obligation resting upon them shall not be extended by implication. To sustain this position, without quoting authorities, I shall barely refer to those cited by counsel for the defendants. Notwithstanding this principle is well established, we have no inconsiderable difficulty in coming to a conclusion in this case. This difficulty arises from an apparent conflict between the constitutional and statutory provisions upon the subject. I say apparent conflict because, from a careful examination, I am satisfied there is none in reality.

The first section of article 6 of the state constitution provides that “there shall be elected in each county one sheriff .and one coroner, by the citizens thereof,, who are qualified to vote for members of assembly. They shall be elected at the time and place of holding elections for members of assembly. *They shall continue in office for two years if they shall so long behave well,, and until successors be chosen and duly qualified: provided, that n.o person shall be eligible as sheriff for a. longer term than four years in any period of six years.” This section prescribe» the times at which sheriffs shall be elected, and by whom, but it does not prescribe the qualifications of the individual who may be elected, nor is anything required of him before entering upon the duties of his office, except that, like all other persons elected ■or appointed to offices of trust or profit under the authority of the state, he shall take an oath of office. It prescribes also the term of office; it is two years. And he is allowed to continue in office until his successor is chosen and qualified. He shall not, however, ■be elected for a longer term than four years in six. The design ■of permitting him to hold even until a successor was qualified, undoubtedly was that there should be no vacancy for the reasonable time that it would take to have the successor notified of his election, commissioned, and qualified. Counsel for the plaintiff seem to suppose that if the person elected to succeed a sheriff in office should not qualify, that the incumbent might hold even without limitation of time, and in this way defeat the spirit of that part of the constitution which limits the term of service to four years in six. Does it follow, because the sheriff is an officer known to the constitution, and the time, place, and manner of his election is prescribed in that instrument, that the legislature can not legislate upon the subject? We apprehend not; and so it was held in the case of State of Ohio ex rel. Uriah Loomis V. L. Moffitt, 5 Ohio, 366. The legislature have not the power to say that a sheriff shall be elected for a longer or shorter period than two years, or for more than four years in six. They have not the power to change the qualifications of electors voting for this officer, or to say that he shall not hold his office until his successor is chosen and qualified, because, in so doing, they would explicitly violate the constitution. But they have the power to provide in consequence of what acts of the officer, or of the neglect of what duties the office shall be considered vacant. They have the power also to prescribe the duties of the office, for this is not done by the constitution itself. They have the power also to prescribe the qualifications necessary to render a man eligible to the office, and io prescribe the necessary qualifications to be taken after a person is elected, before he *shall proceed to discharge the duties of the office. If they provide that in consequence of the commission of certain acts, or the omission of certain duties by an incumbent, the office shall be considered vacant, they have the power to direct what officer shall succeed that incumbent, in the discharge of the duties of that office, until a sheriff can be regularly elected and qualified. All these things, and many others, may be done by the general assembly, and still the constitution would not be violated, because the legislation would not be inconsistent with it.

In pursuance of the powers vested in the legislature, that body has acted upon this subject It has prescribed the duties and qualifications of sheriffs. 'For the security of the public and of individuals, this officer, after his election, and before entering upon the duties of his office, is required to give bond with security conditioned for the faithful discharge of those duties. This bond is a thing unknown to the constitution; it is a creature of the statute. And in order to ascertain the extent of the liability of the obligors, it is necessary to have resort to this statute.

The act of February 25,1824, defining the duties of sheriffs and coroners, Chase’s Stat. 1351, in the first section, requires a sheriff ■within ten days after having received his commission, to give bond with security, tó be approved of by the court of common pleas, conditioned for the faithful discharge of the duties of his office, and upon failure to give the bond within the time prescribed by law, “he shall be taken and deemed to have resigned his said office.” The same sección authorizes the court of common pleas to require further or additional security, and upon the failure of the sheriff to give this additional security, the court is authorized to declare the office of such sheriff vacant, and proceed accordingly.”

By section 8, it is made the duty of any sheriff, the term of office for which he was elected having expired, to deliver over all ' writs, prisoners, etc., “ to such person as may have been elected and qualified to discharge the duties of sheriff, or if no such person shall have been so elected and qualified as aforesaid, then to the coroner of said county,” etc. The same section provides, that during the time the office of sheriff shall be vacant in any county, the coroner thereof shall be bound to perform all the duties, and be vested with all the powers of sheriff of said county.” In effect, when the sheriff Select does not qualify, the coroner becomes successor to the former sheriff. His successor has been elected, but not having qualified, the law declares the office vacant, and when vacant, the same law declares that the coroner shall act as sheriff.

