author: Hitchcock, J.

text:
    Lessee of Samuel Fosdick vs. Thomas Risk.

    When a 'creditor, whoso debt is’secured by- mortgage,^recovers judgment for the same, debt, takés, out execution and causes the mortgaged premises,-to be sold,-the purchaser 'takes an indefeasible title, although the money .made is not sufficient to-.satisfy the entire debt. .• ’ • ; .1 : •
    The attestation’of a deed, that the same was'“sealed and delivered’? in presence of the subscribing witnesses, is sufficient.. ' • • *
    This is an action of" Ejectment, reserved in the County of Hamilton. , '
    The case was sübmittedto a jury, at the last term of-the, Supreme Court.in Hamilton 'county. Upon the trial, it was proved that,, in 1820, the defendant, ’Risk, sold apd conveyed the land'in controversy to one Huddart,. and" took back .a'mortgage from Huddart, to .secure a note of $1300, the purchase money unpaid; ■ The attestation of the déedj from- Risk to the defendant, was in these words;' “ Sealed and -.delivered in presence of” the two witnesses. At May term of the Court-of Common' Pleas, 1822, of Hamilton county, Risk recovered a judgment on this note, for $1356.76 damages, and $11.95' costs; Execution -was issued upon said judgment,, .and.-first levied upon the crops growing upon the.land; and after said crops wére sold; the execution' was levied upon the land, which subsequently sold at sheriff’s sale to Fosdick; the lessor of the plaintiff, for-$867. This sale was confirmed'by the'Court; and a deed executed and delivered by the sheriff to Fosdick. After the sale of the growing crops, Iiuddart abandoned the land, and Risk, the mortgagee, took possession, and was in at the time the land was sold to Fosdick. Risk was indebted to Richard Fosdick, the father of Samuel, lessor'of plaintiff, and there was evidence tending to show that, by or under an agreement between Risk and Richard Fosdick, the land was struck off and conveyed to the lessor of the plaintiff, who paid no part of the purchase money except the costs, and was to hold the legal title in trust, to secure the debt due to his father. The debt due to the father was not proven to have been paid. — ■ There was further testimony in the case, which it is unnecessary to recapitulate. The Court, by consent of parties, instructed the jury to return a verdict for the defendant, which was done accordingly, subject to the opinion of the Court upon the law arising on the facts before stated. If the Court should be of opinion that the law was with the plaintiff, then the verdict to be set aside and a new trial ordered, otherwise judgment to be entered on the verdict.
    In Bank.
    Dec. Term, 1846

      V. Worthington, for Plaintiff.
    First, I propose to consider Mr. Fosdick’s right of recovery, upon the basis, that the sale to him was bona fide, and unassailable in any respect. It will be perceived he holds title under a judicial sale upon the mortgage note, and the defendant essays to protect his possession under the mortgage.
    Had the sale produced a sum equal to the judgment debt and costs, it would have extinguished the mortgage debt; and when that was extinguished, the mortgage, as its auxiliary or attendant, would have fallen with it; 10 Ohio Rep. 436; 11 Ohio Rep. 341. A mortgage lives and dies with the debt it secures. Satisfaction of the debt destroys it. But, inasmuch as the sale produced only about, two-thirds of the mortgage debt, then the question arises, does it extinguish the mortgage entirely, or only pro tanto ?

