text:
    Edward N. Slocum v. Lessee of Gustavus Swan et al.
    Where, in an action of ejectment to recover “the old penitentiary lot,” in Columbus, E. N. S., the nature of whose possession does not appear in the record, was made defendant, entering into the common consent rule, and the then attorney-general signed a plea of not guilty, the record showed that, at a subsequent term, E. N. S. being called, came not nor further defended; that (a successor of the attorney-general who filed the plea having been '®appointed and qualified) “the attorney-general of the State of Ohio being also called, appeared, and declined further to defend the action;” and that “ neither party requiring a jury,” the court found E. N. S. guilty, and gave judgment for the plaintiff: Held, the issue made by the plea of “ not guilty,” could not be tried by the court. There was no waiver by the parties of a trial by jury.
    Petition in error to reverse a judgment of the court of common pleas of Franklin county, rendered at the June term, 1851.
    The case is fully stated in the argument of Mr. McCook, attorney-general, which follows.
    McCook, attorney-general, for plaintiff in error:
    The action below was ejectment, brought in March, 1847, for the recovery of a tract of “land in half-section No. 26, township No. 5, of range No. 22, refugee lands, so called, commonly known as the ‘ old penitentiary lot,’ in the city of Columbus.”
    At the April term, 1847, Slocum having been served with notice, appeared, entered the consent rule, confessing the lease, entry, and ouster, and was made defendant in room of the casual ejector. At the same time, the plea of not guilty was filed, signed “ Henry Stanbery, attorney-general, for defendant,” on which issue was joined.

      The land, in fact, belonged to the state, and Slocum was in possession as quartermaster-general; but this does not appear by the record, nor is it anywhere shown that the state was interested.
    The cause was continued from term to term until June, 1851, when, Mr. McCook being attorney-general, the record shows the following proceedings:
    “And now at this day, to wit, the day and year first herein aforesaid, came the plaintiff, by Mr. Backus, his attorney, and thereupon the said Edward N. Slocum, being three times solemnly *called to come into court and present his said defense, came not, nor further defends this action; and the attorney-general of the State of Ohio being also called, appeared, and declined to further defend this action; and thereupon, neither party requiring a jury, and the court being fully advised in the premises, do find that the said Edward N. Slocum is guilty of the trespass and ejectment laid to Ms charge, in manner and form as the said John Doe hath complained against him, and do assess the damages of the said John Doe, by means thereof, to one cent. Thereupon, it is ordered that the said John Doe recover against the said Edward N. Slocum, his said term yet to come, of and in the tenements aforesaid, with the appurtenances; and also his damages, so as aforesaid assessed, together with his costs.”
    Slocum having been turned out of possession on this judgment, this petition is brought to reverse it, and it is now assigned by the plaintiff as error—
    1. That after plea pleaded, judgment was rendered against the defendant by default.
    2. That the court inquired of a question of fact in issue by a plea, without the intervention of a jury.
    I do not know how to designate this judgment, but think I can show that it has been obtained in a mode unknown to the common law, or to the statutes, whether it is claimed to be supported as a judgment by default, by consent, or by trial on' submission by the court.
    The only mode of ascertaining the fact on an issue joined, known to the common law, was by jury. If no issue was joined, and judgment was rendered by default, damages were also to bo assessed by a jury. The same practice prevailed in Ohio at the time of rendering the judgment below, except so far as modified by our statutes.
    To sustain this judgment, it must have been rendered in one of three modes:

      1. By consent. And this may be obtained in two ways—
    *1. By consent of the party. This consent must expressly appear by the record, for nothing is to be presumed to sustain such a judgment. In this respect, it is like a judgment by default.
    Slocum, the defendant below, did not consent; for in person he was not in court, and it was not necessary he should be, as he had filed a plea. The record, showing that “ he was three times solemnly called to come into court and present his said defense, came not,” is conclusive that he did not consent. The words which follow in the record, “ nor'further defends this action,” are mere mockery, when he had tendered an issue, in an action where the plaintiff recovers on the strength of his own title, and not on the weakness of that of his adversary.
    2. By consent of the attorney. The novel practice of calling the attorney, appears in this ’record for the first time in Ohio. But they do not call the attorney of Slocum; but “the attorney-general of the State of Ohio,” being also called, appeared, and declined to further defend this action. The record shows no connection between the state and this proceeding. Henry Stanbery was the attorney of Slocum, as appears by the record, and the affix of his then office, in 1847, to the signature of the plea, is mere descriptio personce.

    But even if, at the time of this judgment, the attorney-general for the time being had béen the attorney of record, he does not consent. Consent is an affirmative act, which is wanting here; the record shows only that “ he declined to defend this action.”
    I do not admit the authority of counsel, as such, to consent to judgment, their employment being to prosecute or defend the rights of their clients in courts, not to consent them away. The consent shown by the record must be that of the party; it may be expressed through the counsel, but is, nevertheless, the consent of the party, and must so appear.
    II. By default. In the action of ejectment, the only provision for proceedings by default was against the casual ejector, *when the tenant in possession neglects or refuses, after notice, to confess the lease, entry, and ouster, and it is in these words:

      “ That the plaintiff, on affidavit of the delivery of the declaration in ejectment, shall have judgment against the casual ejector, unless the tenant in possession, or landlord or other proper person, shall apply to be made defendant, and enter into the common consent rule, within the term to which the tenant had notice to appear.” Swan’s Stat. 664, sec. 71. There could be no other default in this action on the part of the defendant, for, according to the practice in Ohio, the plea is filed with the consent rule. The other statutory provisions as to defaults have no application to this action, and do not help the judgment.
    If this judgment had been properly rendered by default, it would then have been competent for the court to assess the damages, the statutory provision being as follows:

      “ That where judgment shall be entered by default against the defendant, the court shall assess the damages, unless the plaintiff or defendant request a writ of inquiry.” Swan’s Stat. 671, sec. 98.
    But after an issuable plea, there could be no judgment by default whilst it remained on file. This is too clear for argument; but I refer to a few of the cases in which it is expressly ruled. Harris v. Muskingum Manufacturing Co., 4 Blackf. 267; Maddox v. Pullian, 5 Blackf. 205; Brown v. Hallenback, 2 Greene, 319; 1 Tidd’s Prac. 319.
    A proper plea having been filed,' it should have been disposed of.
    III. By trial. This trial must be by jury, unless, by the consent of the parties, it is submitted to the court, and the intervention of the jury waived.
    “ In any action, etc., which may be pending in any court of common pleas of this state, when the parties to such action shall agree to waive the intervention of a jury, and to submit the case to the court, it shall be the duty of such court to try and determine the facts,” etc. Swan’s Stat. 691, see. 158.
    *The court will mark the difference between the language employed here, and that in the section before referred to, authorizing the court, in the case°of a default, to assess the damages, unless the plaintiff or defendant requests a jury. Swan’s Stat. 671, see. 98.
    In the one case, the court assesses the damages, unless one party demands a jury; in the other case, when an issue is to be tried, the court can not act, unless both parties waive a jury.
    In one case, the silence of the parties is sufficient; in the other case, they must expressly waive the right of trial by jury — a right guarantied by the constitution.
    Does the record in this case show any such waiver of right, or consent to the determination of a different tribunal ? The words of the record are, “ and neither party requiring a jury ” — the precise words adopted in the forms, for cases of default and assessment of damages by the court. This is an entry which could be made truthfully, if the party was absent or present, and yet his consent may have been withheld. The record should show affirmatively the act of the party waiving the trial by jury, and consenting to that by the court.
    Notwithstanding this was wanting, the court tried the issue tendered by the plea, and found upon it; or rather, as the record shows that no evidence of any kind was introduced, “the court being fully advised in the premises, do find that the said Edward N. Slocum is guilty of the trespass and ejectment laid to his charge, in manner and form as the said John Doe hath complained against him.” A distinct finding of the fact put in issue by the plea, for the trial of which the defendant below, at the only time when the record shows him to have been in court, had put himself upon the country.
    I ask, then, that this judgment be reversed. It can not be maintained, as a judgment by consent of parties, for the defendant was not there to give it; nor by default, for he had his plea upon file, which put the proof upon the plaintiff; nor by trial to *the court, for the record shows that the court had no authority to try it.
    (No other argument was submitted.)
   Thurman, C. J.

The issue made by the plea of “ not guilty,” could not be tried by the court, without a waiver by the parties of a jury trial. There was no such waiver. The judgment must be reversed, and a writ of procedendo awarded.


source: Caselaw Access Project

author: Thurman, C. J.