That the same individual shall have been re-elected can make no-difference in the case. The constitution has prescribed the term, of office. It is two years. When he is re-elected, he must be again commissioned, and within ten days thereafter, he must execute the bond, and upon failure so to do, “ he shall be taken and deemed to have resigned his said office.” Having resigned the office of sheriff, with what propriety can he still discharge the duties of the office under a former election ?

With this law before them, what would the securities of a sheriff, when about to execute the bond, suppose was the extent of their undertaking? Nothing more than that he should faithfully discharge the duties of his office during the term for which he was, elected. By adverting to the constitution, they would find this term was two years, and until a successor should be elected and qualified. The constitution requires, that at the end of two years^ a successor shall be elected, and the law requiring the bond which they are about to execute, provides, that if this successor fails to qualify, the office of sheriff shall be held to be vacant, and the-coroner shall succeed to discharge its duties. They would be led to the conclusion that their obligation, at the furthermost, could not continue beyond ten days after a successor had been commissioned. This seems to a majority of the court to be the commonsense construction of this statute, taken in connection with the constitution, and that it is not within the scope of the undertaking-of the securities of a sheriff, that they shall be bound for his performance of the duties of his office beyond the term for which he is elected when the obligation is entered into.

This view of the subject is sustained by the following cases: Commonwealth v. Daynton, 4 Dallas, 282; Commonwealth v. Fairfax et al., 4 Hen. & Mumf. 208; United States v. Kirkpatrick, 9 Wheaton, 720; Farrer & Brown v. United States, 5 Pet. 373; Proprietors & Co. of the Liverpool Water-works v. Atkinson, 6 East, 507; Lord Arlington v. Merricke, 3 Saund. 412 ; Thompson v. Young and Wife, 2 Ohio, 334.

*These cases are all somewhat analogous to the case now before the court, and the case of the Commonwealth v. Fairfax and others peculiarly so. That was an action against the sureties of a sheriff upon his official bond. The statute of Yirginia provides, that “ every person commissioned and qualified as sheriff shall be continued in office one year after his qualification, and ■may, with his own consent,, and the approbation of the executive, -be continued for two years, and no longer, unless by some accident -or impediment, a succeeding sheriff shall be prevented from qualifying, in which case the preceding sheriff shall continue to act till .a successor be duly qualified.”

Alexander White had been appointed sheriff of Jefferson county, •and the defendants were his securities. The default for which the •suit was brought happened in the second year of his sheriffalty. For this year he had not given bonds.

The court decided that the defendants were holden only for the first year ,of his appointment, and as the defalcation happened •afterward, they were exonerated.

In the case now under consideration, the third and fourth pleas •.show that Thompson was elected sheriff in October, 1824, and that for the faithful performance of the duties of the office for the term for which he was then elected, these defendants executed the bond •now in suit. He was re-elected in 1826, but gave no bond, consequently, under the law, the duties of the office devolved upon the •coroner. Although Thompson continued to discharge the duties •of the office, he was not sheriff de jure, but merely de facto. It was during this period that the moneys of the plaintiff came into his hands, and payment oí these moneys was refused. This not ■being within the time for which these defendants were bound for his faithful performance, they can not be made liable for his default.

These pleas are a bar to the action'; the demurrer must be «therefore overruled, and judgment rendered for the defendants.


text:
    *Lewis S. Mæller and Eleanor Mæller v. Isaac Flowers.
    A justice of the peace has jurisdiction in a case for a nuisance to real estate where the damages are under one hundred dollars.
    This cause was adjourned from Perry county.
    Orton and Cusao, for plaintiffs.
    Irwin and Lovet, for defendant.
   Judge Grimke

stated the case and delivered the opinion of the court:

This is a writ of error to the common pleas of Perry county. It was an action of ti’espass on the case for an injury to land, and originated before a justice of the peace. The declaration describes the defendant as a tenant of the plaintiffs, and the injury set out was, in its character, a nuisance. The jury found a verdict for the plaintiffs. The court of common pleas arrested judgment on the verdict, and gave judgment for the defendant; to reverse which, the writ of error was sued. Thus the single question presented is, whether the magistrate had jurisdiction. The act of March 14, 1831, extends the jurisdiction of justices of the peace to actions of trespass on real estate. There is no reason why we should limit the term trespass to trespass vi et armis, where it is a general term, and comprehends actions of trespass on the case, as well as of trespass quare clausum fregit. There is nothing in the act which, signifies such an intention. On the contrary, the object of the legislature seems to be, to give a remedy for an injury committed upon the land without any discrimination as to the form of the remedy which should be used. Indeed, I apprehend there could be no doubt about the matter, if the term trespass vi et armis had not, in common language, usurped the almost exclusive appellation of trespass. But this is only because the other action may badesignated more briefly by the term action on the case. They are-both legally and technically actions of trespass, and, as I before remarked, the object of the legislature seems to have been to give the remedy where an injury to the land has been committed. In Nichol v. Patterson, 4 Ohio, 200, it was determined that a justice of the peace had no jurisdiction of an action for a nuisance to land. Section 62 of the judiciary act declares, that in the action for a nuisance, if the jury on the trial of the issue or on inquiry of damages, shall find or assess the ^damages under five dollars, the plaintiff shall not recover costs. Here the action for a. nuisance is by necessary implication withdrawn from the jurisdiction of a magistrate. “Upon a different construction, on an appeal by either of the parties, the plaintiff could not recover costs-unless the jury assessed the damages to five dollars. This would be the only exception to the general rule, that where the matter in-controversy is within the jurisdiction of a justice, the costs, whatever the amount assessed, should follow the damages.” On the whole, we are of opinion there was error in the opinion of the court below in arresting the judgment. •


text:
    Justin King and Wife v. Nicholas Longworth.
    Upon a mortgage to secure a debt due in installments, payable at different periods, equity does not interfere to enforce payment, until the whole amount is due.
    This cause was adjourned from the county of Hamilton.
    Fox and Wright, for complainants.

      V. Worthington, for defendant.
   Judge Lane

stated the case, and delivered the opinion of the court:

In December, 1821, King and wife mortgaged certain tenements to Longworth, to secure the payment of a debt of two thousand dollars, fifteen hundred dollars of which was payable in eight successive annual payments, and five hundred dollars in twelve years, with interest payable annually. In February, 1833, Long-worth instituted his suit in chancery to obtain payment. In August, 1833, a final decree was rendered, in which a sale was directed, to pay the whole amount unpaid, including the five hundred dollars which had not become due. A sale was made in September, when the present bill of review was filed, and further proceedings stayed. The common pleas sustained the defendant’s demurrer, from which the plaintiffs have brought the case to this court by appeal.

The question it presents is, whether in proceedings to enforce a mortgage payable in installments, it is competent to embrace, within the scope of the decree, a sum of money not due at the time of its passage, but to become due before a final distribution of the money ?

*It is the well-settled practice of chancery to sustain a bill to enforce the payment of debts secured by mortgage, and payable by installments, before all the installments are due. 1 Johns. Ch. 617; 1 Paige, 648; 2 Paige, 303; 1 Bibb, 144; see likewise 12 Serg. & Rawl. 240; 9 Mass. 298 ; 5 Pet. And where installments fall due between the filing of the bill and the final decree, they may be brought before the court by supplemental bill, or even without, if the facts sufficient appear upon the pleadings and proofs, and they may be embraced within it. But no judgment or decree can be rendered upon rights not yet accrued, and no presumption should be raised that a debt not yet due will not be paid. The decree, therefore, is irregular in finding the amount, composed in part of the sum of five hundred dollars, not payable until the December subsequent. The account should be taken of the amount then due, and a sale directed of so much as might be necessary to pay it. If the property be not divisible, the whole might be sold, and the residue, when brought into court, might be appropriated according to equity and the rights of the parties in a case made on motion, or petition, or supplemental bill.

There is another irregularity in this decree, though perhaps not sufficient to reverse it. The sale is directed absolutely, without any time being given to the mortgagor to make payment. A time should be appointed for this purpose, and the sale ordered .in the event of failure.

The decree is reversed, and the case remanded to the Supreme ■Court of the county for further proceedings.