      In New York, the sale of the mortgage premises under a judgment upon the accompanying note, if it produce a sum to the mortgage debt, or if it do not produce that sum, does not extinguish the mortgage in toto, nor pro tanto, because nothing is sold but the'equity of redemption. If the mortgagee pursue the mortgagor’s other property, after a partial satisfaction from the sale of the equity of redemption, he will be compelled to assign the mortgage to the mortgagor, to enable him to recoup from the purchaser of the equity of redemption; 2 Johns. Chan. Hep. 125, 503; 10 Johns. Rep. 492, or *481. This is upon the ground, the mortgage interest is not sold, but the residuum only. In Maryland, the debtor’s interest in premises mortgaged by him may be sold on execution; 9 Cranch’s Rep. 456; 3 Har. &, McHen. Rep. 535. So in Massachusetts, except at the instance of the mortgagee, who is precluded by statute, as it would cut off the three years’ redemption allowed after foreclosure; 1 Pick. B-ep. 354, 389; 4 Pick. Rep. 131. So in Connecticut, the equity of redemption may be taken in execution, but nothing but the equity of redemption; 1 Swift’s Dig. 155; 2 Conn. R,ep. 244 ; 3 Conn. Rep. 211; 5 Conn. Rep. 592. And so also in Kentucky, the equity of redemption can be sold on execution, at the instance of a general creditor, but not by the mortgagee, under a judgment, on the mortgage note. 7 Dana’s Rep. 64, 220; 4 B. Mon. Rep. 145.
    In these States, it will be perceived; nothing but,the equity of redemption, or the estate in the mortgagor, subject to the mortgage, is taken in execution; and nothing but that interest is sold. Hence the mortgage is left as a security untouched, as to any portion of' the debt not made certainly, and probably to the whole extent, so far as subrogatory rights aré concerned. So far as the debt is extinguished by the sale, it is very clear the mortgagee himself has no claim upon the mortgage premises, under or by virtue of the mortgage. And it would seem to follow, if nothing be sold but the equity of redemption, the purchaser would take subject to the mortgage, and the mortgagor would be entitled to subrogation and a transfer of the mortgage, because another interest in the mortgage premises has been sold, and subjected to the payment of the debt other than the mortgage interest, which still remains. But should the mortgagee assign the mortgage debt to the purchaser of the equity of redemption, it operates as an extinguisher, and he cannot pursue the mortgage ; 2 Johns. Chan. Rep. 125. Yet it does not follow the mortgagor has no' remedy for his lost estate, if the debt were paid from the sale of the equity of redemption, in whole or in part.
    Such, unquestionably, may be conceded to be the result from pursuing the note, and not the mortgage, and in subjecting, not the mortgage property, but the special interest of the mortgagor therein, under or beneath the mortgage. But would that be the case in Ohio now, or was it when this land was sold ? Our laws then did, and now do require the lands, and not the equity of redemption or estate of the judgment debtor, to be taken in execution, appraised and sold, for not less than two-thirds of the appraised value. The thing is appraised; the thing is sold — not the interest of the judgment debtor; 8 Ohio Rep. 24; 11 Ohio Rep. 342. It is true, the sale when carried into grant, gives nothing but the title of the debtor. It passes the lands under his legal title, whatever it may be. It is not the mere equity of redemption that is sold as a limited estate in the lands, but the land itself. The purchaser takes, under his deed, the entire land, and not the mere equity of redemption therein. All the interest of the judgment debtor in the land passes to him; and if the entire mortgage debt be extinguished by that operation, the purchaser takes the land, discharged of the mortgage, inasmuch as the sale is of the land, and not of the residuum.
    There is an important distinction in the Ohio system from all others, and it must necessarily require a rule of property to correspond with the change, and be commensurate with the new state of case it presents. We sell, in Ohio, the land — the thing itself • and if the sale extinguish the mortgage debt, the purchaser takes the title, discharged of the mortgage. The mortgagee cannot set it up, because he has no debt to sustain it. The mortgagor cannot, because his entire title has passed to the purchaser.
    If, in the present case, the mortgage debt had been paid by the proceeds of the sale, the purchaser would have taken the title; in fact, he would have taken the land, discharged of the mortgage, not only as to the mortgagee, but also as to the mortgagor. And, if such would have been the case in that event, it would seem to follow as a necessary consequence at least, where the mortgage property should be sold under the judgment upon the accompanying note, the mortgage should be extinguished to the extent of the sale, or pro tanto. So far as the judgment debtor was concerned, the land was gone from him. So far as the judgment creditor was concerned, the liens he had upon the land under the note and judgment, were gone from him. The purchaser is subrogated to his position for his protection against puisne rights, even those of the creditor himself ; 3 Ohio Rep. 529. He holds, it is true, as purchaser, but it is with the benefit of the judgment lien. He takes the interest of the debtor in the land at the time the judgment lien attached, and is invested with the rights of the creditor at that time; 3 Ohio Rep. 530. To that extent, and "or there purposes, the purchaser takes title against both; 2 Ohio Rep. 224; 10 Ohio Rep. 436. The judgment, by law, binds the land so soon as it begins to operate; and when the land passes into grant under the judgment, for some purposes the title is thrown back to the time of the judgment, and for others to the time of sale. The note is credited with the proceeds of the sale, and to that extent, certainly, the mortgagee is precluded. So that, whatever may be the result as to the residue of the debt under the mortgage, to the extent of the credit under the judgment and sale at law, the mortgage is discharged.
    We now come to consider whether the sale of the mortgage premises, under the proceeding upon the accompanying note, did not in fact extinguish the mortgage, even though the entire debt was not thereby satisfied and discharged. When these proceedings were had, the mortgagee had four distinct' remedies — three concurrent and one alternative, but all subordinate to, and available -only for the collection of his debt. He had an action upon his note, an action of ejectment, the scire facias remedy, and a bill of foreclosure. The first two, with the last, might be .used concurrently and at the same time, or the third pursued alone; 1 Ohio Rep. 158. The scire facias and bill' could not be used at the same time, because they both operated' to ctit off the equity of redemption, and were in effect one and the same: The one, summary and direct, but confined in its action'; the other, more expansive, and of greater remedial power, but equally as certain in its ultimate aim. The action of ejectment operated upon the possession, rents and profits,' but left the right of redemption and title at large. The action upon the note'operated upon other property, as well as that incumbered with the mortgage. If, under the proceedings upon the note, it was discharged or satisfied, the mortgage expired and ceased to operate. If the mortgage property be pursued, the mortgagee thus makes his election to subject it that way to the satisfaction of his debt, and, upon all just principles, should be estopped from asserting a claim against this his election. It virtually annihilates the relation of mortgagor and mortgagee,by tearing away, from both, the subject matter upon which the relation subsisted. 9 Conn. Rep. 152.
    It will be recollected that the mortgagee, in pursuing the mortgage premises under his action upon , the note, does not merely subject the equity of redemption of the mortgagor to the satisfaction of his debt, but the lands and entire right of the mortgagor therein. The land is taken in execution, appraised, advertised, sold and conveyed, at his instance and by his Order.
    It was the very thing upon which his mortgage had been fastened, and that he has taken, sold and- conveyed, and not the interest of the judgment debtor subject-to the mortgage. This, then, (to reverse the language of the Court in 10 Johns. Rep. 493, or *482,) is a case in which the creditor’s pursuit of his remedy on the mortgage, would work an injury to the purchasers under the previous execution. It is not a case in which the creditor would lose his security,, inasmuch as, under the sale upon his execution on the note, he' sells the very interest he would have sold under the mortgage, either by scire facias or by bill, so far' as the judgment debtor or mortgagor may be concerned. If he be permitted to assert his mortgage, he defeats the sale made under his directions. Far otherwise would be the rule, had he sold the residuum remaining in the mortgagor after the execution of the mortgage. In that event the mortgage interest would have been untouched, except the debt would have been diminished pro tanto, and, against the purchaser, the mortgagor would have had a subrogatory right. To this the mortgagee should not be permitted to except, inasmuch as he had selected his remedy, and accomplished by it the very result he would have accomplished, had he operated directly upon his mortgage. Upon the scire facias remedy, the Court thus reasoned,-in 1 Ohio Rep. 158, and I am unable, if applicable, to see how its force can be broken.
    If the judgment creditor’s rights cannot be disturbed' by the voluntary act of the judgment debtor, can they be disturbed by his voluntary act in surrendering the mortgage land to the mortgagee, after judgment against him and covenant broken? We say not; because he has no power over the subject matter, so far as the rights of the judgment creditor are concerned; nor has the mortgagee, except by foreclosure in chancery. If he take possession by ejectment, it is not absolute, but qualified; it is to apply the profits to extinguish the debt. Severally nor jointly can they, without the aid of the Courts, defeat the judgment creditor’s lien and right to pursue the judgment debtor’s property, held by legal title at the time the judgment lien begins. When the property is pursued and sold on execution, the purchaser holds the title against the judgment debtor from the day of sale; and it is subject to execution and levy as his, after the day of sale, if carried into grant; 10 Ohio Rep. 235; 14 Ohio Rep. 294. He holds as the judgment debtor held, at the time the judgment lien attached, or with the benefit of that lien, so as to cut off or supersede all intermediate rights acquired before the sale, and after the lien began. “The pur- £ chaser at sheriff’s sale acquires all the right, tifie and interest £ in the land, which the debtor had*at the commencement of * the judgment lien; is vested with the rights of the creditor, ‘ entitled to the same relief, and can protect his title against the £ frauds of the judgment debtor in .the same manner, and to the £ same extent that the judgment creditor might have done, had £ he purchased;” 3 Ohio Rep. 530; 5 Ohio Rep. 55; 9 Ohio Rep. 185 ; 10 Ohio Rep. 404; 11 Ohio Rep. 243. The purchaser’s title relates back to the commencement of the judgment lien, so as to defeat and cut down all rights acquired from or against the judgment debtor after the judgment lien attached.
    He does not get a mere lien, but title at law, so as to overreach alienations by the judgment debtor. If the mortgagee desire to overcome this right of the purchaser, he must do it through the agency of a Court of Chancery, and not by private tampering with the mortgagor. His rights are not impaired by the judgment lien; but the mortgagor’s control over the mortgage estate is limited and restrained by it. So long as no intermediate rights intervened, the law permits him to do as he pleases with his own; but, so soon as such rights spring up, to the extent of those rights his power over his lands is struck down, and passes to another.
    But let us view this subject in another aspect. We have already seen, that lands held by legal title, coupled with an interest, are subject to judgment liens, levies and sales. The legal title to mortgage lands, while in the possession of the mortgagor, is in him, and the lands are bound by judgments against him. When the possession has been shifted to the mortgagee before foreclosure, the legal title still exists, and remains in the mortgagor, or passes to the mortgagee, and is bound by judgments against the one or the other. The mortgage is the mere security for the debt, and only a chattel interest; and, until foreclosure by a decree, the mortgagor continues to be the real owner. The mprtgagee has but a qualified possession and interest. He holds, thé better to secure his debt. The mortgagor has something more than a mere chattel. He has a descendible, devisible and alienable estate. Except as against the mortgagee, certainly, while in possession and before foreclosure, he is regarded as the real owner and a freeholder, with the-civil'and political rights belonging to that character. No advantage can be taken of the breach of the condition; and he is not barred, independent of a foreclosure, except where the lapse of time, in analogy to the statute of limitations, works an actual transfer of the title. The' mortgagee may use his mortgage and remedies to enforce payment, but nothing else'. Even after forfeiture and possession taken by the mortgagee, the mortgagor is viewed as the sole owner, and can compel the mortgagee, as his agent, (not trustee,) to account for rents and profits, and relinquish his lien when the end is accomplished. In a word, the-mortgagor is viewed as the sole owner of the mortgage land, as well alter forfeiture as before he executed the mortgage. And the mortgagee has rather a power, than an interest or an estate, which he can use only to collect his debt, oí enforce the duty the mortgage was intended to secure. 13 Conn. Rep. 572.
    There is still anothér view to be taken of this case. The defendant caused the premises in question to be levied upon and sold a.s the property of Huddart. Having done so, and having applied the proceeds to his own use, he is now estopped to deny Huddart had title in the lands sold. In 2 Ohio Rep. 510, the Court held it to be an established principle, that if a person, having a right to an estate, permit or encourage a purchaser to buy of another, the purchaser shall hold it against him. Under this rule the defendant would be concluded. The sale was made at his instance and under his order. The purchaser took the title at his request, to hold for such uses as he then directed, or he took the title at his request, and paid his' money. By no rule of common honesty could he be permitted to thus act, or to draw from a purchaser the fair price of the land sold at 'his instance, and' then take the property from him
      by the assertion of a paramount title or mortgage. Could he, upon tire judgment on his note, have sold but the residuum, subject to his mortgage, then he would not hare subjected the same, but a different interest, and it would not be .unjust for him to proceed. But when he sells the very thing mortgaged under the judgment upon the note, precisely as he would under a proceeding on the mortgage, it is not too much to sáy, he has made his election; he has extinguished his mortgage, and cannot again set it up.
    The case in 9 Cowen’s Rep. 274, bears upon that now under consideration. There the officer was shown property by A, as belonging to B. It was levied upon, and sold as B’s. A afterwards sold it as his, but was held in an action against him to be estopped by his act in showing the property as B’s.
    So, also, does the case in 2 B. Mon. Rep. 256. The Court say: ££ The principle on which the plaintiff’s right of recovery ‘ depends, is this, that the possession of the execution debtor is 1 sufficient evidence of such title in him as authorized the sheriff £ to levy upon and sell the land; and that, although when c possession is the only fact relied on by the purchaser as evi1 dence of such a title in the debtor as was subject to levy and £ sale, the latter may show that he had not such title, but a £ mere equity, he will be deprived of the benefit of this fact, 1 and estopped to deny the title of the purchaser, if it be shown £ that the levy and sale were made with his assent, and espe- £ cially if made under the supposition (as would be presuméd ‘ in the absence of proof) that ho had the legal title.” And the Court further say, if the defendant assent to the sale, or if he direct the sheriff to levy upon the land and sell it, or, being present at the sale, did not unequivocally dissent, or disclose the nature of his title, he is to be regarded as having assentéd to the sale, and as being estopped from denying the title of the ■ purchaser holding the sheriff’s deed. If you place a plaintiff in execution in the like category, common honesty and good faith require that he also should be estopped.

      So in the ease, in 2 J. J. Marsh. Rep. 33, where a mortgagee stood by and heard the title of the mortgagor to the premises sold, represented by the sheriff as valid when offered for sale on execution, and permits a bidder to purchase, concealing his mortgage — and especially if he be plaintiff in the execution — he is guilty of fraud, and the purchaser will be relieved. So, also, when property is sold by the interference or express order of the plaintiff, on execution, to satisfy his debt, he is responsible to the bona fide purchaser, if it shall turn out the property belonged to another.
    So, in 2 A. K. Marsh. Rep. 356,. it is held that a party, who> consents to the revival of a judgment in the name of another as executor, is estopped to deny that he was executor.
    So, where one admits title to be in another, he cannot assert title against his admission, (12 Wend. Rep. 57,) unless he acted under a mistake, (7 Wend. Rep. 401; 2 John. Cases, 353,) and corrects it before his admission has been acted upon. So, if a man take a lease of his own land, he is estopped from setting up his original title; 12 John. Rep. 357; 1 Hild. Dig. 142, §28; 5 Pick. Rep. 127; 2 Dana Rep. 443; 4 Mon. Rep. 400. The rule is the same when he directs the lease to be made to another; 12 John. Rep. 357. So, when one receipts to an an officer for goods, as the property of the defendant in execution, he cannot claim them as his own ; 3 Hill Rep. 215; 9 Cowen Rep. 274; 4 Metcf. Rep. 381. So, if a plaintiff cause an officer to neglect his duty, he shall not complain. 1 Hill Rep. 275. So, when a party confesses a judgment, he is estopped to gainsay it; 9 Paige Rep. 137 ; 10 Ohio Rep. 162. So a deed, fraudulent as to creditors, binds parties and privies; 10 Ohio Rep; 167 ; 7 Ohio Rep. pt. 2, 71. So, when a plaintiff' causes an equity of redemption to be levied upon, and buys, he cannot deny the mortgage; 3 Dana Rep. 349. So, one assigning dower in his own lands, is estopped to say they are not subject to dower; 23 Pick. Rep. 88. The whole of this matter resolves itself into this: if one be silent, where he should speak, afterwards the law will compel Mm to remain silent if he would speak. 3 Hill Rep. 389; 5 Dana Rep. 55.
    If one will cause his own lands to be taken in execution and sold, and title confirmed to the purchaser, and receives the purchase money, he cannot claim title against the purchaser. He is estopped by his own acts. If he sell and convey lands, he will not be permitted to assert title against his deed; 16 John. Rep. 110, 201. Nor will he be permitted to say the lands were not his ; 1 John. Cases, 90. So, when the maker of a note admits it to be good, or is standing by, and permits it to be sold without objection, he is estopped; 19 Wend. Rep. 557; 21 Wend. Rep. 94, 172. So, where one, entitled to the services of another, without objection permits a third person to obtain the same, he is concluded, and cannot assert his right; 6 Wend. Rep. 426. So, where an attorney appears in a 'cause, he cannot deny his authority; 8 Cowen Rep. 253. So a purchaser’s title cannot be disturbed by one who encouraged him to make the purchase. 14 John. Rep. 446.
    In the view of the principle involved in all these cases, which is identical — that is, if one by his instrumentality occasions another to pursue a line of conduct that he otherwise might not have' pursued, he shall not afterwards be permitted to change his original position, so as to affect the rights of the party thus operated upon — it seems to me the law will not. permit a plaintiff in execution to claim land which he has caused to be sold as the lands of the defendant. Risk caused these lands to be taken in execution and sold. If he then claimed title, he should have prohibited the one, and stopped the other. But, having permitted the land to be taken in execution, appraised and sold, and then the sale to be confirmed in Court, every consideration requires he should not be permitted to defeat a title that has thus passed to the purchaser at his instance, and from which he has reaped the fruits of his execution.