license: Public Domain

text:
    John Lamb and John McKee v. Benjamin Lane.
    The provision in section 19 of article 1 of the constitution, that “ such compensation shall be assessed by a jury, without deduction for the benefits to any property of the owner,” applies to all the cases mentioned in the sec* tion.
    The word “jury,” in that section, as well as in the other places in the constitution where it occurs, means a tribunal of twelve men, presided over by a court, and hearing the allegations, evidence, and arguments of the parties. And they may be sent to inspect the premises.
    No valid appropriation of property for public use can be made without a law
      providing compensation to the owner, to be assessed in the mode prescribed in the constitution. The constitution, in this particular, does not execute itself.
    As there was no such law in existence, when the proceedings to condemn Lane’s property for the use of a road took place, nor any waiver by him of his righi to a jury trial, the proceedings were invalid.
    An assessment may be made by viewers in the first instance, provided a right of appeal is given to a court in which they may be assessed by a constitutional jury.
    This was an application for leave to file a petition in error, to reverse a judgment of the court of common pleas of Trumbull county.
    *The material facts, as shown by the record, are as follows:
    At the March session, 1854, of the county commissioners of Trumbull county, said John Lamb and Jobn McKee, with numerous other freeholders, presented their petition for the establishment of a county road, between points and upon a line therein described; which line passed through the lands of said Benjamin Lane. Proof that due notice had been given being made, and a bond as required by law being executed by said Lamb and McKee, as principals, witb others as their sureties, the commissioners, at the same term issued their order to three viewers, to view the proposed road, and if they, or a majority of them, should he of opinion that it ought to be established, then to assess damages pursuant to the statute.
    At the June session, 1854, the viewers reported in favor of establishing the road, and that said Lane had claimed damages, and they had assessed them at the sum of $500. Thereupon, Lane and others presented a remonstrance, and prayed for a review, which was accordingly ordered, and five reviewers appointed.
    At the September session, 1854, the reviewers reported in favor of establishing the road, and the commissioners being of the same opinion, and also approvi ng the assessment of damages, it was ordered that it should he established upon the payment of the damages.
    From this decision Lane appealed to the probate court, wherein such proceedings were had, that; on October 17, 1854, his damages were assessed by a jury of six men, at four hundred dollars, which finding, with the other proceedings in the court, after being recorded, were certified by the judge to the county auditor, and laid before the county commissioners at their December session, ,1854. Thereupon, the commissioners ordered that the road should be established upon the payment of said four hundred dollars into the county for the use of Lane, and the same being afterward so paid on February 28, *1855, an order was issued to the proper supervisor to open the road.
    At the March term, 1855, of the' court of common pleas, Lane exhibited his petition in error against Lamb and McKee, praying a reversal of said final order of the county commissioners establishing said road, and assigning for error “that the said commissioners ordered the said road to be established without any opportunity on the part of the plaintiff to have his damages for the same assessed by a jury, as provided by the constitution of this state in his favor, and without any assessment having been made.” And, as reasons for making Lamb and McKee, only, defendants, he represented that they were the only principals in the bond hereinbefore mentioned, and that they were the principal petitioners for the road, the other petitioners having no interest in the subject beyond the general interest, and, besides, they were very numerous.
    To this petition, Lamb and McKee answered in nullo est erratum; and thereupon, at the same term, the cause came on to be heard, and the court reversed the order- of the commissioners; whereupon Lamb and McKee moved that the cause be set down for further proceedings in the common pleas, which motion the court overruled.
    To reverse this judgment of reversal, or, if that can not be done, to reverse the order overruling said motion, leave was asked to file a petition in error in this court; and the following errors were assigned, to wit:
    1. The court erred “in holding for naught and reversing the proceedings and order of the county commissioners.”
    2. “In rendering judgment in favor of Benjamin Lane and against the plaintiffs.”
    3. “ In refusing, a&er reversal, to cause a legal assessment of said Lane’s damages, and neglecting to «make any proper order in the premises.”
    4. “ In holding that the assessment of said Lane’s damages in *the manner shown by the record, was a violation of the constitution of Ohio..”
    Birchard, in support of the application.

      Butliff & Tuttle, contra.
    Birchard, for motion:
    I. Assuming that section 19, article 1, of the constitution secured to Lane a jury of twelve to assess Ms damages, if he waived that right it was not error to assess the damages in any other manner. Not only might he have agreed to submit the damages to arbitration by three or five men, but he might, as in this case, agree to let the assessment be made by six men, selected, as required by the statute, in the probate court. Flint River S. B. Co. v. Foster, 5 Georgia, 194.
    II. While the right is left to appeal to the court of common pleas, and get from that court any legal order, the preliminary proceedings, though they may clog, do not destroy the ri^ht of assessment, and do not render the law or the proceedings under it unconstitutional. Flint River S. B. Co. v. Foster, 5 Georgia, 194; 1 Binney, 416; 13 S. & R. 405; 2 Murph. 41; 1 Hawks, 482; 8 Yerg. 444; 4 Conn. 535; 4 Bibb, 416; 1 Marsh. 372.
    III. Making the assumption before stated (No. 1), Lane might have had such a jury by appealing to the common pleas instead of the probate court, because the former is a court of record, known to the common law, and has power to make any order on appeal that justice requires — a fortiori, an order for assessment by a jury of twelve, if the constitution secures that.
    IY. Lane, therefore, waved any such right to a jury of twelve by not appealing to the common pleas, and going into the probate court.
    Y. But section 19, article 1, does not require such a jury. (1.) The constitutional provision in section 5, that the right of trial by *jury shall be inviolate, only means such right as was known to the law when this new constitution took effect. Then no common-law jury-trial was known in such a proceeding as this. (2.) If we look to the statute, we find that a jury of six was the only one then known for such a case. Act of March 25, 18^1. (3.) Juries of six, before justices, etc., had been known for many years. That was the name given by statute, and by that name they were known by the people, and by the members of the convention which framed the constitution. (4.) Section 19, article 1, and section 5, article 13, taken together, show that those who framed the constitution did not regard the term “jury” as implying, in all cases, and ex vi termini, the number twelve. As used in article 13, “ a jury of twelve men,” by all rules of construction, implies, that as applicable to that class of cases, if the words “ of twelve men” had not been used, six would have been sufficient, as it had been in other cases. Uxpressio unius est exclusio alterius.

      VI. As applied then, to the assessing of damages for appropriating private property, in the exercise of the right of eminent domain, the term jury had just the meaning fixed by statute in such cases.
    VII. If the question of constitutionality be in doubt, the law must be treated by courts as constitutional.
    VIII. The court of common pleas should either have sent the case back, in order that further proceedings might be had, avoiding the error complained of, if existing, or should have regarded the case properly before it for the purpose of correcting that error; and should have proceeded to correct it by impaneling a proper jury of twelve. Secs. 511, 527, 531, of the Code.

      Sutliff & Tuttle, against the motion:
    I. Article 1, section 19, in providing that such compensation shall be assessed by a jury, “ intends to determine and define the tribunal by *which the compensation shall be assessed.” But that can not be, unless the word* “jury ” is taken in some determinate and defined sense. And the signification of the term must have been fixed in one of two ways ; by the definition of it in the constitution itself, or by its previous use.
    II. The term, as defined in the constitution, is a body of “ twelve men,” acting in a court of record. Art. 13, see. 5. The position most favorable to the plaintiff in error, therefore,, is to say, that the term is not defined in the constitution, and use alone must be looked to for its signification.
    III. In the statutes, the term has been used with vagueness as to the number of men. When the constitution was adopted, there were juries of twelve, of six, of five. Swan, old ed., tit. Sheriffs and Coroners. See also statutes as to apprenticeship, as to trials before justices, and as to occupying claimants.
    IV. If the constitution uses the term jury according to this loose statutory use, nothing is defined or limited by it, and it affords no sort of guaranty for the right referred to.
    V. But when the constitution was adopted, there was another use of the word “ jury; ” that, namely, in which, ex vi termini, without addition or explanation, it denoted the jury of twelve men. 2 Rent’s Com. 13 (4 ed.), note. So entirely has the common-law use of the term been resorted to in construing the constitutional provisions for trial to and settling their effect, that, in cases where a jury was not given at common law, it- is still held not to be given by this provision. But in all these cases where a body of men differently constituted, has been held to be lawful, it has been put upon the ground, not that such a, body is a jury, but that in such cases a jury is not required, because not required at common law. Willyard v. Hamilton, 7 Ohio (pt. 1), 111. .Here, there is a use of the term, which would serve the purpose of the framers of the constitution, the limitation of the tribunal under consideration. No other supposible use does afford this limitation ; the framers of the constitution ^intended a liinitation; consequently, they must have intended this use of the term, which alone would give that limitation.
    YI. There are other principles of construction which give the same result, and require us to take the term as used in its higher and more important sense. Of these, additio probat minoritatem, is one.'
    YII. The argument is not legitimate, that at the time of the adoption of the constitution by the people, *there was a statute pro. vidirig for a body of six, called a jury, to assess damages in such cases. Act of March 25, 1854, Curw. 1672, sec. 2-4. The constitution had been entirely completed and signed fifteen days before the passage of this law. The language of the former is that of its framers only. Though submitted to the people, it derived its legal efficacy from the action of its framers only. See Old Cons., art. 7, sec. 5. They were not required even to submit the instrument to the people at all. Although they did so, yet its language was their own, used in the meaning of such language, when they selected it to express their ideas.
    YIII. The decisions relating to the provisions in the old constitution, simply establish some of the common-law limitations of the right, and show that it did not extend to assessments of property taken for public use, tacitly admitting what would belong to such proceedings, if the right of such trial did extend to them. The present constitution extends the right to such cases; it is the same now, as if the right had existed at common law.
    IX. The new constitution, adopted in view of those decisions, was designed to remove this evil. If the present law is constitutional, there is no alteration of the matter from what stood before. To submit the matter to a body of men constituted as the old committee was, to all substantial purposes, does not alter the matter, although the triers be called committee in one law, and jury in another.
    X. The case of Work v. The State, 2 Ohio St. 296, is referred to, and should determine this case also.
    *XI. The common pleas has no jurisdiction of the question of damages, unless it might take it contrary to the words of the statute, expressly declaring that the claim for damages shall go to the probate court. And to give the power in question to the court of common pleas, would be to vest it with a discretion as to the estabment of the road at the public expense, designed by the law to be exercised only by the commissioners.
    XII. This view also applies to the refusal of the court of common pleas, on error, to retain the case for further proceedings.
    XIII. But no such jurisdiction as that last referred to is given to the common pleas, except in the single instance of proceedings certified from before a justice. Sections 532,526, of the code, relate to the district and Supreme Court only, and require the proceedings to be sent back for trial.
    XIT. There was no waiver. Consent can confer no judicial power. But the motion on the part of Lane was a merely compulsory act.
   Thurman, C. J.

