text:
    Jesse Keene v. Henry Mould.
    The bankrupt law of the United States is constitutional, and a plea of certificate of discharge, under that law, plead since the last continuance, is a bar to the further prosecution of the suit.
    It is not necessary to. state, in such plea, the time when the plea is filed. Such time appears sufficiently from the filing, and from the leave of the court to file it.
    This is an action of assumpsit, reserved in Muskingum county, and comes into the Supreme Court by appeal, from the court of common pleas.
    The action is assumpsit. The suit was commenced in the common pleas on December-8, 1841. The declaration was filed on April 25, 1842.
    The plaintiff counts against the defendant: Í. A®'maker of a due bill. 2. As indorser of a promissory note. 3. As guarantor of a promissory note. 4. For work and labor, goods sold and delivered, moneys lent and advanced, paid, laid out, and expended, had and received, and due upon account stated.
    The defendant filed his plea of non assumpsit on May 6, 1842.
    At the October term, 1843, of the Supreme Court,.leave was given to the defendant to plead his discharge, as a bankrupt, which had been obtained since the filing of his plea of non assumpsit; and, under such leave, the defendant accordingly filed his pica puis darrein continuance, setting forth that the plaintiff ought not further to have or maintain his aforesaid action thereof against him, because, he says, that, heretofore, to wit, on the 6th day of October, in theyear of our *Lord one thousand eight hundred and forty-two, at the district court of Ohio, to wit, at Zanesville, in Muskingum county aforesaid, the district court of the United States within and for the district of Ohio, in the exercise of its jurisdiction, in matters and proceedings in bankruptcy, did duly make and enter a certain decree upon the petition in that behalf before them, duly filed by the said defendant, in said district court; and in and by said decree, it was, by said court, by virtue of an act of the Congress of the United States, entitled “ an act to establish a uniform system of bankruptcy throughout the United States,” approved August 19, a. r>. 1841, ordered, decreed, and allowed, that the said defendant bo, and he accordingly was, by such decree, fully discharged of and from all his debts, owing by him. the said defendant, at the time of the presentation, in said district court, of his petition to be declared a bankrupt. And it was, thereupon, then and there, by the said district court, in the further exercise of its said jurisdiction, in matters and proceedings in bankruptcy, further ordered and decreed, that the clerk of said district court should duly certify such decree, under the seal of the said district court, and deliver the same to said defendant when demanded.
    And the said defendant further avers, that, afterward, to wit, on the 8th day of October, in the year of our Lord, one thousand eight hundred and forty-two, at the said district court of Ohio, to wit, at Zanesville aforesaid, in Muskingum county aforesaid, the said decree so certified as aforesaid, being then and there demanded of said clerk of said district court, by said defendant, was, by the said clerk, then and there duly delivered to said defendant, which said discharge and certificate the said defendant says were duly granted to him, by the said district court, in manner and form as aforesaid, and in conformity to all the requisites and provisions of the act entitled “ an act to establish a uniform system of bankruptcy throughout the United States,” as by the said certificate, so sealed as aforesaid, which said defendant now brings here into court, will more fully appear.
    *And the said defendant further avers, that all the said several supposed debts and contracts, in the said declaration mentioned, as the same are therein alleged to be due from the said defendant to the said plaintiff, were and are debts and contracts, owing and made by said defendant, before and at the time of such presentation, in said district court, of his said petition to be declared a bankrupt as aforesaid : and the same were all provable under the act of Congress aforesaid, to wit, at Zanesville aforesaid, in Muskingum county aforesaid. And this the said defendant is ready to verify; wherefore, he prays judgment if the said plaintiff ought further to maintain his aforesaid action thereof against him, etc.
    To this plea the plaintiff demurs, and' assigns, for causes of demurrer :
    1. That the plea ought to have been pleaded as a plea puis darrein continuance; whereas, it is pleaded merely to the “further maintenance” of the suit; and that the defendant has omitted to state, in the commencement or elsewhere, the time when he pleads the same.
    2. That the plea shows that the matter pleaded arose before the last continuance.
    3. That the defendant has not shown, by said plea, the various steps or proceedings by which he finally obtained his certificate.
    4. That the plea does not show but that the causes of action, set forth in the declaration, may have arisen prior to the pass&go of the bankrupt act. '