      A. N. Riddle, and Corry &f Russell, for Defendant.
    ' The facts natural to the decision, are as follows :
    Plaintiff put in a deed from Thomas Risk, the defendant, to George'Huddart, dated 18th March, 1820, conveying the land in question. (The attestation to this deed is, “ sealed and delivered in the presence of” two witnesses.)
    Also, a transcript of the record of a judgment rendered in the Court of Common Pleas of Hamilton county, on 15th May, 1822, in favor of said Thomas- Risk against said George Huddart, for the sum of $1,356.76, and $11.95 costs.
    Also, that on the 19th June, 1822, execution was issued, and that on the 24th of the same month a levy was made on the growing crops of the said George Huddart, then on the land in question, and that on 6th July, 1822, the sheriff sold the same for $ 14.50, then indorsed nulla bona on the writ, and on the 2d August, 1822, levied on the land in question.
    That, on the 10th September following, the sheriff sold the same to said Samuel Fosdick (lessor of the plaintiff,) for $867; which sale was by the Court at the September term of the same year confirmed, and a deed was ordered.
    Plaintiff also produced a deed purporting to be made by Richard Ayres, sheriff of Hamilton county, in pursuance of said order, to Samuel Fosdick, dated October 20th, 1822, and recorded 15th March, 1826.
    The defendant then proved a mortgage made of said premises by said George Huddart to defendant, dated 18th March, 1820, recorded 12th September, 1821, to secure the payment of $1,300, to be paid in one year as the balance of the purchase money due on Huddart’s purchase from defendant.
    The defendant also proved by his sons, that after the levy had been made on Huddart’s personal property, and before the levy was made on the land, to wit, some time in the month of July, 1822, said George Huddart agreed to give up the land in question to the defendant for the mortgage debt. Huddart accordingly relinquished possession, and the defendant entered immediately — was in possession when the levy was made, and has remained in possession ever'since.
    Plaintiff also proved, that Thomas Risk told Samuel Hartley,1 in 1822, that he had bailed a man who got goods at Mr. Fosdick’s store, and had mortgaged the place to pay him.
    The defendant called Hugh Moore, who proved that shortly after the death of Richard Fosdick he went with defendant to the plaintiff. He . said that he was glad to see defendant ; that he wanted to have it understood how he held the land; that he, Fosdick, had mortgaged it, but that the mortgages were then off or paid;, that there had been a mortgage in 1816 to Richard Fosdick to secure a debt of seven or eight . hundred dollars, and he, Samuel, now held the title to secure the' debt. This witness’ testimony also shows, that Samuel Fosdick paid nothing on the sheriff’s sale.
    There was evidence tending, to show, .that the purchase at the sheriff’s sale was made for the benefit of the defendant, who would not purchase the property in his own name, because he owed several small debts, (since paid off.)
    The jury rendered a verdict for the defendant, under the direction of the Court.
    , Huddart was not in possession of the mortgaged land when the levy was made.
    A mortgaged estate is not liable to execution upon a judgment against the mortgagor when the mortgagee is in possession. Plaintiff’s counsel contend that the mortgagor is the legal owner, although the mortgagee is in possession. We admit that to be so; the mortgagee holds only a pledge at law, as well as in equity, and he holds no more when he is in possession. But the general rule is, that, although the pledgor is the real owner, subject to the debt, the property pledged cannot be taken in execution under a judgment and execution against the pledgor.
    Story on Bailments, s. 353. — “ Goods pawned are not liable ‘ to be taken in execution in an action against the paionor; ‘ at least, not unless the bailment is terminated by payment of ‘ the debt, or by some other extinguishment of the pawnee’s ‘ title.”
    Upon á common law exécution,' the sheriff can only levy upon such property as the debtor may possess, or have a right to possess, and the possession of which can be transferred by the sheriff to a.purchaser. For this reason, property pledged cannot be levied upon, although it may be in the hands of the debtor, for he holds only at the mere will of the pledgee, who has the right to the possession.
    It is true, that this rule has been relaxed so as to allow a levy upon mortgaged lands, when in the possession of the mortgagor. The plaintiff, in the present case, asks for a further relaxation of the rule, so that a levy may be allowed when the land is not in the possession of the debtor, but is held by the morgagee.
    According to Seymour v. King, 11 Ohio Rep. 342, no fair sale can be made upon an execution at common law, upon lands mortgaged, wherefore, it is right to abandon a levy on such lands. The Court say: “ A Court of Equity is the only proper tribunal to adjust the interests of all parties.”
    We submit, that the rule forbidding a levy upon property pledged ought not to be further relaxed. We do not say that the mortgagor has only an equitable interest; we hold that he has, like the pledgor of .chattels, a legal right, and is, both at law and in equity, the real owner. At common law, the pledgee may sell the pledge, when there has been a default in the pledgor. “ Such a right does not divest the general property of the pawnor.” Story on Bailments, sec. 308 ; and see sec. 307..
    A pledgee of chattels may file a bill in chancery against the pawnor, for a foreclosure and sale, (Story on Bailments, sec. 310,) not because the pawnee has no legal right, but because it is equitable and just that he should be prevented from exercising his legal right to redeem, after unreasonable delay.
    A bill to foreclose a mortgage, or pledge, does not assume that the defendant has only an equitable right. The Court act upon the legal right to redeem, and compel its exercise- within a reasonable time.
    All rights which are not the subject of a common law execution, may be reached in chancery; hence, the rights of a pledgor of lands or goods may be there subjected to the payment of such pledgor’s debts.
    When the pledgee is in possession, a common law execution cannot reach the property.
    The deed from Risk to Iiuddart did not pass the title.

    We will assume in the first place, for the sake of argument, that the attestation to a deed need not, under the statutes of this State, show that the deed was signed, &c., but that the attesting witnesses may be called to prove the fact.
    It surely will not be contended that the signature to a deed for the conveyance of land proves itself, unless. the deed be ancient and the possession has been consistent with it.
    If the signature does not prove itself, the next question is, whether it is proved by an attestation, thus: “ sealed and delivered.” We concede, that if the attesting witnesses put their names without specifying the acts done in their presence, it may be assumed that they have adopted the testimonium clause, “In witness whereof, the said (grantor) hath hereunto set his hand and seal the day and year first above written.” The words, “ in the presence of A. B. and C. D.” would be an adoption of this clause, and so would the mere subscription of the names of the witnesses. Not so, however, an attestation specifying what was done, and omitting an essential particular.
    In the present case, the handwriting of the attesting witnesses was proved, but they do not say that the deed was signed. Unless, therefore, the signature proves itself, the due execution of this deed has not been established.
    The defendant is a mortgagee in possession.
    The judgment against Huddart did not prevent him from relinquishing the possession.

      A mortgagor, or pledgor, is entitled to the possession of the property pledged. That being so, if he can obtain the possession peaceably, without judicial proceedings, he has a perfect right so to do.
    This right is recognised by the statute relating to executors and administrators; Swan’s Stat. 350, sec. 67. “ If the mortga- ‘ gee, or assignee, shall not have obtained possession of the c mortgaged premises in his lifetime, his executor or adminis- ‘ trator may take possession thereof, by open and peaceable entry, ‘ or joy action in like manner as the deceased might have done c if living.”
    The mortgagee may give notice to tenants in possession of the mortgaged premises to pay the rents to him.
    A judgment obtained against the mortgagor after the execution of the mortgage, will not deprive the mortgagee of his right thus to obtain the possession.
    The mortgagee has the rights at law and in equity to the possession by title paramount to the lien of the judgment, and having that right, the mortgagor ought to relinquish the possession when it is demanded — he ought hot to resist the. just claim of the mortgagee and compel him to resort to courts of justice to obtain his rights. The judgment lien cannot, in any manner, prejudicially affect the undoubted right of the mortgagee to thé possession of the property pledged. A mortgagor is properly called a tenant at will to the mortgagee, because the latter has the'immediate right to the possession, but when he obtains it he may be called tenant at will to the mortgagor, as the possession may be terminated in an instant by payment of the debt.
    As to the effect of a levy upon and sale of mortgaged lands upon an ordinary judgment against the mortgagor.
    A sale of the mortgaged land upon execution against the mortgagor, cannot affect the mortgagee’s title as pledgee — the purchaser takes subject to the pledge.
    A mortgagee having a note for the debt as well as the pledge, may proceed upon the note like any other creditor of the mortgagor. He may obtain a judgment upon the note and cause the same levy and sale to be made as any other creditor. The amount made, if sufficient to pay the debt, will destroy the pledge — if not sufficient, will reduce the lien pro tanto only.
    The only effect of the proceedings, is to pass the right and title of the defendant in the action.
    “ The mortgage remains an incumbrance on the lands, and may be asserted against the purchaser.” Seymour v. King, 11 Ohio Rep. 342.
    “ The interests of mortgagees are not affectqd.” Per Cur. Canton Bank v. Commercial Bank, 1,0 Ohio Rep. 73.
    The judgment does not supersede the mortgage. The mortgagee may take.a higher security for the mortgage debt, as a recognizance for a simple contract, and this will not discharge the lien of the mortgage. Davis v. Maynard, 9 Mass. R,ep. 247. . ■
    A- judgment may destroy lower remedies, but it cannot de-' prive a man of an interest in lands. Even if a mortgagee, after obtaining judgment for his mortgage debt, proceeds to commitment of the mortgagor in that suit, he may still'have a remedy upon the mortgage. Davis v. Battine, 2 Russ.,& M. 76; and see Cary v. Prentiss ', 7 Mass. Rep. 63.