The questions presented by this record have been very fully and ably argued by counsel, in order that they might be decided upon this application, the applicants not wishing leave to file their petition unless the court, upon mature consideration, should be of opinion that the judgment complained of ought to be reversed. It is not our practice to hear fully, upon a mere motion to file a petition in error, since we do not require to be convinced that a judgment is erroneous before granting such .leave. It is sufficient that we doubt its correctness, or that the question is one which, though not difficult, is yet of such general importance, that it ought to be decided by the court of the last resort, and reported. But where, as in this instance, the questions are of unusual gravity, and their decision at an early day is highly desirable, we do not hesitate to depart from our usual practice, and consider them as fully, upon a mere motion for leave to file a petition, as we would upon the petition if filed.

*It was not pretended in the court below, nor is it now that the of the statute in respect to the-laying out of roads, were not complied with in this case. But the objection made, is, that when these proceedings took place, there was no law providing for such a jury to assess Lane’s damages, as he had a right under the constitution to demand, and that, consequently, the attempt to appropriate his land was unconstitutional.

That private property shall not be taken for public use without compensation in money being made to the owner, and that such compensation shall be assessed by a jury,” are express provisions of the constitution (art. 1, sec. 19); and that no valid appropriation can be made without a law providing such compensation, is a fundamental principle often asserted, and nowhere more strongly than in this state. “Before the owner can, without his consent, be deprived of his land, for the public use, the legislature must declare by law that the public welfare requires it, direct the mode of ascertaining its value, and provide for its payment,” was the language of the court, in McArthur v. Kelley, 5 Ohio, 143. “ Unless the law, by which the defendant’s property is taken for a public use, provides him a compensation, it is void,” said Chief Justice Lane, delivering the judgment of the court, in Foote v. Cincinnati, 11 Ohio, 410.

That where the constitution prescribes the mode of assessment, that mode must be pursued; and that the constitution, in the particular case under consideration, does not execute itself, but that provision must be made by law for the selection, etc., of a jury, are propositions sufficiently obvious and not denied.

This brings us to the questions involved in this case, to wit:

1. Does the provision in article 1, section 19, of the constitution, for an assessment of compensation by a jury, apply where property is taken to make or repair roads, which are to be open to the public without charge ?

2. Does the term “jury,” in that section, mean a jury of twelve?

*3V If it does, had the law provided such a jury when Lane’s land was taken ?

4. Did he waive his right to an assessment by such a jury ?

The constitutional provision is in these words:

“Art. 1, sec. 19. Private property shall ever be held inviolate, but subservient to the public welfare. “When taken in time of war or other public exigency, imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, which shall be open to the public without charge, a compensation shall be made to the owner in money; and in all other cases, where private erty shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall bo assessed by a jury, without deduction for the benefits to any property of the owner.”

In Stemble v. Hewling & Hancock, 2 Ohio St. 228, it was very elaborately argued, that this provision for a jury relates only to cases falling under the latter clause of the section, and that consequently in the cases specified in the first clause, of property taken for purposes of war or for public roads, a jury assessment is not necessary. In respect to these, it was said that the constitution is not different from that of 1802, under which it was uniformly held that the damages might be assessed by a commission. Willyard v. Hamilton, 7 Ohio (pt. 2), 111.

For reasons stated in the judgment delivered, we then expressed no opinion upon this question; but we have now considered it, with the aid of the arguments referred to, and are unanimously and clearly of the opinion, that both the jury provision and that forbidding a deduction of benefits, do apply to all the cases named in the section. There is nothing in the grammatical construction of the section, nor anything in reason or justice, that requires a more limited application; and it is certainly forbidden by a consideration of the old law, and the *evil which it is fair to presume the constitution was intended to remedy. In regard to this last consideration, see the remarks of Judge Ranney, in Work’s case, 2 Ohio St. 307.

That the term “jury,” without addition or prefix, imports a body of twelve men in a court of justice, is as well settled as any legal proposition can be. Work’s Case, and Willyard v. Hamilton, supra. That it is used in this sense wherever it occurs in the constitution, except in the section under consideration, is admitted by counsel, and could not be successfully denied. Unless, then, we are prepared to assert, that the same word means one thing in one part of the constitution, and another thing in other parts of it; that in some places it has a definite legal signification, but that in another it defines nothing with certainty, we must give to it, wherever it occurs, its ordinary common-law import. Now, is it reasonable to suppose that the framers of the constitution used the word in an indefinite and doubtful sense, and that, while carefully protecting the right of property, by adding to the pre-existing safe-guards the additional one of a jury trial, they left it to the legislature to constitute the jury of.any number, however small? For, if it may consist of six, as prescribed in the statute before us, for the same reason it may consist of three, or two, or even one, if the assembly see fit to declare so. And, as was well observed in Work’s case, “ it is no answer to say, that this would not likely be done. ' If it had heen deemed safe to leave it to the discretion of the general assembly, no constitutional provision was needed; but whether needed or not, it has been ordained by a power, which both the general assembly and this court are bound to obey.”

.Nor can it be said that the constitution means to give a jury of twelve only where the common law gives it; for where a right of way is appropriated for the use of a corporation, it is expressly declared (art. 13, sec. 5), that the compensation to the owner shall be ascertained by a jury of twelve men, in a court of record. The spirit of the constitution is thus manifest, *for there is no reason why a jury of twelve, in a court of record, should be the proper tribunal when property is taken for a corporation, and some inferior tribunal be deemed sufficient when it is taken in the name of the state. It is only by an exercise of her right of eminent domain that it can he taken at all; and a corporation, when appropriating it, is nothing more, in principle, than her agent or instrument. 1 Ohio St. 95. However taken, it must be for a public use; for no corporation can take it for a mere private use unconnected with any public purpose. Ib.

And here I may observe, that the constitutional provision last cited, affords an answer to the argument ab inconveniente that has been urged upon us; for there is no more difficulty in assessing the damages 'by a jury of twelve, in a court of justice, when property is taken for the state, than there is when it is taken for a corporation.

It also furnishes an answer to what has been said of the use of the word “jury” in divers statutes, to designate bodies of men composed of a less number than twelve; as justices’ juries, sheriffs’ and coroners’, and apprentices’, etc.; for, by requiring twelve men sitting in a court of record, it shows that no smaller tribunal was contemplated for cases of condemnation. And in this connection it may be well to remark, that the act of March 25,1851 (2 Curwen, 1672), which provided a jury of six to assess damages in road was not enacted until after the constitution was framed and the convention had adjourned. Of course, it throws no light upon the purpose of the convention.

It is true that the counsel for the applicants draws a very different inference from article 13, section 5, and argues that the specification of the number twelve in this section, affords an implication that that number is not required by section 19 of article 1, in which the number is not expressly stated. “JSxpressio unius est exclusio alterius,” is the argument.

But in addition to what has already been said militating ^against this view, it is to be borne in mind that the above maxim is by no means of indiscriminate application, and that it would be especially dangerous to rely very strongly upon it in construing the constitution, the different articles of which were drafted by different committees, who, however they might concur in a common purpose, would not be very likely to employ precisely the same language to accomplish it. The committee that drafted the bill of rights (art. 1) saw no necessity to define the word “ jury,” for they apprehended no disregard of the ordinary legal signification of the term: the committee that prepared the article on corporations were apparently less confident, or were of a more cautious temper, and they did define it.

It was in view of these and the other considerations that bear upon the question, that this court arrived at the conclusion, in Work’s case, to which we still adhere, that “if any inference is to be drawn from specifying the number of the jury [in art. 13], it is very strong evidence of the sense of the convention, that that was what had already been secured by the other sections, to suitors in other cases.” 2 Ohio St. 307, 308.

And we agree with Grimke, J., in Willyard v. Hamilton, that a jury, properly speaking, is an appendage ■ of a court, a tribunal auxiliary to the administration of justice in a court, that a presiding law tribunal is implied, and that the conjunction of the two is the peculiar and valuable feature of the jury trial; and, as a necessary inference, that a mere commission, though composed of twelve men, can never be properly regarded as a jury.

Upon the whole, after a careful examination of the subject, we are clearly of the opinion, that the word “jury,” in section 19 of article 1, as well as in the other places in the constitution where it occurs, means a tribunal of twelve men, presided over by a court, and hearing the allegations, evidence, and arguments of the parties. It is hardly necessary to add, that they may be sent to inspect tho premises. That may be done in the trial of even a common-law action, when it is expedient. It is done, ♦under the act regulating the appropriation of property by corporations; an act, I may remark, in passing, that shows how easy it is to comply with the requirements of the constitution upon the subject we are considering.

Before leaving this part of the case, I would observe, to prevent misapprehension, that we entertain no doubt of the validity of an enactment that requires an assessment of the damages, in the first instance, by a commission — as, for example, the viewers of a road —provided a right of appeal is given to a court in which they may be assessed by a constitutional jury. For the same reason that a cause m'ay be tried by a justice of the peace, without a violation of the constitutional provision securing the right of trial by jury, provided such trial by jury can be obtained by an appeal, there may be an assessment by the viewers of a road or other commission, if an appeal and proper jury trial be allowed.

The next inquiry is, whether, when Lane’s property was taken, there was any law providing a proper jury to assess his damages. And we are clearly of the opinion there was not. The statute required them to be assessed, in the first instance, by the viewers, which was well enough. From their decision, when confirmed by the county commissioners, an appeal was given to the probate court in respect to the damages, and to the court of common pleas in respect to the order establishing the road. With the policy of thus dividing the proceeding into two parts, and sending one part to one forum, and the other to another, we have nothing to do. It is sufficient that each court was competent to receive the jurisdiction conferred upon it; but the fatal difficulty is, that a jury of six was prescribed for the case in the probate court; and as to the common pleas, no jurisdiction over the question of damages was given to it.