      5. That the bankrupt act is unconstitutional and void, so far as it authorizes the debtor’s discharge upon his own application.
    6. That, in so far as that act authorizes the discharge of the debtor from debts contracted before its passage, upon his own application, it is unconstitutional and void.
    7. That the plea is, in other respects, uncertain, etc.
    G-. N. Cuming, for plaintiff,presented the following authorities: *1 Chit. PI. 698, 699; 3 lb. 1243; 1 Bac. Ab. Bank. 552; Bankrupt Law, sec. 3.
    Charles C. Convers, for defendant, as to the form of the plea, submitted the following authorities:
    Kemp’s Lessee v. Kennedy, 5 Cranch, 185 ; 6 Ib. 267 ; McCormick v. Sullivant, 10 Wheat. 199; Leland v. Kingsbury, 24 Pick. 315; Mitchell v. Greoter, 2 Story, 648; Tower v. Cameron et al., 6 East, 413; Harris v. James, 9 East, 82; Stedman v. Martinant, 12 East, 664; 1 West. Law Jour. 396; Ludin v. McCrea, 1 Wend. 228 ; Morgan et al. v. Dyer, 10 Johns. 161, and 5 Law Rep. 259; and as to the substance of the plea, involving the constitutionality of the bankrupt law, 1 How. (U. S.) 277, and 2 lb. 202.
   Avert, J.

The plaintiff by this demurrer objects, first, to the form of the plea, but he strikes also at the foundation of the defense ; claims that the law on which it rests is void, and that the court shall so determine in his behalf.

If, in the progress of a cause, a question of constitutional law necessarily arises, bearing upon the rights of litigant parties, it will, of course, be met and determined. It is not, at this late day, a matter of debate whether the courts of this country are to decide upon the binding obligation of a law, and to refuse to give effect to its provisions, if opposed to the constitution under which it was enacted.

The plaintiff asserts that the' law reaea upon in this piba is not authorized by the constitution of the United States. Under that constitution it is declared that laws which shall be made in pursuance thereof shall be the supreme law of the land; that courts shall be established, and that their judicial power shall extend to all cases arising under the constitution and laws of the United States. The ultimate jurisdiction over the question involved in this case resides, then, in these courts of the United States. They have exercised the jurisdiction and decided upon all the questions raised here, and *have pronounced the bankrupt law to be constitutional. This law, therefore, if the defendant brings himself within its provisions, will furnish him a complete defense.

The next inquiry is, has he complied with the forms of law in presenting his defense?

It is said that he should have filed a plea puis darrein continuance. This he has done, employing the very words used in what are regarded as approved forms. Nor is it necessary, according to the same authority, to state the time when he pleads. Further, it is said that the matter of the plea arose before the last continuance. If a penalty so severe could ever bo inflicted for omitting to file such a plea in time, it would not be after the proper court had given leave to file it.

It is objected also that the various proceedings by which the bankrupt obtained his certificate are not set out in the plea. To this objection it is sufficient to reply that the act which gives the defense points out itself what shall constitute a plea in law, and the requirements of the act, in that particular, have been complied with in framing this plea.

The seventh and last cause of demurrer specified is the general one, that the plea is, in other respects, insufficient.

We have not discovered any of the defects complained of. On the contrary, we regard the plea as containing all the material and formal averments under the act, and that it is to be avoided, if at all, by facts set up in a replication.

Demurrer overruled.


source: Caselaw Access Project

author: *Avery, J.

license: Public Domain

text:
    Thomas J. Spiller v. Nial R. Nye’s Lessee.
    The rule that monuments control course and distance, is subject to exceptions.
    The proceedings of a sheriff, at the time of levy, and preparatory to the making of it, may be proved by parol.
    The intention of the sheriff, in passing title to the debtor’s land, to levy upon a given quantity, may be inferred as well from the law regulating his duty, as from the character of the description given in the deed.
    *This is a writ of error, directed to the court of common pleas of Meigs county.