      Jackson ex dem. Ireland v. Hull, 3 0 Johns. Rep. 481. .“A ‘ creditor who takes a mortgage to secure a debt, by bond or £ otherwise, has three remedies, either of which he is at liberty £ to pursue, and all of which he may pursue, until his debt £ is satisfied; he may bring an action of debt upon the bond, £ or-he may put himself in possession of the rents and profits £ of the land mortgaged by means of an ejectment, or he may £ foreclose the equity of redemption and sell the land to satisfy ‘ the debt.
    ££ If a creditor, having obtained judgment on his bond, issue 1 an execution by which the moi'tgaged premises are taken in 1 execution, and sold to a person who has notice of the mort- £ gage, and of its being unpaid, it will be deemed a sale merely ‘ of the equity of redemption or. interest of the mortgagor, ‘ so that the mortgagee may bring an action of ejectment against ■ ‘ the purchaser to recover the possession.
    “ And the mortgage interest is no further touched by the x sale, than that the purchase money of the equity of redempc tion may go to diminish the amount of the debt.”

    The sheriff’s deed, in the present case, if it passed any thing, (which we deny,) was a conveyance of the land, subject to the mortgage debt. That debt was only partly satisfied with the purchase money, the mortgage debt being $1,360, the purchase money $867.
    The mortgagee being in possession, with a part of the debt unpaid, he cannot be ejected. 15 Wend. 248.
    • It is argued by plaintiff’s counsel, that the sheriff sold and conveyed the titles of both plaintiff and defendant under the authority of the writ authorizing him to sell the estate of the latter. And yet it is conceded, that upon a levy and sale under a judgment obtained by an ordinary creditor, the purchaser gets nothing but the title of the debtor. And that is so, although the land is valued without regard to the mortgage.— See Seymour v. King, 11 Ohio Rep. 342. No reason is given for the suggestion that the mortgagee has not the same rights as any other creditor when he, the mortgagee, obtains judgment on a note for the mortgage money. On this judgment, the plaintiff has a right to pursue ail the debtor’s property as if he, the plaintiff, held no pledge or security for his claim.
    We see no reason for the opinion of plaintiff’s counsel, that “ there is an important distinction in the Ohio; system from all others.” In other States, as well as in this, there are appraisement laws, and the rule also prevails, that the mortgagor is the real owner subject to the debt.
    In those States, as well as in this, the purchaser on execution against the mortgagor takes subject to the mortgage. That is conceded to be so when an ordinary creditor obtains a judgment, levy and sale of the mortgaged property, and we cannot perceive the slightest distinction between such ordinary creditor and a mortgagee suing on a promissory note. ' None has- been pointed out by plaintiff’s counsel.
    If we examine the sheriff’s authority, we shall find that it was not possible for him, in this case, to convey any thing more than the debtor’s interest in the land; and that was subject to the mortgage debt. The mandate of the writ of execution was confined to the debtor’s interest. The writ commanded the sheriff to make the debt of the goods of Huddart; and if they were insufficient, that “ he should cause the same ‘ to be made of the lands and tenements of the said George ‘ Huddart.”

    The sheriff could not convey the right and title of the plaintiff in the action as a pledgee, or lien-holder, under the mortgage.
    Upon an ordinary judgment and execution, the sheriff cannot sell the land discharged from the mortgage debt; he can only put the purchaser in the place of the mortgagor. It is a proceeding altogether dissimilar from a sale upon a scire facias on a mortgage, or upon a decree in a foreclosure suit, and yet plaintiff’s counsel ask the Court to confound it with those proceedings.
    If the purchase money be sufficient to satisfy the debt, the mortgage title may be extinguished, but not otherwise. ■
    Nothing more passed in the present case than would have passed if any other creditor of Huddart had obtained judgment, levied and sold.
    Whether the parties supposed that the sheriff could convey the land so as to make a complete title, free from incumbrance, is immaterial.
    As to the alledged estoppel.
    It has been argued by defendant’s counsel, that where a mortgagee obtains a common judgment, and levies upon the mortgaged lands, and causes the Same to be sold to a bona fide purchaser, such mortgagee cannot be permitted to assert that there was, in fact, no estate or interest capable of being levied upon and sold at common law.

      There are two answers to this argument —
    First: Even if there would be such an estoppel in favor of a bona fide purchaser, believing and acting upon a representation of the mortgagee, that the mortgagor was actually in possession when the levy and sale were made, there- is no such estoppel -in the present case, because no bona fide purchaser has been deceived by any representation. . . .
    There is no ground for saying that plaintiff was deceived in any way by a misrepresentation of a matter of fact not within his own knowledge. •
    To create an estoppel, there must be ££ an admission intended ‘ to influence the conduct of the man with whom the party is ‘ dealing, and actually leading him into a line of conduct which £ must be prejudicial to his interest, unless the party- estopped £ be cut off from the power of' retraction. This I understand £ to be the very definition of an estoppel in pais.” . Per Cowen, J. in Dazell v. Odell, 8 Ilill, 219.

      Jackson v. Waldron, 13 Wend. 178, shows the principle of ah estoppel-. It is -to prevent circuity of action — ££ a party as- £ sorting a fact, and thereby inducing another to contract with £ him, cannot, by a denial of that fact, compel the other party £ to seek redress against his bad faith, by suit.”
    The evidence in the present case shows that there was no false and fraudulent representation made by Risk to Fosdick, whereby the latter .was deceived and defrauded. There-is, therefore, no estoppel.
    Second: Risk did not represent that Huddart was in possession. Fie may have supposed that,- that fact made .no difference. But that supposition cannot affect the case. The facts were well known to all the parties:

    An admission by the party of what the law is; has no effect, and is never noticed ; 2' Phil. Ev. Cowen’s notes, 211; folk’s Lessee v. Robinson, 1 Tenn. Rep. 463. So of the legal effect of his contract; Boston Hat Manufactory y. Messenger, 2 Pick. 223. So where a man voluntarily, and without consideration, agreed in writing to convey land to another, and often admitted that the land belonged to the other, held for nothing, for the right depended on a question of law; Leforce v. Robinson, Litt. sel. cas. 22-3. An estate cannot be defeated, re-leased nor extinguished by a mistake of opinion, or confession of law, or expressions of intentions not to prosecute the right; Craig v. Baker, Hard. Rep. 281, 283, 284, 289. Admissions under a misapprehension of legal right, are unimportant.— Moore v. Hitchcock, 4 Wend. Rep. 292, 298, 299 ; And see Williams v, Champion, 6 Ohio Rep. 169; Bigelow v. Barr, 4 Ohio Rep. 358; Murray v. Palmer, 2 Sch. & Lef. 474; 1 Phil. Ev. 377; Owen v. Bartholomew, 9 Pick. 250.
    Upon the execution of defective deeds, the grantor may suppose they are sufficient to pass the title, but that supposition is of no consequence. A conveyance of land not executed and acknowledged, as required by law, will not pass the legal title, although the grantor afterwards expressly declares that the conveyance shall have that effect.
    The supposition of the parties in the present case, that the sheriff could levy upon mortgaged lands not in the possession of the mortgagor, and that he could thereupon sell and convey the estate of the plaintiff as well as that of the defendant, would not (if such supposition existed,) make the least difference.
    We submit, that the defendant is entitled .to judgment on the verdict in his favor.

         This was the objection taken on the circuit, but, by mistake, the objection was, in the argument in this Court, applied to the sheriffs deed instead of the deed to Huddart.

   Hitchcock, J.

The facts stated in this case show that Risk, the defendant, held a note secured by mortgage, against Huddart, for thirteen hundred dollars. That he commenced suit upon this note, and recovered a judgment. That he took out execution upon this judgment, and caused the same to be levied upon the mortgaged premises, which were sold' to the lessee of the plaintiff; Risk at the time of the levy and sale being in possession of those premises. The question arising upon these facts, is, as to the nature of the title acquired by the purchaser. It is claimed by counsel for defendant, that inasmuch as the money prodúcéd.by.the said was not sufficient to satisfy the entire debt secured by the mortgage, that the lien '.the'’mortgage.still' co'ntmued,-'for; the satisfaction of the residue'of the. debt.- .It. is admitted by'.the opposite counsel, that had this; sale been made, on an.execution in favor of a judgment creditor,- who was not "a" party to the -mortgage, and upon a .judgment-junior thereto,' that .the. purchaser would only have acquired' the equity of redemption! But it is insisted.,' that'as .the judgment was .upon the -identical -note secured by the mortgage, and the execution - levied upon the mortgaged premises, the mortgagee being in-possession;, that the purchaser acquired an indefeasible-title,to’the'premises.- ' ' ■

To support the position assumed by -.the defendant’s counsel, the case of Lessee of Ireland v. Hull, 10 Johns; Rep. 481, is cited. In this case the Supreme Court óf New Y.o.rk decree, that where a creditor, secured by mortgage, brought ■his. aetion for .the debt, so .secured,- recovered judgment and issued execution, which was levied on the' mortgaged premises, and the premises sold, that-the purchaser acquired nothing but the equity of redemption ; the purchaser ;at- the time of purchase having notice of -the mortgage, and that'it was unpaid; It; must be remembered thatj-in-thq State of New. York,.- lands., like,personal chattels,.aré sold without- appraisement; and in the case cited; property.mortgaged to secure- $700, -was sold' for $70. The Court refer to this fact and say, -that it is. manifest that this mode adopted by the creditor in the pursuit of his remedy, did noj work any injury-to the purchaser.'' ...