It is argued, indeed, that the common pleas, after the reversal of the order of the county commissioners, might have set the matter down for further proceedings in that court, and caused an ♦assessment by a jury of twelve to be made. But the statute gave no such authority, and to have done so, would have been to usurp a jurisdiction not conferred, by supplying an omission in legislation.

The last point made is, that Lane waived his right to a jury trial.

We see no waiver in the case. For my own part, I do not perceive how a man can be said to waive a thing which he can not have, let him demand it ever so stoutly. Had Lane required an assessment by a jury of twelve, his demand would have been fruitless, for there was no law to impanel such a jury. How, then, can he be said to have waived it? But, apart from this consideration, what evidence of waiver is there ? It is answered, that he did not appeal to the common law, from the order establishing the road, and he did appeal to the probate court, in respect to the damages.

This is all very true, but what does it amount to ? Simply to this, that he sought to get the damages to which he thought himself entitled, and, failing, refused to accept the amount assessed. Had he accepted that amount, there would be room to talk about a waiver. As it is, there is none. He was no volunteer, coming into court without being called, and selecting his own forum. On the contrary, he was on the defensive all the time. The public were trying to take his land, and he was resisting the attempt until he should be paid to his satisfaction, or the amount of his damages be ascertained in a constitutional mode.

It follows, from these views, that there is no error in the action of the common pleas, and leave to file a petition in error is therefore refused.


author: Kennon, J.

text:
    *David D. Ogden v. Gilbert M. Ogden et al.
    Where A is entitled to a conveyance of land from B, and A lias agreed to convey the same land to C, npon the performance, on the part of C, of certain conditions, and it is agreed between A and 0, that the deed shall be executed by B to C and deposited with a third person, to be delivered to 0 upon his performance of the conditions of sale; and the deed is accordingly executed and left with such third person, who afterward delivers the deed to 0 without the performance of such pondition, no title passes to C by such delivery.
    Where the condition upon which the deed was to be delivered, was in substance, among other things, that 0 was to. execute a mortgage upon the premises to be conveyed, to secure the payment of money for A to a third person, and a bill is filed by A for a specific performance of the agreement, a court of equity will compel the execution of the mortgage, or if the money thus secured to be paid is due, will decree the same a lien the land, and direct • a sale of tlie interest of A and 0 in tlie land, to pay tlie amount which, was to be secured by the mortgage.
    Where 0, after procuring the deed out of the hands of the person who held the same as an escrow, by unfair means, makes a mortgage on the same to a stranger, such stranger acquires no lien on the land which can be prior to the lien for the money which 0 was, by. mortgage, to secure to A before he was entitled to the possession of the deed.
    In chancery, reserved in Seneca county.
    The case is stated in the opinion of the court.

      Gibson & Tunison, for complainants:
    The deed was never delivered; in the hands of Gilbert M. Ogden it was an escrow; and, obtained without the performance of conditions which were to precede its delivery, it passed no title. 4 Kent, 454; 2 Johns. 248; 21 Wend. 267; 20 Ib. 49; 12 Ib. 647; 6 Ib. 666. The actual date of a deed is its delivery, and a deed delivered as an escrow takes effect only when the conditions are fulfilled. Lessee of Shirley v. Ayres, 14 Ohio, *207; Jackson v. Dunlap, 1 Johns. Ch. 114; Shoemaker v. Osterholt, 3 Hill, 513; Jackson v. Phillips, 12 Johns. 413; Beekman v. Foust et al., 18 Ib. 543; Murray v. Stair, 2 Wend.; Black. 307, note 20; Clark v. Gifford, 10 Wend. 311; Hatch v. Hatch, 9 Mass. 210; 12 Com. Law, 351; 4 Cruise, 34, 35; 7 Ohio (pt. 2), 50; 2 Story Eq. Jur., sec. 1020; Taylor’s Law Glossary, 123; Webster’s Die., tit. Escrow. McMillen having obtained the deed by fraud, no title passed to Watson or Stroh. As the complainant held the title-bond of Myers, and as the latter was only bound to make a deed to the holder of that bond, it can not be contended that the deed was delivered by Myers to McMillen. Myers was bound to convey to complainant, or his assigns. The bond was never assigned to McMillen; and before its transfer, Mc-Millen was bound to perform certain things, which he never has performed. A delivery of the deed by Myers to .McMillen, would have been of no effect. The deed was made, as the testimony shows, to save expense, and was held as an escrow, to secure the performance of certain things by McMillen.

      Pennington & Lee, for Watson; W. O. & H. Noble, for Stroh:
    If there was any real question between G. M. O. and the other respondents, he should have made the issue by cross-bill, or made his answer such. As it now stands, his answer, without verification, could affect no one in the case; and his deposition, taken by the complainant, as to questions entirely foreign to the issue between them, can not affect the other respondents; but if this deposition contained evidence pertinent to any issue between the complainant and Watson and Stroh, of either of them, it would be different. The bill should be dismissed as to respondents, Watson and Stroh.
    At the time of the exchange of lots between complainant and McMillen, G. M. O. held a purchase-money lien on lot 227, *subsequently reduced to $230. This lien was waived by the agreement of G. M. O. with complainant and McMillen, to take the latter for the amount, to be secured by mortgage on lot 193, which McMillen subsequently gave. A deed was deposited with G. M. 0., for his indemnity, which afterward he voluntarily delivered up; For this act complainant is not responsible, and he has a right to conveyance of the lot, free from all question as to purchase-money lien, so far as the sum of $230 is concerned. If this lien is then waived or lost, so far as complainant is concerned, it is lost forever, and the lot entirely relieved from it.
    G. M. Ogden has no lien upon lot 193. He never was owner, and can have no purchase-money lien. The lien by deposit of title, papers attaches in some of the states, and is termed an equitable mortgage. Yet, even if this kind of lien were known to the laws of this state, G. M. O. could have, by the deposit made with him, no lien prior to Watson & Stroh — such liens not taking priority over subsequent mortgages without notice, and where mortgages have been duly recorded. 2 Story’s Eq., see. 1020. Nor has the complainant any lien on this lot. G. M. Ogden must abide his contract, and look to McMillen alone to discharge the debt of $230. The complainant can in no way be charged with, or compelled to pay it. He could not claim it from McMillen, and therefore could not hold a lien for it upon lot 193. But, on the other hand, the complainant was to discharge the lien of $110 to Young upon lot 193, which is long past due, and remains unpaid. In this, complainant has failed to complete his own contract with McMillen — has failed to do equity, on his own part, in the outset.
    The law defines an escrow to be, where a man makes a deed, or written obligation, and delivers it to a stranger to hold till certain conditions are performed by the grantee, and then to be delivered to him, to take effect as his deed. It is essential that the delivery be made to a stranger and not to the party; for if delivered to the
      partg, let the words be what they may, the delivery *is absolute ; the deed shall take effect at once, and the party is not bound to perform the condition. When such deposit is made, it is important that the terms and conditions of it should be clearly expressed, and that it should be declared to be deposited or delivered as an escrow; for if the grantor delivered the deed as his, to a stranger, to be delivered to him to whom it is made, on the performance of certain conditions, it will take effect at once. Wheelright v. Wheelright, 2 Mass. 446; Fairbanks v. Metcalf, 8 Mass. 230; Hatch v. Hatch, 9 Ib. 293; Ruggles v. Lawson, 13 Johns. 285; James v. Vanderheyden, 1 Paige 385 ; Foster v. Mansfield, 3 Metcalf, 412 ; 4 Pick. 518. But here the grantor, Myers, had nothing whatever to do with the arrangement under which G-. M. O. took the deed, supposing it to have been made as stated by G. M. 0., but knowing nothing about it; made no condition at the time of the delivery of the deed, either to McMillen or complainant; and to one or the other of these persons, he (Myers) must have delivered the deed. If to McM., the delivery was complete, and the title perfected in McM. If to complainant, to be delivered to G. M. 0., upon some other arrangement between the two Ogdens and McM., in which the grantor (Myers) had no concern, imposing no condition whatever before delivery, then it is clear that the deed was not an escrow in the hands of complainant, nor could become so in the hands of G. M. Ogden, because Myers was not a party to any such delivery to G. M. Ogden; therefore, the title, in this view of the case, at once vested in McMillen; and if he had conveyed the premises to a third person in good faith, even while the deed was in the hands of G. M. Ogden, such conveyance would have been complete and valid.
    But even if this deed was not legally delivered, and if McMillen, therefore, had not the legal title in lot 193 at the time he made the mortgages to Watson and Stroh, it does not necessarily follow that these mortgages were void and should be canceled. McM. had an equitable interest in the lot at least, and which, of ^course, would be covered by these mortgages. Myers had been fully paid for the lot, and if the legal title still remains in him, it is merely nominal. Neither G. M. O. nor the complainant can claim that the legal title to this lot is in either of them by the operation of this escrow; if not in either of them, it must be in Myers or McM; if in either of the latter, the mortgages are sustained, and the real ques tion is as to the priority of liens; and G. M. 0., having no lien at all, must be postponed until he gets his claim in a different shape. His being the depositary of an escrow, gives him no lien or claim at all upon this lot. It is not claimed or pretended that lot 193 is insufficient to pay Watson, Stroh, and G. M. Ogden the full amount of their respective claims. The lot, then, being ample to pay all these claims, and G. M. O. having a mortgage on it, made pursuant to the contract under which the deed was deposited with him, he must pursue his claim under this mortgage, and in no other way, so far as he may take steps to make his money out of lot 193.
   Kennon, J.

In the fall of the year 1851, David D. Ogden was the equitable owner of lot No. 193, in the town of Republic, Seneca county, Ohio — upon which Jacob Young held a lien, by mortgage, for about $110, with interest. The naked legal title was in a man by the name of Christian Myers, who was bound to convey to David D. Ogden, the complainant, and was ready and willing to do so.