• In-this. State, however,- -lands' can not- be sold without appraisal,-and. for no less-stim-than two-thirds the appraised value; and this Court have.decided.that .they must; if sold at Jaw, be sold as if unincumbered. Baird v. Kirtland, et. al. 8 Ohio Rep. 21; In Ohio; then, a -purchaser at sheriff ’s, sale' could not acquire even the equity of redemption of mortgaged premise's, 'without, paying the full value, of the land. And it would seem that, when the mortgagee himself, by .his own action, as in the present case, causes the mortgaged premises to be sold, it would be the height of injustice to permit him to pocket the money made by such sale, and still hold on to the premises until he could extort from the purchaser a further sum to relieve the land from his own mortgage. Courts may sometimes be compelled, by some rigid rule of law, to do injustice, but we are not aware that any rule exists which will compel us to do manifest injustice in this case. In truth, should a judgment creditor direct an execution to be levied upon his own land, and should the land be sold in pursuance of such levy, we apprehend the purchaser must be protected. The creditor would be estopped from asserting any claim to the land.

It is further objected by defendant’s counsel, that the sheriff’s deed is defective, inasmuch as it is not properly attested; and it is said the attestation is, “ Sealed and delivered in presence of” the subscribing witnesses; whereas it should have been, “Signed, sealed and delivered.” True, the words of the statute are, that the witnesses shall attest the “ signing and sealing but, really, to require the strictness insisted upon by the defendant’s counsel, would be going a great length; it would be taking one step more towards that point to which we seem to be progressing with railroad speed — the point, of declaring all the land-titles in the State doubtful, defective, or uncertain.

The same technical nicety is not required in the execution and acknowledgment of deeds as in special pleadings. If deeds are executed and acknowledged, substantially, in accordance with the statute, it is all that can be required. The signing and sealing of deeds is usually done at one and,the same time, unless, perchance, the scrivener who writes them shall have attached the seal at the time of writing, and previous to the signature. In such case the sealing is adopted by the signature of him who executes the instrument. It is not customary for a man to sign on one day, and on another to make his scrawl, or attach a wafer. There is not, I presume to say, one case in a thousand in which the same person who witnesses the sealing, does not witness the signature also. And after all, it is the delivery which gives effect to the instrument.

The Court are of opinion that had the attestation been such as defendant’s counsel suppose it to have been, it would have been sufficient. But upon examination of the deed, we find that the attestation is in the proper, the most approved form. It is as follows: “ Signed, sealed and delivered in presence of;” and is subscribed by two witnesses. It is true, that the deed from Bisk to Huddart is merely, “ Sealed and delivered,” and, according to the theory of defendant’s counsel, no title ever vested in Huddart. And if so, Bisk stands in the situation of a man who has caused his own land to be sold on an execution in his own favor, to satisfy his own debt, and would be estopped from setting up hié title against the purchaser. We have no doubt, however, that thé deed was sufficient, and conveyed a good title to Huddart.

A new trial is ordered, the costs to abide the event of the suit.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas Miller and others vs. Margaret Wilson and others.
    A voluntary conveyance by a parent to a child, made in good faith, by way of advancement, will be sustained, although the parent may have been at the time indebted 3 provided the property left, in the parent is clearly and abundantly sufficient to satisfy all subsisting debts.
    To entitle a widow to dower, it, is necessary that her husband should have had a legal estate of inheritance in the premises in which dower is claimed, during the coverture, or that he should have had an equitable interest in the same at the time of his death.
    This . is a suit in Chancery, reserved in the County of Frankrin.
    The bill and amended bill in this case, are filed by Thomas Miller and others, creditors of John Wilson, deceased, against the widow, heir and personal representatives of said Wilson. It is charged that said Wilson, in his lifetime, being involved in debt, with a view' to defraud his creditors caused certain real estate, described in the bill, for which he had paid, or was liable to pay, to be conveyed to his wife and children, and after-wards died greatly insolvent. The prayer of the bill is, that the real estate so fraudulently conveyed may be sold, with the other real estate of the decedent, and that the avails may be appropriated in the discharge of debts, &c.
    In Bank.
    Dec. Term, 1846.
    The allegations of fraud are denied in the answers of Margaret Wilson, the widow, and Ann Wilson, 'the only surviving heir of John Wilson.
    Much testimony has been taken, which it is unnecessary to recapitulate, as a more full statement of the case, and facts of the case, are given in the opinion of the Court.

      J. W. Andrews and P, B. Wilcox, for Complainants.
    Contended,, that the testimony showed 'clearly that, at the time the property in controversy was conveyed to the heirs of John Wilson, he was largely indebted, and therefore the deed was fraudulent as to creditors, even though there was no actual fraudulent intent. They also insisted that the facts of the case warranted the Court in coming to the conclusion that it was the design of Wilson — knowing that he was in embarrassed circumstances — to place a portion of his property beyond the reach of his creditors — to commit actual fraud upon them; and that his retaining possession of the property himself, withholding for years the deed from record — taking, subsequently to the date of the deed to his children, a deed to himself for the same property, and making valuable improvements thereon, were among the badges of fraud which the case presented, and which authorized the interference of a Court of Chancery to set aside the conveyance.
    They referred the Court to the following authorities: 1 Atk. 15; 2 Atk. 600; 3 Johns. Ch. Rep. 481; Wright’s Rep. 213, 214; 5 Ohio Rep. 122; 9 Pet. Rep. 204; 11 Wheat. Rep. 103 ; 2 Leigh’s Rep. 52; 10 Mass. Rep. 462; 12 Johns. Rep. 418; 3 N. H. Rep. 304; 4 Blackf. Rep. 141.

      T. Ewing and Swayne if Bates, for Defendants.
    The whole case, in our view, resolves itself into this : When the conveyance was made to his children, Wilson was in easy circumstances. He had, in any fair view of the testimony, a large excess of means over his liabilities, exclusive of the property in question. Under these ■ circumstances he made an advancement to his two children of property worth, according to the complainant’s proof, $2,000, or at most not exceeding $2,500. Some years afterwards he became involved, embarrassed and insolvent, and while in that condition died.
    Does the after insolvency affect the prior advancement? What does the law say on this subject?
    “ Where a parent makes an advancement to a child, and ‘ honestly and fairly retains in his hands sufficient property to ‘ pay all his debts, such child will not be bound to refund such c advancement for the benefit of creditors, although it should ‘ happen that the parent does not pay his debts which existed ‘at the time of making such advancement.” Van Wickv. Seward, 6 Paige, 62.
    “I presume it cannot be seriously urged that where a parent ‘ makes an advancement to his child, honestly and fairly re- ‘ taining in his own hands, at the same time, property suffi- ‘ cient to pay all his debts, such child will be bound to refund ‘the advancement for the benefit'of creditors, if it afterwards ‘ happens that the parent, either by misfortune or fraud, does ‘ not actually pay all his debts which existed at the time of the ‘ advancement.” Same case, 6 Paige, 67.
    “ To impeach a settlement made after marriage, the husband ‘ must be proved to have been indebted at the time, to the ‘ extent of insolvency.” Lusk v. Wilkinson, 5 Vesoy, 384; Sugden on Vendors, top paging, 447.
    This doctrine was also recognized in a late law case in Westminster Hall. Sears v. Rodgers, 3 Barn. & Adolp, 362.
    “The Judge was also right in deciding that the deed from ‘ T. Merrick to C. Merrick, was not void in law, as made in £ fraud of creditors; because, although the grantor was indebt- £ ed, there was property enough left to pay her debts.” Jackson v. Post, 15 Wend. 593. See, also, Hends. Lessee v. Jjongworth, 11 Wheat. 199.
    “ A voluntary gift of a solvent parent to his child, is good against existing creditors.” Howard v. Williams, 1 Baily, 575.
    “ A voluntary conveyance in consideration of natural love £ and affection to grantor’s daughter, leaving amply sufficient £ to meet all his debts, is valid against a subsequent mortgage £ to secure a previous debt; and if valid at the time of its £ execution, it is not rendered fraudulent by subsequent embarrassments of the grantor.” Brackets. Weight, 4 Verm. Rep. 389.
    “ Strictly speaking, there is no such thing as fraud in law. Fraud or no fraud, is, and ever must be, a fact.” Spencer’s opinion ; Jackson v. Seward, 8 Cowen 435.
    This fact must be proved like any other. Ibid. S. P. Jackson v. Peek, 4 Wend. 305. S. P, Jackson v. Zimmerman, 7 Wend. 436.
    “ There is nothing to impeach this transaction but the simple £ circumstance that the grantor remained in possession after £ the deed was given. In relation to real estate, that is not £ even a badge of fraud.” Every v. Edgerton, 7 Wend. 263.
    Reception of profits and possession by the lather during the infancy of his children, does not repel the presumption of advancement, nor tend to raise a trust in favor of the father; nor does the making of repairs during the same period. Sugden on Vendors, top paging, 445.
    If the children reside with the parent, it repels, any presumption arising from his receiving the income' of the property. Stileman v. Ashdown, 2 Atk. 480; 2 Swanst. 600.'
    If the conveyance should be set aside', we claim that the widow is entitled to dower in the property in controversy. This point was contested by the complainant’s .counsel in the argument in the Supreme Court. We have since' understood from him that he abandons the position then taken. We shall therefore merely cite authorities on this point, relied upon by without further argument or comment: Coke Litt. 35 a.; 1 Pick. 191; 1 Co wen 89; 3 Mete. 42, 43; 1 Hill. Ab. 79.
   Hitchcock, J.

This bill and amended bill are filed by complainants, as creditors of John Wilson, of Columbus, late dedeased, to set aside conveyances of certain parcels of land, and to have the lands sold and the avails applied towards the payment of 'debts due from the estate of said Wilson. The particular lands in controversy are in-lots 440 and 493, in Columbus. It is, perhaps, improper to say, that there is any controversy with respect to this latter lot. The facts relative to it are, that it was purchased by Wilson in 1838, and by his direction conveyed to his wife. She does not, however, pretend to claim it, and if she did, the claim could not be sustained, as at the time of the purchase and conveyance, Wilson was hopelessly insolvent.