Gilbert M. Ogden had been the owner of lot No. 227, in the same town, and by a written agreement had agreed to convey the same to William McMillen, upon the payment to him by McMillen of the sum of $850. McMillen had paid to Gilbert M. Ogden $200, leaving a balance still due of about $650.

An agreement was entered into between David D. Ogden and McMillen, by which David D. Ogden was to pay the hundred and ten dollars due to Jacob Young, and $400 of the $650 due to Gilbert M. Ogdbn; and McMillen was to assign to David D. *Ogden the title-bond for lot No. 227, on Gilbert M. Ogden, so that upon payment of the purchase money to Gilbert M. Ogden, David might procure the title to lot 227 directly from Gilbert M. Ogden, in whom the legal title was then vested.

McMillen was to pay the balance of the purchase money due to Gilbert M. Ogden on lot No. 227, being about $250. It was further agreed between David D. Ogden and McMillen, that David D. Ogden should procure the title to lot No. 193, to be made by Christian Myers to McMillen, and that McMillen should execute a mortgage on lot No. 193 to Gilbert M. Ogden, to secure the balance of the purchase money of $250 to Gilbert M., on lot No. 227.

David D. paid to Gilbert M. the $400 which he was bound to pay, or at least secured the payment of the same to the satisfaction of Gilbert. He also procured Christian Myers to execute a deed, and acknowledge the same, purporting to convoy to McMillen lot'No. 193. This deed was not' delivered to McMillen, but to David D. Ogden, who, with McMillen’s assent, delivered the same to Gilbert M. Ogden, to be by him delivered to McMillen, upon McMillen securing to Gilbert, by mortgage on lot No. 193, the balance due Gilbert on lot No. 227, being the two hundred and fifty dollars which McMillen had bound himself to David D. to pay to Gilbert M.

About the month of March, 1852, McMillen, under pretense of procuring a description of lot No. 193, px’ocured from Gilbert M. Ogden the deed thus deposited with him by David D. Ogden, without previously having assigned and delivered to Gilbex't the title bond, which he had executed to McMillen, or having executed to Gilbert a note or mortgage for the balance of the purchase money due Gilbert. McMillen havixxg thus procured possession of the deed made by Myers, and purporting to coixvey to McMillen lot No. 193, executed two mortgages on the lot, one to secure to a man by the name of "Watson, a debt of between one and two huxxdred dollars, and one to secure to Johxi Stroh a debt of ^between two and three hundred dollars; and afterward executed a note to Gilbex’t M. Ogden for the $250, payable one year after date, axid executed a mortgage to secure this last note, and caused the same to be delivered to him as he, McMillen, was about to leave in the cars for Califoxuxia; but this note and mortgage were not accepted by Gilbert M, Ogden as satisfactory. The other two mortgages wex’e duly received.

McMillen did not assign or deliver to Gilbert, for David D. Ogden, the title bond.

The bill in this case was filed by David D. Ogden, substantially stating the above facts, and further, that Watson axxd Stroh combined with McMillen to cheat. and defraud the complainant. The bill px-ays that the lien of the complainant, for the payment of the $250 may be held to be the fix’st and best lien after Young’s mortgage, that the deed to McMillen may be set aside, as well as the mox-tgages of Watsoxx axxd Stroh, that Gilbert may be compelled to convey lot No. 227 to complainant, axxd for general relief.

Watsoxx, Stroh, Young, axxd Gilbert M. Ogden, axiswer; replications are filed to the answers of Watson and Stroh, axxd the bill as fc McMillen is taken pro confesso. The deposition of Gilbert M. Ogden is taken, and there is no other evidence except some written contracts.

If we look to the written contracts between David D. .Ogden and McMillen, they seem to be little else than title bonds, by which David agrees to convey to McMillen lot No. 198, on or before the first day of November, 1851, in consideration of four hundred and fifty dollars paid; said lot being a part payment for lot No. 227. And McMillen by a like instrument binds himself to convey to David D. Ogden, lot No. 227, on or before the same day, November, 1851, upon a conveyance being-made to McMillen of lot No. 193, and a payment of $400 being made to Gilbert M. Ogden on account of the purchase by McMillen from Gilbert.

Neither of-these contracts is under seal, nor *does either of them mention the fact that David D. Ogden is to pay the mortgage of $110 on lot No. 193, nor the fact that McMillen is to pay the balance due Gilbert M. Ogden of $250 or $230, nor that Meyers is to make a deed direct to McMillen for lot No. 193, and that Gilbert M. Ogden, after being paid the balance of his purchase, is to make a deed to David for lot No. 227. Still, inasmuch as each bound himself to make a warranty deed to the other, the effect would be that each would have to answer to the other for any damages he might sustain by reason of the respective liens on the lots; and we have come to the conclusion, from the facts in the case and the testimony of Gilbert M. Ogden, that a parol contract did exist between David D. Ogden and McMillen, that McMillen was to assign the contract which he had with Gilbert M. for lot 227, and' pay the balance due Gilbert of either $230 or $250, and secure the same to satisfaction of Gilbert on lot No. 193, by a mortgage executed at the same time of the delivery of the deed'from Myers to McMillen, and which mortgage was to have the first lien on McMillen’s title to that lot, and that a deed was to be made by Gilbert to David D.. Ogden on receipt of the purchase money. That although McMillen and David Ogden each agreed to make to the other a deed with clauses of warranty, yet, by a subsequent parol agreement, neither was to make the deed in fact, but to procure the same to be made, and to remove certain liens on the same.

Gilbert M. Ogden says, in his deposition, that “ in the winter of 1852, David D. Ogden and William F. McMillen came to me, and they then said to me that they had traded lots, and that David D. Ogden was to pay me four hundred dollars, for which David gave me his note; and it was then understood by myself, McMillen, and D. D. Ogden that I should retain possession of a certain deed which he, the said D. D. Ogden, handed me, which deed was executed by one Christian Myers and wife, which deed, with covenants of general warranty, conveyed to the said McMillen lot No. 193 in the town of Bepublic; which said deed I was to *keep possession of until said McMillin should deliver to me a certain title bond which I had given to said McMillen, conditioned that I was to execute unto him a deed for inlot No. 227, which bond was to be assigned by said McMillen to David D. Ogden, so that I could make a deed to D. D. Ogden; and the said McMillen was further to secure me the amount which he still owed me, the same being the residue of the purchase money for said lot No. 227, which amount was $230, to which amount was added $20 of other indebtedness, making $250, which the said McMillen agreed to secure by giving me a note and mortgage on lot No. 193. That after he (McMillen) had executed said note and mortgage, and delivered up and transferred said title bond as aforesaid, I was to deliver to said McMillen the said deed from the said Myers, which, by the terms of the agreement, as before stated, had been deposited with me by the said David D. Ogden.”

Taking this testimony of Gilbert M. Ogden as true — and we have no reason to doubt its truth — the deed executed by Myers and wife was deposited with the witness, to be delivered to McMillen upon the performance, on his part, of two conditions: 1. He was to assign to David D. Ogden the bond of Gilbert M. Ogden, and deliver the same to Gilbert. 2. He was to execute a note to Gilbert for the residue of the purchase money due on lot No. 227, and secure the payment thereof by a mortgage on lot No. 193. McMillen, to say the least of it; procured the possession of this deed without complying with either of these conditions, and immediately thereafter incumbered, so far as he could, the lot upon which the residue of the purchase money for lot 227 was to be secured.

The express parol agreement between McMillen and David D, Ogden was that McMillen was, by mortgage on lot No. 193, to secure to Gilbert M. Ogden $250, of which sum $230 was the residue of the purchase money due Gilbert M., without the payment . *of which Gilbert could not be compelled to make a deed to David — the payment or security for the payment of which was for the benefit of David, without which he could not procure his title. David had already satisfied Gilbert for $400 of the purchase money. And, although this was a parol contract, yet, as between David and McMillen or other persons, we know of no reason why a court of equity would not compel a specific performance of the agreement, where, as in this ease, the statute of frauds is not interposed by plea or answer. If a bill had been filed against McMillen alone by David D. Ogden, to compel him to execute such an agreement, and McMillen had not claimed the benefit of the statute of frauds, a court of equity would have decreed a specific performance of the contract.

There is nothing to prevent such a decree in this case, unless it be true that Watson and Stroh are bona fide purchasers without notice, and unless it be also true that McMillen acquired title to lot No. 193, so as to be able to convey the same by mortgage to them.

It is claimed by the complainant, that the deed executed by Myers to McMillen, was delivered to Gilbert M. Ogden as an escrow, to be by him delivered to McMillen, upon certain conditions to be performed by McMillen, and that, until the performance of such conditions, no delivery could be made by Gilbert, nor could any title pass to McMillen. That such was the intention of the parties, we have no doubt. On the other side, it claimed that David D. Ogden was a stranger to the deed, and that he had no power to deliver the deed, as an escrow, to Gilbert. That upon the execution of the deed by Myers, the title immediately passed to McMillen; that this deposit of the deed by David D. with Gilbert M., was not made pursuant to the law of escrow; that to constitute a good escrow, the deed must be delivered by the grantor to a stranger, to bo by him delivered to the grantee, upon the performance of some condition in which the grantor had an interest, over which he had control, or which he *had the right to direct; that^ the law defines an escrow to be, where a man makes a deed, or written instrument, and delivers it to a stranger, to hold till certain conditions are performed by the grantee, and then to be delivered to him, to take effect as his deed; that it is essential that the delivery be made to a stranger, and not to the party.

It is claimed that the grantor (Myers) had nothing whatever to do with the delivery, in this case, to Gilbert M. Ogden, and knew nothing about it, and, therefore, Gilbert could not hold the deed as an escrow.

In the first place, it may be observed that Myers, the grantor in the deed, at the time of its execution had no interest in the lot whatever, except as naked trustee. David D, Ogden had all the beneficial interest in the lot, and Myers was willing, in discharge of Ms obligation to David D., either to execute a deed to David D., or to McMillen. A conveyance by Myers to McMillen, with knowledge of David D. Ogden’s interest, would have conveyed to Mc-Millen nothing but the naked legal title. The whole beneficial interest in the lot would still have remained in David D. Ogden. It was this beneficial interest, as well as the legal title, which David had contracted to convey, and which McMillen had contracted to receive. The only interest in the lot which was worth having, was the interest held by David D. Ogden, and which could pass to McMillen by the consent of David D. only. Myers, without the consent of David, had no power to convey this equitable interest to McM'illen. It was David alone who had the control of this interest. He might consent to the unconditional transfer of the legal and equitable interest, or he might refuse to consent to the conveyance of his own interest. David D. was, therefore, in equity and in substance, the grantor in the deed, and Myers the mere instrument through whom the conveyance was to be perfected. David D. was not, therefore, a mere stranger to this conveyance; and if he cliose to annex a condition to the delivery of the deed, viz., that it should be delivered to a third ^person, to be delivered to McMillen upon the performance of certain conditions, he had a perfect right to do so; at least, with the assent of Myers. And, in this case, we would have no hesitation in finding, under the circumstances, that Myers himself, at the request of David, caused this deed to be delivered as an escrow, if it were necessary to find such fact: for it is very evident that Myers made the deed at the request of David D. Ogden, and would attach just such conditions to the delivery as David D. might direct.

The testimony shows, that the deed was in the possession of David D., and not of McMillen, when delivered to Gilbert, as an escrow.. This delivery may well be considered the delivery of Myers, the nominal grantor, through his agent, David D. Ogden, to Gilbert M. Ogden, a stranger, and upon condition; and therefore coming within the definition of an escrow. But we do not deem this necessary. We think that David D., being the real owner of the lot, might procure a deed from the trustee, to be executed to any person, have the same delivered to himself, and that he (David) might attach any conditions he might see proper, before he delivered the deed to the nominal grantee. To take the other view of this question, and held that, execution of the deed and delivery to David D. Ogden, the title passed to McMillen, would, in our opinion, be to lose sight of the substance of this, whole transaction, and vest title in McMillen, against the consent of the holder of the legal title, the holder of the equitable interest, and very much to the surprise of the grantee himself, who never calculated on any such result.

It is however further claimed by Watson and Stroh, that they are bona fide mortgagees, for a valuable consideration, without any knowledge of the agreement between McMillen and David D. Ogden ; and that, therefore, they can not be prejudiced by the deed having been delivered to McMillen by Gilbert M. Ogden, without McMillen’s compliance with the conditions upon which a delivery was to be made to him.

*A deed takes effect from delivery; without delivery it is not a deed. The deed executed by Myers, could not be delivered by Gilbert M- Ogden, or any other person with whom the same might-have been deposited as an escrow, until the conditions upon which the delivery was to take place, had been complied with by McMillen. McMillen did not comply with either of the conditions required of him, before he obtained possession of the deed. These-conditions were annexed for the benefit of David D. Ogden: one of which was, an assignment to David of Gilbert’s title bond to Mc-Millen, for lot No. 227 ; and the other was, that he should secure by mortgage on lot No. 193, the payment to Gilbert of the balance of the purchase money, so that David would have a right to .obtain, from Gilbert a clear title to lot No. 227. Without the payment of this balance, David was not entitled to a deed for the lot. McMillen did neither of these things, but as we read the testimony, he obtained the deed for the purpose of getting a description of the property, that he might execute the mortgage to Gilbert. The deed was neither delivered, nor intended to be delivered, by Gilbert, to McMillen; and, therefore, as between Myers and David D. Ogden on the one part, and McMillen on the other, no title, either legal or equitable, to lot No. 193, passed to McMillen. And assuming the-fact to be, as we find it to be, that these conditions to be performed by McMillen were for the benefit of David D. Ogden, and not Gilbert, McMillen, as against David, would have acquired no title to-the lot, even if Gilbert had actually delivered the deed, intending, thereby to pass the title to McMillen.

Gilbert M. was clothed with a special authority, and that known to McMillen, by which he could not deliver the deed, until the conditions on which it was to be delivered were complied with.

But admitting' all this to be true, it is still claimed, and with reason too, that if David reposed confidence in Gilbert, and he violated that confidence and delivered the deed, and loss is to fall on ^either David or the mortgagees, that David should sustain that loss, and not the innocent mortgagees. This position can not be denied, if fault is to be attributed either to David or to his agent, Gilbert, by which the mortgagees were misled to their injury.

There is a class of cases, however, to which this doctrine does not apply. A loans his horse to B, and B sells to C; A may recover the horse from C, although A reposed confidence in B, by which he obtained possession of the horse, and thereby enabled him to hold himself out as the owner of the horse.

In this country no one can obtain title to stolen property — money and bank notes possibly excepted — however innocent he may have been in the purchase; public policy forbids the acquisition of title through the thief.

So also, we apprehend, if one forges a deed for another’s projoerty and puts it upon record, he neither acquires nor has power to convey any title to such property. The original fraud so taints the transaction that a bona fide purchaser from such source could claim as against the real owner, no title whatever to the property.

So, if one intending to convey his land to another, ujjon being paid for the same, executes in due form of law a deed for the land, the grantee pays nothing, but steals from or robs the grantor of the deed, and puts it upon record, and makes sale to a stranger, who bona fide for a valuable consideration purchases the same, such stranger would acquire no title whatever to the land.-

If the owner of land makes a deed purporting to convey his land to any one, and. such person, by fraud or otherwise, procures the owner to deliver the deed to him, a bona fide purchaser from such fraudulent grantee, without notice of the fraud, might acquire title to the land. But if the deed never was in .fact either delivered or intended to be delivered by the grantee, or his agent, and the named grantee surreptitiously obtained- mere possession *of the deed, a bona fide purchaser from such holder of the deed, would no more acquire title thereby than if the grantee had stolen the deed from the grantor’s possession; such deed would be no more the deed of the grantor than if it had been a forgery. It wanted that which is essential to any deed, as essential as the signing of the deed, viz., a delivery.

In this case, as we understand the testimony, this deed was neither delivered, nor intended to be delivered. And we hold that neither McMillen nor his grantees or mortgagees obtained any title to lot No. 193; that the whole beneficial interest in the lot is still in David D. Ogden.

This beneficial or equitable interest in this lot thus belonging to D. D. Ogden, he never agreed to convey to McMillen, until McMillen created a lien thereon, to secure the payment for the' benefit of David D. of the balance due to Gilbert M., and if instead of Myers conveying to McMillen he had conveyed to D. Ogden, Ogden, by his agreement, was bound to convey to McMillen the lot, subject to the payment of the balance of the purchase money on the other lot. David D. Ogden had precisely the same equity to have the purchase money paid on lot No. 227, as he would have had if he had agreed to sell to McMillen lot No. 193, and McMillen had agreed to secure the balance of the purchase money on the same, being the sum of $250. These $250 are in fact a part of the consideration which McMillen agreed for the conveyance to him of lot No. 193, to pay for D. D. Ogden’s benefit to Gilbert M., to enable David to get a title for the lot No. 227.

After a full examination of the arguments made and authorities cited by defendants, Watson and Stroh, we are of opinion that David D. Ogden is entitled, by his contract, to have the balance of the purchase money due Gilbert M. Ogden paid by McMillen, and that, after the mortgage of Young, David is entitled to have the first lien on lot No. 193, for that purpose, whether that lien shall be in the name of Gilbert or David. That, *as the money is now due, the lien will be enforced by decree instead of mortgage.


author: Ranney, J.

text:
    Hollister v. Dillon et al.
    J. D. being indebted to T. for tbe purchase money of certain real estate, gave bim several notes and a mortgage upon tbe property to secure them. Soon after the execution of the mortgage, J. D. conveyed the land, subject thereto, to other persons. After some of the notes had fallen due, T. recovered a judgment at law upon them against J. D.; and, in ignorance of the conveyance, levied upon, bid off, and took a deed of the mortgaged premises, in satisfaction of the judgment. Upon a bill filed upon the mortgage, by the assignee of T. against J. D. and his grantees:

      Meld, That the sale of the property upon the judgment at law was no defense of this suit, and did not operate as a payment of any part of the debt secured by, the mortgage.
    That whether a court of equity has, or has not, the power to vacate the satisfaction of a judgment, and open it for further process, because the purchaser, under a mistake, bid off property to which the debtor had no title, it will not permit such a sale to prejudice a party, in a case over which it has unquestioned jurisdiction..
    That the mortgage gave such jurisdiction in this case, and nothing short of an actual satisfaction would operate to deprive the mortgagee of his estate in the property, or bar a suit to recover the money secured by the mortgage.
    The cases of Vattier v. Lytle, 6 Ohio, 477, and Freeman v. Caldwell, 10 Watts* 9, commented upon and distinguished.
    In Chancery ; reserved in Licking county.
    The case is as follows:
    On the 4th of February, 1839, Abraham Wright was the owner of one undivided third of a tract of 1,300 acres of land, the remaining undivided two-thirds being owned by Joseph Taggart, in his own right and as trustee of Edward Gray and Robert Taylor; and Joseph Taggart was also, as above, the owner of the ^undivided two-thirds of two other tracts, one of one hundred and thirty-two, and the other of one hundred and thirty-seven acres. On that day Wright filed his petition for partition as to the 1,300 acres, against Taggart, Gray, and Taylor, and 411 acres were set off for him.
    On the 11th of March, 1839, Taggart conveyed the undivided two-thirds of all the above-named tracts to John Dillon, Dillon giving back a mortgage to secure three notes dated October 23,1838, for $1,520.17 each, payable in one, two, and three years, with interest.
    May 30,1839, Wright’s partition was confirmed.
    October 22,1839, Wright, in consideration of $1, and that Dillon had covenanted that neither he nor Taggart, nor Gray, nor Taylor, nor any one claiming under them, should seek to disturb the par tition, conveyed to Dillon about 146 acres, out of the part which had been assigned in severalty to Wright in the partition.
    October 25, 1839, John Dillon conveyed all his interest in the three tracts to George B. Reeve and Moses Dillon, jr., who thus ■became owners (subject to Taggart’s mortgage) of an undivided two-thirds of the 132 and the 127-acre tracts, and (subject to the .same mortgage) of, first, all the 1,300-acre tract not assigned to Wright, and the 146-acre tract conveyed by Wright to Dillon as .aforesaid. It is claimed that Reeve and Moses Dillon made sundry payments to Taggart.
    July 5, 1841, Taggart recovered a judgment in the circuit court of the United States for the Ohio district, against John Dillon, in a ■suit on the two notes first due, for $3,526.78, and costs.
    March 15,1842, the deed from John Dillon to Reeve and Moses Dillon was recorded.
    June 19,1843, Reeve mortgaged his half to William Hamilton.
    January 11,1845, Taggart had execution issued on his judgment, which was levied soon after, on all that part of the 1,300 *aere tract which was not set off to Wright in severalty; 2. On the un•divided two-thirds of the two smaller tracts. The land was not sold for want of bidders.
    September 8, 1845, a vendí, was issued, and the land was sold to Taggart.
    March 12, 1848, the marshal conveyed to Taggart, recognizing Wright’s title to one-third in severalty “ set-off.” This deed was ■acknowledged May 1, 1848, and never recorded.
    January 4, 1849, Taggart conveyed to Hollister by warranty deed (except as to tax claims), according to the description in the marshal’s deed.
    July 26,1849, the mortgage from Reeve to Hamilton, given June 19,1843, was assigned to the complainant Hollister.
    October 24,1849, Hollister filed his bill, praying for an account .of the amount due him by reason of the promissory notes and mortgages aforesaid, and for a decree that the defendants pay complain.ant the sums of money to be found to be due as aforesaid, and in default, that the equity of redemption be foreclosed, or the land be sold, and for general relief.
    An amended bill charges the conveyance by John Dillon to Reeve and Moses Dillon to have been fraudulent, having been made without any valuable consideration, when the grantor was embarrassed and insolvent, for the purpose of hindering and delaying creditors, etc., and avers that when complainant purchased of Taggart he had no notice “that said John Dillon had conveyed said lands to said Moses Dillon and George B. Reeve for any good or valuable consideration whatsoever, and, on the contrary,” he “ supposed and believed that he was purchasing and receiving a full and perfect legal title to said land, unincumbered and in fee simple.” The amended bill further represents, “ that, at the time of the purchase by said Taggart at marshal’s salo as aforesaid, the said Taggart had no knowledge or notice that the said John Dillon had conveyed said lands to said Moses and George for any good or valuable consideration whatsoever, *nor had the said Taggart any actual knowledge or notice, that said John had parted with his title, until long after the execution of a deed from the said marshal to him, the said Taggart, for the lands aforesaid; but, on the contrary thereof, said bid was made and said deed received by said Taggart in good faith, under the full belief that said John still held the title-to said land, and that no deed had ever been executed by him to transfer the same to the said Moses and George, or any other person ; and if the said Taggart had known or believed that any valid conveyance had been executed by said John, conveying said land to any other person, the said purchase would not have been made ; and if it shall appear that any such valid conveyance was made by the said John before said purchase,” complainant “ avers that said bid was made under a mistake of fact,” etc. The bill further represents that it was not till sometime after complainant purchased the land and received a conveyance therefor, that he learned that said Moses and George claimed title to said land; and for the purpose of securing himself as well as possible in the title thereto, complainant obtained an assignment of the mortgages aforesaid and the notes thereby secured, etc.
    The answer of Moses Dillon denies that the deed to Reeve and Dillon was without consideration, payments having been made to Taggart at different times of $1,520.17, and $200 for John Dillon, and the balance of the consideration, which was in all $4,680, was in sundries, got of respondent and Reeve at various times. In this-respect, the answer denies the allegation of the bill as to the purof the to and Reeve. “ further answering says that the said Joseph Taggart well knew, at least as early as October, 1841, when he paid him on account of John Dillon the aforesaid $2,000, that he, respondent, was the owner of said land — that he and the said Reeve had purchased it of the said John Dillon, and that said $2,000 was part of the consideration paid John Dillon therefor. Respondent further states that the said complainant, William *Hollister, at the time of his purchase of said land from said Joseph Taggart, know well that this respondent and the said George B. Reeve were the bona fide owners thereof; that their deed was duly recorded long before that time, and that he often applied to this respondent to purchase.” The answer insists generally, that the mortgage to Taggart has been fully paid.
    A replication was filed by complainant, and the case stands in this court on the original and amended bill, the answer of Dillon, the replication, and the following exhibits among them:
    1. A letter from Taggart to Dillon, acknowledging the receipt of two drafts for $1,000 each. 2. A certificate, signed by Creighton & Green, as attorneys of Taggart, that defendant is entitled to an abatement from the judgment of $563.61 as of the date of. its rendition. The amount of the purchase at the marshal’s sale is insisted upon as a satisfaction of so much of the amount due on the mortgage.

      Smythe & Sprague, for complainants, made the following points, among others:
    I. The allegation of mistake in purchasing at the marshal’s sale being in the amended bill, and that bill not calling for answer under oath, the allegation in the answer, that Taggart knew of the sale to Moses Dillon and George B. Reeve before that purchase, will pass for nothing. The complainant relies upon the undisputed fact, that Taggart took nothing by the purchase, and the irresistible inference therefrom, that he would not have thrown away $2,435 in that way for nothing.
    II. It is not necessary to prove a mistake any more than any other facts in judicial proceedings by absolute, direct proof; but the same may be inferred in any case from.other facts, which reasonably lead the mind to that conclusion. 1 Story’s Eq. Jur. 176 ; Hyde v. Tanner, 1 Barb. S. C. 75.
    III. There was no satisfaction worked by the purchase at, the marshal’s sale. Under the circumstances of this case, in which the *j adgment creditor is the purchaser, and no title passes or the title fails, there is no more difficulty in going behind this suj)posed satisfaction than in going behind a receipt where nothing had in fact been paid. (The case of Vattier v. Lytle, relied on by the other side, so far from being authority in this case, only shows the necessity for the interference of a chancellor — that case being in a court of law.) Upon this point, the following cases are referred to : 11 Paige, 505; Bank of Utica v. Munson, 3 Barb. Ch. 586; Price v. Boyd, 1 Dana, 436 ; Jones v. Henry, 3 Littel, 427; 8 Dana, 183; Muir v. Craig, 3 Blackf. 293; Warren et al. v. Helen et al., 1 Gilman, 220; 2 N. H. 85.

      O. B. Goddard, for defendant.
    1. Hollister ought not to have a decree vacating the pro tanto satisfaction of the judgment caused by Taggart’s purchase. If Taggart brought a bad title, he has no relief in this court or elsewhere.
    1. The following cases are relied on: Vattier v. Lytle, 6 Ohio 477; Freeman v. Caldwell, 10 Watts, 9; England v. Clark, 4 Scam. 486; 4 Kent Com. 466, note (4), 7 ed. 1851, citing 2 Bailey S. C. 48.
    2. The “ act for the protection of purchasers at judicial and other sales,” passed March 2, 1846 (2 Curw. 1288, Swan 715), has settled the question, if any existed in this state. It recognizes the existing rule of caveat emptor, and gives such a remedy to the purchaser in such cases as the legislature thoiight worthy of it when the title is invalid by reason of defect in the proceedings — not when invalid by reason of other causes.
    3. If the plaintiff were entitled to this relief, he should seek it in the forum where the judgment remains. Barbell v. Griggs, 3 Paige, 207.
    4. A scire facias being in the nature of a bill in equity, the casé of Vattier v. Lytle is authority as claimed.
    5. The remark of the chancellor in Starr v. Ellis, 6 Johns. Ch. 395, is not here applicable. *We have nothing to do with the doctrine of merger. Chancellor Kent, in many cases, recognizes the doctrine that there is no remedy to the purchaser of a bad title, unless he have a covenant of warranty. Why should he have relief when purchasing at a public sale, in the face of the admitted law that he can have none when purchasing at a private sale. '

      6. The New York and New Hampshire oases cited for complainant are based upon the statute, 22 Hen. VIII, ch. 5, and colonial statutes of a like character. See 3 Barb. 586; 2 N. H. 84. The ■cases in Kentucky are cases of chattel sales, in which there is always, between vendor and vendee, an implied warranty of title. The Illinois case is directly in conflict with that cited on this side from 4 Seammon. Arnold v. Fuller, 1 Ohio, 458, is not applicable. The sale there was void by the defective process.
    7. If the court can interfere to relieve a purchaser when the title wholly fails, it must do so where the title partially fails. If the ■court will relieve against mistakes as to title, it must relieve against mistakes as to value.

    In addition to the briefs from which the foregoing points are taken, an oral argument was made by Mr. Stanbery for complainant, and Mr. Goddard for defendant; but no notes of that argument were furnished to the reporter.
   Ranney, J.

Our opinion is confined to a single question. Upon the other questions arising in the case, further testimony is required; and it is agreed by the parties that the cause shall be remanded to the district court to enable them to take it.