It is claimed, however, that lot number 440 was never the property of Wilson ; that it was, by his direction, conveyed by the former owner to his two children, Thomas and Ann;' that it was intended by him as an advancement, and that the son, after his arrival at full age, conveyed his undivided half of the property to his mother, the defendant Margaret.

The leading facts, as to this property, are the following:

John Wilson, the decedent, some time before 1819, removed from Pennsylvania to Ohio, and took up his residence at or near Chillicothe. He was a man of small means, and was a tanner by trade. His father, whose name was Thomas, was a resident of the State of Pennsylvania, and had little or no property. Thomas Wilson had two brothers, Charles and John. John resided in Baltimore, and became wealthy. About the year 1819 he died, leaving his brothers' CharleS and Thomas his heirs. The amount of the estate of this John Wilson, of Baltimore, is not accurately ascertained. After his death, an arrangement was made between John Wilson, of Ohio, and his father, Thomas, by which John was to administer on the estate of his deceased uncle, and was to have, in consideration thereof, the one equal half of his father’s share in that uncle’s estate. In pursuance of this arrangement, John proceeded to Baltimore, and, in connection with one Sterritt, took letters of administration on his uncle’s estate. At this time he was somewhat, although not very deeply involved. John T. Barr, of Baltimore, a man of wealth, and an old schoolmate and friend of John, was instrumental in procuring for him letters of administration, and was one of his securities — it being the understahding that Sterritt and Barr were to have the principal control in the settlement of the estate. ' .

This John T. Barr was the owner of a farm in the neighborhood of Columbus, containing two hundred and seventy-five acres of land, and also of several lots in the town of Columbus. During the time that -Wilson was in Baltimore, an arrangement was made between him and Barr, by which Barr agreed to sell to him this property at and near Columbus, and to receive compensation, as is supposed, from the estate of the deceased John Wilson, of Baltimore. A part of this property ivas the lot number 440, now in controversy, upon which there was at the time a dwelling house and some other improvements.

John Wilson returned to Ohio and took up his residence at Columbus, occupying the house upon lot 440, and continued in possession until his death, in 1841. While in Columbus, he owned a tannery and carried on the business of tanning.

The estate of the uncle was not finally settled until April, 1829. In that month John Wilson, the decedent, was in Baltimore, for the purpose of making settlement. On the 27th day of the same month, he had a settlement with Barr, and gave him a note for $ 1,952.99, and procured Barr to make a deed to his two children, Thomas and Ann Wilson, for in-lot 440. At this time his son Thomas was eleven, and his daughter Ann five years of age.

The question arises, as to this deed, whether it was made in good faith, as an advancement to thése children, or whether the °9ject was to defraud creditors. It is claimed by the complainants, that a voluntary conveyanee, for the consideration of natural love and affection, cannot 'be sustained, if, at the time, the grantor is-involved in debt. Decisions to this'effect have unquestionably been made in England, and prpbabiy such is the law in that country ; And such seems'to have-been the- decision of Chancellor Kent, in a case decided by him in the State of New York; 3 Johns. Ch. Rep. 481. We do not, however, conceive this to be the correct rule, as generally established in this country: A man may make ah advancement to his child, although-'at the time in debt, provided he has sufficient property remaining to satisfy such subsisting debts'. And if- the advancement is made under such circumstances, it cannot be impeached by subsequent creditors, merely bécause it is voluntary. A person claiming under such advancement, must be prepared, however, clearly aind conclusively to show that^there was other property sufficient to pay all subsisting debts.

• Testimony has been taken in this case, to show the extent of the indebtedness, of' John Wilson in April;..1829, and also as to the value of his property. This'evidence is' not very satisfac-. tory. It,is admitted-,.that he-was indebted-as .trustee .to his father’s éstate, and which is one of the claims'attempted to be , set up in this, bill, in the sum-of $1,805.14, and to John .T. Barr‘in the sum of $1,952.99, making in the whole $3,758.13. It is_ claimed by the complainants, that.there were , other debts which Would'swell the amount to'nearly $7,000.- These' were all eastern .'debts.. There is no evidence as' to any other.

The witnesses differ much as to the value of -his property. It-,consisted of 'the property'purchased of Barr, and-of a tannery, ‘with tire stock -therein.' In estimating the entire value, witnesses wary from 'seven or eight to'twfelve or fifteenthousand dollars. This'is including the lot in controversy, . Exclusive-of that lot, it is at least doubtful whether the other property would have been'sufficient,' under a forced'-sale,-to have1 paid all'the .debts. ‘ We are not prepared,1 however,, to 'say absolutely, that it would not have been sufficient.

But, although ah advancement may be made as before stated,, which,-if' doné in' good faith, cannot be impeached by.-subsé-'" quent .creditors, yet if;.in taking all. the ’circumstances into'con-. ,- sideration/tlie mirid "is-brought to-the cohculsiori -that there was 'a fraudulent design, .’either as to subsisting orsubseqnent. credi-tors, such advancement cannot be sustained.

The evidence in this case shows, 'that' upon á settlement with the Orphan’s Court,- ¿s'trusted .of- his father’s "estate,'which was made in April, 1829, Wilson was.1 fourid in debt $.1-,805.14. On the 27th . day of the samé'month', .he-settled with the Probate Court in Baltimore, and was found in debtand on the same -day, upon settlement, he was. found indéhted to Barr $1,952*99. In ten years'from the time-of undertaking to administer upon his.Uncle’s, estate, from which wealth was expected", he.fóúhd himself indebted to the amount of more1 than $'3,'700, to say nothing of further- indebtedness. And oh -this '.day he received from Barr the deed conveying to his two young children lot number 440. . But .this .deed, -although.'delivered by Barr, to Wilson,' w.as ,not,'by-him, handed-over to the children, -nor was it immediately -placed' upon record. He retained it in his .own .possession, and, continued in possession of the lot.. In .1834, this deed, to the children-still reihiaining unrecorded, he re'ceived.a-de.ed-froih-,Barr,'..conveying .to him, together-.-'with. other' pfd'perty; this' identical'lot. This deed, it' is true, so far 'as' . this lot. is concerned, -was .inoperative. • At' length, -in January, 1835, he ..placed the; deed to .the children upon record, and the next ensuing year put improvements upon the lot to the value of more than three thousand dollars. -.

Under these circumstances^ we cannot but conclude .that .Wilson, finding himself thus in debt, in 1829, when he had expected to be wealthy, became 'apprehensive of eventual failure'; and. for the purpose of -sécuring to himself -and .wife a home, as expressed, to one or more of'thV’witnesses, procured the conveyance to be made as it was. But, still hoping to extricate himself from embarrassment, he kept the deed from record until 1835, when it was delivered and recorded; and from this time he spared no expense to render this house comfortable and convenient.

That his apprehensions were not without foundation, is manifest from the fact that, although during his life his credit was good, yet, at his death, he was found to be involved to the amount of more than eighteen thousand dollars.

But it is contended by the counsel for the defendant, Margaret, that if in the opinion of the Court this deed was fraudulent as to creditors, still that she is entitled to dower in the premises. The act relating to dower (Swan’s Stat. 296,) provides : that the widow shall be endowed “ of one full and equal third £ part of all the lands, tenements and real estate of which her £ husband was seized during the coverture,” and also of ££ one £ third part of all the right, title or interest that her husband, £ at the time of his decease, had in any lands or tenements £ hold by bond, article, lease or other evidence of claim.” In other words, she shall be endowed of one-third of the legal estate of inheritance of which the husband was seized during the coverture, and of one-third of any equitable interests he may have in lands at the time of his death.

That Wilson had an equitable interest in this lot. previous to 1829, there can be no doubt. He was in possession under a purchase from Barr. But, in 1829, he procured it to be conveyed to his children. Now this deed, although fraudulent and void as to credito-s, was good as to Wilson. He could not controvert it. ’ So far as he was concerned, and so far as his wife was concerned, it vested a legal estate of inheritance in the children. Wilson, then, had not, any time during his life, a legal estate of inheritance in this lot. Had he any equitable interest in it at the time of his death ? We think not. As to him, both the legal and the equitable interest was vested in the children, by the deed of 1829.

A number of authorities have been cited, which are claimed to be inconsistent with this opinion. Of these authorities, the case of Robinson v. Bates (3 Metcalf’s Rep. 40,) is the only one which has a direct bearing upon the case under consideration. In that case, Robinson and wife joined in a deed conveying certain lands, she releasing her right of dower. Subsequently, a creditor of Robinson, having obtained judgment and levied upon the land, recovered the same, thereby avoiding the deed, on the ground that it was fraudulent as to creditors. After the death of Robinson, his widow prosecuted her suit for dower. The tenant attempted a defence, on the ground that she had, by the deed before referred to, released her right of dower. But the defence was not allowed, the court holding that the tenant having avoided the deed for fraud, should not afterwards be permitted to set it up as a bar to the widow’s right of dower. The substance of the decision is, that if husband and wife unite in the conveyance of his land for the purpose of defrauding creditors, and the deed is avoided for the fraud, the wife is not thereby barred of her dower.

The case differs from the one now before the Court in this: Robinson had, during the coverture, a legal estate of inheritance in the land then in controversy, whereas Wilson,had not, during the coverture, such legal estate in the land nou> in controversy. Without such legal estate, his widow cannot be endowed, unless, at the time of his death, he had an equitable interest. To the Court, it seems clear that he had no such interest.

Decree for Complainants


author: Wood, C. J. Read, J.,

text:
    In Bank.
    Dec. Term, 1846.
    Augustus W. Swetland and Fuller M. Swetland vs. David M. Creigh and others.
    A promissory note for $200, payable in current.Ohio banlc notes; is for, a surtí of money certain, and'negotiable.
    V ' This suit is by, a Writ of Error to the Court of- Coifimon Pleas' of Kúox-County, and reserved for decision in this Court.
    ' • The plaintiffs 'in-error were the. makers of a certain written .instrument, the, foundation of the original action, which is in the words and -figures following:. ' ' . . "
    “ Spart’a," Sept. 1st, 1841.
    ■ - “We promise to pay L. H. Newcomb, or order, two hundred dollars in current Ohio bank notes,■ two years after'date, for value received.-
    “A. W.. SWETLAND,
    “-F. M.S WETLAND.”'
    ■And indorsed on.its back, “ L. IT. Newcomb.”
    On this instrument, the defendants in error, • the indorsees, brought their action of assumpsit against .the- plaintiffs in error. The declaration contains a. special count/ founded on the; indorsement, and, also, the common counts for monéy. lent, had and received, and on an account, stated between the parties. .
    The plaintiffs in error demurred Specially to the first, and plead the general issue of non-assumpsit to the other counts.
    . The causes assigned for the demurrer, are, that the instrument declared on is not.a promissory note; that it is not negotiable, and that no consideration is averred for the indorsement. The defendants in error' joined in demurrer, and this issue of law being submitted to the Court, the demurrer w.as overruled.
    The issue of fact, as well as the assessment of damages on the first count in the declaration, then beirig submitted to the Court, the instrument before described was offered in evidence by the defendants in error, in support of the common counts. To this proof the plaintiffs in error- objected, but the Court admitted the instrument, and gave judgment for the'defen dan in error, .no other evidence being: adduced; and. the- plaintiffs-in error excepted to the ruling and. judgment of the ..Coiirt. '
    Several errors-are assigned upon the record which need.nót be noticed,-.-They . are not, apparently;'relied, upon -by the-counsel for the. plaintiffs in error, as; they are n.ot- alluded ,-to in their argument. ■ The-fifth- assignment is, that the instrument declared upon.and admitted in evidence-is not sUch an one as authorized the assignees to sue .in their own name,.;.-

      Vance ‘ fy.- Smith, for Plaintiffs i,n error.
    •To constitute a promissory nóte;' it is necessary the' instrument^-should', be- made payable'.'in,, a sum of money certain.-— Chifty bn Bills, 55'; Swan’s Slat. 587. .
    , Is a note; madé payable in current bank-notes, for a sum certain any more than though payable'in'flour or pork?- .We can see no distinction, in principié. Bank notes are not mone'y, nor do they necessarily-import' a certain sum in money; for;, though current, they are often below par.
    We are aware that a devise .of all one’s money has been held to include bank notes, but this is but carrying out the intention-of the .devisor. 1 Roper, 3.
    In England, it .has been decided that an action for money had and received; will not lie against- the finder of bank notes, unless he has actually ’ converted them into money. Chitty on Bills, 556, and cases there cited.
    But the precise question now before the Court, has been decided in- the. .Courts of several of the States;'and such paper held' riot to be negotiable,', and. for the re.ason that,' being made payable in .bank notes, they were not for a sum of money certain. Jones v. Fales, 4- Mass. Rep-245; Leiber v. Goodrich, 5 -Cowen.Rep, 186 ; Large v. Káhn, 1 McCord’s Rep. 115 ; McClarren v. Nesbit, 2 Nott &, McCord’s Rep. 519; Collins v. Lincoln; 11 Vir. Rep. 268; Irvino v; Lowry, 14 'Peters’ Rep, 293. t •' .

      T. W. Bartley and Franklin Barker, for Defendants in error.
    The question for the consideration of the Court, is, whether the note declared on by the plaintiffs in the Court below, which is payable in the sum of two hundred dollars, in current Ohio bank notes, to S. H. Newcomb or order, is a negotiable instrument Í

    The statute making certain instruments negotiable, requires, it is true, that./ to make them so, 'they must be drawn for a “sum, or for sums of money certain.”
    The law on this subject has been settled by decisions of the highest authority, and it is .not presumed that this Court will introduce uncertainty in the law by overruling them. The case of Morris v. Edwards, 1 Ohio Rep. 189, settles the question, that a contract payable in current bank notes is a contract ipayable in money,, in the ordinary transactions of business.
    This decision is sustained by the decision of Lord Mansfield, 1 Burr. 457; also, by Keith v. Jones, 9 Johns. Rep. 120, and Judah v. Homes, 19 Johns. Rep. 144.
   Wood, C. J.

The consideration of the fifth assignment of error involves the whole inquiry necessary to be made, in order to determine whether any error intervened in the overruling the demurrer, admitting the instrument in evidence in support of the common counts, and the judgment which followed.

In other words, and to be more precise, is the instrument in question a negotiable promissory note ? If it is, the action is well brought in the name of the indorsees; the declaration is in all respects sufficient, and the ruling and judgment of the Court of Common Pleas is without legal fault, and should be sustained by this Court.

The negotiability of paper is a subject within the province of legislation, and the statute of this State has made all bonds, promissory notes, &c., drawn for any sum or sums of money certain, and payable to any person or order, or any person or bearer, &c., negotiable by indorsement thereon. This instrument is clearly within both the letter and spirit of the statute, if it is payable in a sum of money certain. The counsel for the plaintiff in error, however, claim that two hundred dollars in current Ohio bank notes, is not two hundred dollars in money certain; because bank notes are not money, but promises for money. Tliey are not a legal tender, it is true; they are neither silver nor gold: but current bank notes are the representatives of both. By the business community they are considered as cash in hand by those who have them in possession. Ask A for a loan of $1,000 — he counts it to you in bank paper. If you promise to pay $1,000 in money, you count it to your creditor in bank paper. The sense and understanding of business and moneyed mien, is that, for ordinary purposes at least, it is money or cash. By a devise of all his money, the bank notes in the testator’s safe pass to the legatee ; 1 Roper, p. 3. The Supreme Court of this State have, on the circuit, repeatedly held that a note payable in current bank notes', was payable in money, and negotiable; Morris v. Edwards, 1 Ohio C. Rep. 85. The same rule has been laid down by the Supreme Court of New York; 9 J. Rep. 120; 19 J. Rep. 144. And in Pennsylvania it has been decided, that a note payable in foreign bank notes is not negotiable; while one payable in the notes of that State would be, if current, within the rule-A different course of decision has prevailed in some of the States, and in England, but the authority of our own Court for many years should not be departed from when no evil is seen to grow out of its adjudications on this subject.

Judgment Affirmed.

Read, J.,

dissenting. It is admitted that the Legislature might convert equitable into a legal right, and in all cases permit the assignee of a chose in action to maintain a suit at law in his own name. But this has not been done. Both under our own statute and the Law Merchant, a note or bill to becoiné negotiable, so ás ’ to clothe the assignee with the legal ’ right-in such-' note, must be payable in money. This is not disputed. The. only question, is, are current Ohio bank notes money.i-. Tiié ■ instrument. on. which this'suit 'is-brought,-is made payáble in current Ohio bank notes. .A majority of the Court hold -that- such an- ihstruqient is a negotiable note, paya-, ble in money under the statute —that'current Ohio bank notes aré money.. •..-'-This is a' most extraordinary conclusion. Bank notes, are -not-.money'. -They, do not' purport to be money. They arp only .promises' to pay money on' demand. • They, in law; are never-treated as money- — they are -not a legal tender. The whole legislation of'- the State 'respecting ' bank bills or hotés, treats 'them as such, and not as money. ■ In the criminal .laws punishing, the stealing of Counterfeiting of. such paper, and in the civil-’■ remedies prescribed where banks and bankers are. parties,' bank bilis Or' notes áre not treated .as money, but as evidence' of indebtedness.— precisely what they claim to • be themselves. ■ I .¿m aware ' that decisions . afe. to .be found where- such instruments have been bold, negotiable, but the-weight of authority ;is. the other way-, ■ as well ■ as the most manifest reason-.' It is .true,: that bank bills pro sometimes treated, as-money-; as' where-they have been accepted in payment of a debt, pr where they have been dernised'. as money, and such was . the intent of the testator.. -This results from the act, .or agreement'Of the parties themselves.-. . It is not' even necessary, to effect that end',, that‘bank notes are'do "be held money; because any article, received in satisfaction of a' debt, is suffi- ' .cient in law to.discharge it,.and the intention of 'a testator will govern ip a will. ... •

.. * Current bank notes.’, does not signify a sum of. money certain. The terms current and bankable, are well understood., ' Paper is regarded as current which will circulate in. the ordinary trans- . action of .business, and may vary 5, 1.0, ,15 ' pr, 20 per cent., according to the: folly or good nature of the community. In this sense, thén, this instrument is not negotiable. But the .great error is in , giving countenance to the idea that bank notes are money. No man can affirm that á bank note is money, It is too clear for argument. Nor can mére usage be permitted to take the place of the statute. '


author: Wood, C. J.

text:
    Chauncey Taft vs. Eden Wildman.
    It is not error for the Court to omit to instruct the jury on a point of law arising in the case, unless instructions are asked by counsel.
    To rescind the contract and recover back the consideration, a thing , received'in payment of no value need not be returned to the defendant.
    If A sell land to B, to receive payment in cash and certificates of discharge from the army, assigned to A, he may sue for the original consideration quo ad hoc those certificates.
    This case is brought here by a Writ of Error to the Supreme Court for the County of Trumbull.
    From the record it appears that the defendant in error, Wildman, brought an action of assumpsit against Taft, the plaintiff in error, and declared for land sold , and conveyed. The declaration contains one common and two special counts, and to which the plaintiff in error plead the general issue of non-assumpsit. The-case was tried in the Supreme Court for Trumbull county at the August term, 1844, by a jury, and a verdict and judgment rendered for the defendant in error. This judgment is sought to be reversed by the prosecution of this writ of error.
    From a bill of exceptions which was taken during the trial, it appears that the defendant in error gave evidence to prove that, at the time stated in the declaration, he conveyed' the land described therein, to the plaintiff in error. That the price agreed upon between the parties was eight hundred dollarsj, and he received, in payment therefor, four hundred dollars, and two certificates of honorable discharge from the army of the

      United States, at the close of the late war with Great Britain, given to soldiers therein, which were estimated by the parties at $200 each; and which certificates were, at the time of the trade, assigned to the defendant in, error. The defendant in error gave evidence tending to prove that, at the time said certificates were assigned to him, the plaintiff in error had warranted them. The defendant also gave evidence as to the value of the land sold, and likewise evidence tending to prove that both the parties supposed the certificates of honorable discharge would entitle the holder to certain quantities of land.
    In Bank.