Shall the amount for which the land was sold to Taggart, upon the judgment rendered by the circuit court, be allowed as a pro .tanto satisfaction of the mortgage? The facts bearing upon this question are indisputable. The judgment was recovered upon two of the notes secured by the mortgage. The mortgage was given ^to secure the purchase money, and covered the lands levied ■upon and sold. Before the judgment was recovered against John Dillon, the mortgagor, he had sold and conveyed the land, subject to the moi’tgage, to Moses Dillon and George B. Reeve. It is perfectly evident that the land was levied upon, bid off, and a deed taken by Taggart, in ignorance of the conveyance; and most .abundantly clear that he got no title to the land by the sale, and •obtained no real satisfaction of any part of his debt.

But it is insisted by the defendants’ counsel that it is alto.gether immaterial whether he did or not; that his notes were merged in the judgment, and the judgment in part satisfied by the sale; and that he can not now be heard to insist upon a vacation of that satisfaction, because the sale by the marshal excluded all warranty — the purchaser taking all risks, and subject to the full operation of the maxim, caveat emptor. The cases chiefly relied upon to support this position are Vattier v. Lytle’s Ex’rs, 6 Ohio, 477, and Freeman v. Caldwell, 10 Watts, 9. These cases certainly go to the .full length of holding that a court of law will not vacate the satisfaction of a judgment, and order a new execution, because it turns out that the property which produced the satisfaction did not belong to the judgment debtor. Nor do they contain any intimation that a court of chancery possesses more enlarged powers, or could, in such cases, afford any relief. This doctrine is far from being universally acquiesced in. The eases cited in argument very conclusively show that relief is given in several of the states of the Union; but there is very little agreement as to the mode of obtaining it, or the principles upon which it is afforded; while several of the cases referred to, seem to rest upon statutory provisions. The subject has been most fully considered by the New York court of chancery, in the cases of Wambaugh v. Gates, 11 Paige, 505, and Bank of Utica v. Mercereau, 3 Barb. Ch. 586. In these cases, while the opinion of the chancellor evidently was that the relief might be given upon general equity principles, still, much reliance is *placed upon the analogy furnished by the statute, 22 Henry YIII, chap. 5, giving a new extent when the creditor was evicted, by title paramount, from the lands included in the first, and which had been adopted into the colonial legislation of that state.

It is clear, that neither class of cases can be made to depend upon any mere technical rule. The difference manifestly results from the greater or less weight given to considerations of public policy. Abstractly, there can be very little justice in permitting the debtor to pay his debt with the property of another, or in compelling the creditor to discharge it, before he has received an actual satisfaction. Where the debtor has lost nothing, and the creditor has received nothing, it seems most inequitable to permit a mere mistake to discharge the debt. But the fact, that exact justice can not be done in every case, is in no way decisive against the soundness of a general principle. If it is productive of general Convenience and simplicity, and in most cases adapts itself to the business and intercourse of men in society, it needs very little experience to see, that it is, upon the whole, salutary, and ought not to be impaired by ingrafting numerous exceptions upon it. The difficulty, in many cases, of determining what is abstractly right, and what remedy ought to be afforded, undoubtedly lies at tbe foundation of tbe refusal to interfere in any way, where the sale has been fairly made.

When the sale is made to a stranger, and the money has been paid over to the creditor, it is clear that the officer, who has done-no more than his duty, ought not to be required to refund; and by no means certain, that the creditor, who has got no more than he-was entitled to, and was under no obligation to investigate the debtor’s title to the property, may not conscientiously retain the-money of the purchaser — who must be presumed to have investigated, and to have been fully aware that he bought at his own risk. It is perfectly certain, that no contract to warrant the title can be-inferred, on the part of the debtor. As against him, the whole proceeding is im inviturrt; while attaining the same end, in *substance, by a new execution on the judgment for the benefit of the purchaser, involves the danger of collision between the purchaser1 and adverse claimant, and deprives the debtor of all ability to defend his title to the property. It would never do to place the creditor, when he became the purchaser, in a better position than a stranger;, as it would enable him to purchase without risk, and would furnish a strong inducement to him to throw doubts over the title, resulting, inevitably, in a sacrifice of the property, to the prejudice of the-debtor.

If these considerations can not be deemed conclusive of the correctness of the rule adopted in the Pennsylvania and Ohio cases,, they must be considered as going far to sustain them; and they derive a strong support from the analogy furnished in private sales, of real estate without warranty.

I have alluded to these considerations, with no view of approving- or disapproving of the decision made in Vattier v. Lytle; but for the mere purpose of showing that the case now before us is neither within the terms or policy of that decision.

In cases like that, whether the appeal is made to a court of chancery, or to the equitable powers of the court that rendered the judgment, by a summary application, the party must stand upon the mistake he was under when he made the purchase; and the relief he demands, is a new execution to levy upon the property. The mistake furnishes the only ground of equitable interference, and the-future use of the judgment the only object to be attained. Now, let. it be granted, that considerations of public policy intervene to prevent the correction of such mistakes, and still this case is not. .affected. The present complainant has all the rights of Taggart, the original mortgagee; and ho comes into court with the mortgage, and demands an appropriation of the property pledged for the payment of the debt. That the debt existed, and was secured by the mortgage, is admitted; and the only question is, has it been paid, in whole or in part? The defendants, who have purchased the property for a nominal ^consideration, subject to this very mortgage, say that it has; but how ? They answer, by an abortive .attempt to appropriate the property to the payment of the judgment. That this proceeding did not appropriate it, is certain; and ■ equally so, that the defendants were in no way prejudiced by it. At the time it was pursued, Taggart was the undisputed owner of the legal title in fee, of this property.

The debt was due and unpaid, and nothing but the equity of redemption remained with the defendants. He had two undoubted .remedies, which he might have pursued conveniently; but he could have but one satisfaction. He could have brought an action at law for the debt, and levied his execution upon any property then belonging to John Dillon; or he could have filed a bill in chancery for the foreclosure or sale of the equity of redemption, whoever .might have been the owner of it. He pursued the first, and levied upon his interest, supposing John Dillon to have been still the -owner, when in fact he was not, and obtained nothing by the sale.

His assignee is now pursuing the other. To deny him relief, we must not only say that Taggart, by his mistake, lost all further .•remedy upon his judgment at law, but, also, that he forfeited his legal estate in the property, as well as the debt secured by it, and .all right to pursue this independent remedy. But the complainant .asks for no further remedy upon the judgment, and claims no right under it. If he did, aside from the main question, a very conclusive answer would be, that we have no power over the records •or process of the circuit court.

He asks us to correct no mistakes; but having an undoubted •■standing in this court, under an acknowledged head of equity juris■diction, he simply asks us to say, whether what has been done in the circuit court amounts to such a payment and satisfaction of the mortgage as to bar this remedy upon it. We have no hesitation in raying that it does not.

When the jurisdiction of a court of equity is established, and *its duty to hear and determine is unquestioned, it looks only to the substance of transactions, and is never embarrassed by the forms or complications in which they may be involved. After forfeiture, all the rights that Dillon or his grantees had were in equity;, and the only way in which they could redeem the land, or take the-legal title from Taggart, was by paying the debt — not in form only,, but in reality. To call the mistaken proceeding in the circuit court, by which nothing was accomplished and nothing obtained, in reality a payment of the debt, is in the face of common sense; and to permit it to operate as such, not for the benefit of the debtor even, but for those who have purchased his interest subject to the payment of the debt, and without paying, would hold the property without, consideration, and shock the moral sense. If they were here with a bill to redeem upon no more equitable grounds, no one would-suppose them entitled to any relief. And still, the case is not substantially different. The complainant is here with the mortgage- and evidences of indebtedness, apparently unsatisfied, and asking a sale of the equity of redemption. The burden of showing a satisfaction is upon the defendants, and is in no way changed from the fact, that the bill anticipates such a defense and seeks to avoid it. They stand upon the mere creature of a court of equity, and before they can ask its protection, they must do equity. They can not expect equity to suffer to be done in its name what it would not itself do, nor suffer them to obtain indirectly what it would not do for them-, directly. The case of Vattier v. Lytle was decided upon the-authority of the early cases in Pennsylvania. Yery recent decisions-of the Supreme Court of that state, make it unmistakably clear that no such injustice as extending the principles of that case to one like-the present, would be there permitted. In a case reported in 14 State R. 883, it is said that the mistake of the mortgagee in bidding-for the land, under a misapprehension of his right to apply the proceeds to the payment of the mortgage debt, would furnish a sufficient-reason for setting aside *the sale. And in Cummings’ appeal, decided in 1854, the same ruling was made, in a case in every way more doubtful than the one before us. The purchaser had two-claims, both due for the purchase money of the property, and both were in judgment, the largest of which was secured by mortgage, aDd the other not. He levied an execution, issued upon the smaller-judgment, upon the property, and bid it off, under the erroneous-belief that the sale would divest all liens and entitle him to apply the surplus to the payment of the mortgage debt. The court decidod, that if the sale was permitted to stand the surplus would belong to the mortgagors; but they held it to be the duty of the court below, either before or after confirmation, to give the purchaser relief, by setting the sale aside and discharging him from his bid. In these cases, it will be observed the mistake was one of law purely, and the relief given opened the judgment for a new execution.

Upon the whole, without expressing any opinion as to the power ■of a court of equity to vacate the satisfaction of a judgment, on account of the mistake of a purchaser, and the want of title in the debtor to the property sold, .we are clear that such a sale of mortgaged property to the mortgagee can not operate to deprive him of rights existing anterior to, and independent of, the judgment. That if such a mistake does not, on the one hand, lay a foundation for equitable relief, it does not, on the other, give any advantage to the debtor, when set up as a defense in a suit brought upon the mortgage, over which a court of equity has unquestioned jurisdiction.

We.are therefore of opinion that the amount for which the property was sold, upon the execution issued from the circuit court, should not be allowed to diminish the amount to be recovered in this suit.

Decree accordingly.