      Dec. Term, 1846

    The plaintiff in error then gave evidence tending to prove that at the time said certificates were taken by the defendant in error, it was agreed between the parties the defendant in error should take them at his own risk. He also gave evidence as to the value of the land purchased by him. There was no proof of fraud in the transaction, nor that the defendant in error had ever offered to rescind the contract, except by demanding payment of the plaintiff in error, and to which he replied he would see the defendant in error the next day.
    The Court then charged the jury that if these certificates were supposed by the parties at the time they were assigned, to convey lands or to transfer a right to obtain lands, that the defendant in error was entitled to recover, inasmuch as the assignment of the certificates was made void by the laws of the United States, and vested no interest in him ; and the rule of damages in that event would be $400, the amount at which the certificates were estimated by the parties, with the interest thereon; but if the certificates were received by the defendant in error under an agreement that he should take them at his own risk, whether they were of value or not, he was not entitled to recover. To this charge of the Court the plaintiff in error excepted, and has assigned the same for error, and by reason thereof now seeks to recover the judgment.

      Tod, Hoffman &f Hutchins, and Wade 8f Ranney, for Plaintiff in error.
    First: All the parts of the contract between these parties go to make up an entire contract; and, in making it, each party relied upon, and was influenced by each and every part of it. And we can well imagine that one great inducement with the plaintiff in purchasing the land, was, that he could pay, in part, with his certificates. But for this, he would not have purchased the land at so high a nominal price, if, indeed, he would have purchased at all. Being a contract of this description, the defendant cannot recover without first having offered to rescind it, return the certificate, and thus place the parties in statu quo. Coolidge v. Bingham, 1 Met. Rep. 547; 2 Kent’s Com. (3d ed.) 479, 480; Kimball v. Cunningham, 4 Mass. Rep. 502; Conner v. Henderson, 15 Ibid. 322; Perly v. Batch, 23 Pick. Rep. 283, 6; Hunt v. Silk, 5 East Rep. 449; Alexander v. Owen, 1 Term Rep. 225.
    Second: But, if it is permitted to the defendant, at his own option, to rescind the contract or not, as he may please, either in whole or in part, surely the plaintiff should be allowed the poor privilege of proving the value of the land, and establishing a correct rule of damages. If the land was worth $800, the plaintiff should pay $400, with the interest; but if the sum named, $800, was a mere nominal sum, he should not be estopped from proving what it was actually worth, otherwise gross and manifest injustice will be done him. Spencer v. Tilden, 5 Cowen’s Rep. 144; Sherman v. Comstock, 21 Wend. Rep. 457 ; Gleason v. Finney, 5 Cowen’s Rep. 152.
    Third: The certificates having been assigned in good faith, and proving worthless, the loss should, be borne by Wildman, else there is no mutuality in the agreement. Suppose the certificates had proved to have, been worth more than $400, and neither knew but they were actually worth more, could Taft have sued Wildman for the excess ? Certainly not; and why ? Because he had agreed Wildman should have them, no matter what their value. Shall not Wildman, then, be compelled to keep them, regardless of their value ? It seems to us, that in no other way can exact justice be done between the parties. Bayard v. Shank, 1 Watt & Serg. Rep. 92; Ellis v. Weld, 6 Mass. Rep. 321; Alexander v. Owen, 1 Term Rep. 225 Whitbeck v. Wanness, 11 Johns. Rep. 409; Bread v. Good, 15 Ibid. 241; 17 Mass. Rep. 33; Story on Con. 68; Z7„ &. Bank v. Bank of Georgia, 10 Wheat. Rep. 333.'

      S. W. Harris and I. J). Taylor, for Defendant in error.
    First: The certificates of ‘‘honorable discharge” to the two soldiers were valueless, unless as evidence for the soldiers themselves, to procure lands from the government. They were called “ soldiers’ rights ” by the parties, who, in their ignorance of their value, supposed they would authorize the holders to draw military bounty lands from the General Government.— Any assignment of a soldier’s right to military bounty land, was, by act of Congress, rendered void both at law and in equity.
    The attempt of Taft to assign these “ soldiers’ rights ” was a void act; “ void things are no things.” It was no payment of the $400.
    Second: The authorities fully establish the following positions :
    1. A payment in a counterfeit bill, supposed by the parties at the time to be genuine, is no payment.
    2. It is the same as to payment in the bill of a broken bank, supposed by the parties to be solvent.
    3. Payment for goods, or, of a pre-existing debt; in the note of a third person, who proves to be insolvent, is no payment, unless it be made affirmatively to appear that there is “ a ‘ clear and special agreement that the vendor shall take the: ‘ paper absolutely as payment.”

      These cases are not precisely the same, in point of fact, with that at bar, but the principle governing them is, we apprehend, precisely the same., ■ ■
    Wildman parted with his property “ without receiving the compensation which was intended.” He “ received, by mistake, a thing in payment different from what was due.” It being “of no value, the creditor might consider it as waste, paper, and resort to his original demand.” “ It is a maxim of ‘ the law, that the loss is to him who was the owner at the time ‘ such loss happened, if both parties were ignorant of the loss ‘ at the time of making their contract.” “ When a man pays ‘ a debt, the medium of payment must turn out to be what he ‘ represented it to be at the time of payment.” Markle v. Hatfield, 2 Johns. Rep. 455 ; Johnson v. Weed, 9 Johns. Rep. 309; Ontario Bank v. Lighthody, 13 Wend. Rep. 101; also, Vanshaick, Senator, in same case; JDarst v. Brockway, 11 Ohio Rep. 471.
    Third: The common count, for land sold, is sufficient to maintain the action. 1 Chitty’s Pleading, 338.
    Fourth: It was not such a special exchange of property, as that the plaintiff below was bound to declare upon it specially as such. Porter v. Talcott, 1 Cowen, 359, is a thorough examination of the authorities on this point, and fully sustains our position.
    Fifth: The plaintiff below was not bound to, nay, he could not rescind the contract. The land was deeded, and possession given, to Taft; personal property had been roceived and appropriated by Wildman. No contract is to be rescinded, except the parties can be placed in statu quo. When possession has accompanied the contract, the parties cannot be placed in statu quo. Hunt v. Silk, 5 East’s Rep. 449; Caswell v. Black Biver Manufacturing Company, 14 Johns. Rep. 453.
    The question made by the plaintiff in error is, in substance, this: The vendor having conveyed, the vendee, by mistake, failing to pay as he undertook to do, the vendor is bound to demand a rescission of the contract; that cannot be law.

      Sixth: The rule of damages, as held on the circuit, was right. The parties themselves had fixed the price of the land, and neither Court or jury had authority to make a new contract for them.
   Wood, C. J.

The question submitted for our consideration in this case, is, did the Supreme Court err in the instructions given to the jury ?

The counsel for the plaintiff in error have submitted an argument close, logical and able. It does much credit to their ingenuity, but we are, nevertheless, unable to adopt their views, as applicable to this case. They claim the action is founded upon a supposed rescission of the contract, as to a part of the consideration, the certificates of discharge, without rescinding the agreement in toto, by tendering back the money received, and the certificates of discharge, and demanding a reconveyance of the land, when the contract formed, it is said, but a single transaction, and is entire. No principle is better settled than that a party who would rescind an agreement, must place his adversary in statu quo. If he have received any thing of value, he must offer to restore it or he will not be permitted, by rescinding his agreement, to recover for what he has advanced by reason thereof. The charge of the Court was not inconsistent with any principle here laid down. It does not appear from the record, these honorable discharges were of any intrinsic value whatever; certainly not, in the hands of the purchaser, because, by the laws of the United States, the assignment was absolutely void. Neither does it appear from the record, that they were of value in the hands of the seller, for it is not shown, that the period of his enlistment or his term of service in the army of the United States entitled him to any bounty in land from the government. Under such circumstances, their return was of no importance to the rescission of the agreement. Neither the necessity of a return of those certificates, however, nor of the money received, to enable the defendant in error to recover on the trial, appears to have been made a point in the defence. The bill of exceptions does not show that any instructions were asked of the Court, and it is, therefore, no error that they did not charge the jury on that point, nor would it have been had no charge at all been given to the jury.

But there is nothing in the record to show that there was any claim to have this agreement rescinded by the defendant in error. On the other hand, he counts upon it specially in his declaration, and relies for a recovery on the breach of it by the plaintiff in error, in not delivering two certificates, which would entitle the defendant in error to the contemplated land, and for this failure in making part payment for the land conveyed, damages are sought. This is, in fact, the whole case : If A. convey land to B. and agree to receive payment in cash and other specified property, and the cash only is paid, cannot the vendor sue for the value of the property without returning the cash and demanding back the land? We think he can, and there is nothing more sought or charged by the Court in the case at bar. The' jury have found that these parties acted in the sale and transfer of these certificates, under a mutual mistake.

The law is: If C. receive of D. a thing represented to be valuable, and which C. supposes is so, in payment of a debt, but which is in fact of no value, C. may sue on the original demand for the consideration, as if no payment had been made, and quo ad hoc, treat the thing received as no payment. This transaction was not a barter, however, or exchange of property, as presented in the record, but the sale of a farm, to be paid in cash, and certificates which would entitle the vendor to other lands, and as this part of the consideration failed, the the court did not err, in our opinion, in saying a recovery might be had under the limitations and restrictions set out in the bill of exceptions.

But it is said the Court erred in the rule of damages given to the jury; that the true rule would be, the value of the property sold. The law, however, permits parties, in their agreements, to fix their own terms, conditions and prices: and as they had estimated the certificates at $400, the Court did not err, we think, in holding that amount, with the interest thereon from the time of their delivery, to be the rule of damages.

We are, therefore, of the opinion the judgment' should be affirmed, with costs.

Birchard, J., having been counsel with one of the parties, took no part in this decision.