      The action below was ejectment. The facts of the case, and the questions presented for the consideration of the court, are disclosed in the following bill of exceptions
    Be it remembered that, on the trial of this cause,-the plaintiff having given in evidence the record of a judgment rendered in the court of common pleas of Meigs county at the October term, 1842, in favor of Hampton,' Smith & Co., against the defendant, an execution issued thereon, and levied upon lands by the following description : “A part of fraction 3, in town 2, and range 13, in section 9, in the Ohio Company’s purchase; beginning about fifty-eight rods east of the southwest corner of said fraction, at the southeast corner of a tract owned by Lewis S. Nye; thence north, twenty-three degrees west, eighty-eight rods; thence east ninety-three rods; thence south eighty-four rods, to the south line of said fraction; thence west about twenty-seven rods, to Fugate’s corner; thence north sixteen rods; thence west twenty rods; thence south sixteen rods, to the south line of said fraction; thence west twenty rods, to the place of beginning, containing forty acres, more or less,” with a return of sale to the lessor of the plaintiff, and confirmation thereof, and a deed from the sheriff, pursuant to said levy. The defendant then called Thomas Smith, who was the sheriff who made the levy and sale, who testified that, after receiving the execution, he went to the recorder’s office to get a description of the real estate of Thomas J. Spiller; that he took the same to M. Heckard, Esq., a sui'veyor, to calculate the length of lines, so as to embrace forty acres off the west end of Spiller’s tract, lying in the fraction ; that Heekard made such calculation, and he then went on the land of Spiller, in the west end of said fraction, and made a levy, in accordance with the lines given to him by Mr. Heckard, so as to embrace forty acres; that before making the levy, learning that Fugate owned a tract of about two acres in *said fraction, he went to the recorder’s office to ascertain whether said Fugate’s tract would fall within the forty acres or not; that the Fugate tract is, in fact, described in the records as being seventy rods from the southeast corner of Lewis S. Nye’s land, but that, at the time of taking said description from the records, he read twenty, instead of seventy, which would bring, said Fugate’s tract within the forty acres; and, accordingly, in making the levy he referred to Fugate’s corner, with a view of running round the Fugate tract, and excepting it ont of the levy, supposing it would come within said forty acres; that at the time of the levy the Fugate tract was uninclosed, and the location of it was unknown to him, except as he had ascertained from the records, and that he was entirely mistaken as to its location, it being, in fact, as he has since ascertained, seventy rods from the aforesaid corner of Lewis S. Nye, and without the forty acres which he intended to levy upon; and it having been further proved that to extend the second line called for by the levy, so that a line running from thence south to the fraction lino would intersect said fraction line twenty-seven rods ■ east of Fugate’s southeast corner (as that corner has since been found to exist), said second line would be one hundred and forty-nine rods and forty-eight hundredths in length, instead of ninety-three rods, as called for in the levy, and the tract embraced would contain sixty-four acres; and it having been further proved that by running said second line ninety-three rods, as called for in the levy, thence south to the fraction line, thence west to the place of beginning, so as to exclude the land claimed by the defendant, the tract embraced within said lines will contain forty-one acres; and it having been further proved that the southeast corner of Fugate’s tract was marked by a small stake at the time of the levy, although the same was not seen by the sheriff, or its location known to him at the time of the levy, and the parol evidence hereinbefore recited having been permitted to go to the jury, subject to any exceptions as to its competency, and the counsel for tho plaintiff having objected to all of the same, ^except that which proved that there was such a corner as Fugate’s corner, and that there was a stake standing at the same, the counsel for'the defendant thereupon moved the court to instruct the jury:
    1. That if they were satisfied, from the evidence, that Fugate’s corner was inserted in the levy, under a mistake as to its location, and is, in fact, inconsistent with, and repugnant to, the other points, courses, ,and distances called for, they may reject said Fugate’s corner altogether, and be governed by the other courses, distances, and objects called for in the levy and deed; and that it is competent to prove such mistake by parol.
    2. That if they find the call for Fugate’s corner to be entirely inconsistent with, and repugnant to, the courses and distances called for in the levy and deed, and if, by rejecting said Fugate’s corner, the courses, distances, and objects called for, will make' a consistent boundary, embracing the identical lands intended to be levied upon and sold, they may reject said Fugate’s corner altogether, and be governed by the other boundaries called for.
    3. That, although it is a general rulo, yet it is not an invariable one, that fixed objects, or monuments, called for in a deed, must control the courses and distances called for; but if any such object or monument is so repugnant to the other calls as to satisfy the jury that it was inserted in the levy and deed through mere inadvertency or mistake, they may reject such object or monument, and be governed by the other calls.
    4. That a fraction or section line is a definite call in a deed, and that the original surveyed line is meant and intended thereby, and that course and distance would have to yield thereto if in conflict; that where there is no call or monument named as to the termination of the line, the distance from an agreed starting-point is to be deemed the precise length of the boundary line.
    5. That where a tract of land is described in a deed as bounded by four lines, if the first three lines can be clearly *ascertained, by the description contained in the deed, they are to be taken as the true lines, and if the fbui’th line has a call that is inconsistent with itself, or is repugnant to the other lines, then such call should be rejected.
    6. That where the intention of the parties can bo discovered by the deed, the court -will carry that intention into effect, if it can be done consistently Avith the rules of law ; that a deed is an instrument to effect the intention of the parties thereto, and where the descriptive words are Avholly without ambiguity, and are followed by a clause repugnant, this clause must be rejected.
    7. That AA'here a description is given, which has not acquired a strict legal construction, or a boundary is referred to, Avhich is variable, parol evidence is admissible, in order to ascertain tho meaning and construction of the deed.
    8. That where land conveyed is described as running a certain distance by measurement, to an ascertained line, though without a visible boundary, such line is of itself a monument which will control the admeasurement, and fix the extent of land conveyed.

      Which motion the court overruled, and all which instru'etions the court refused to give, but instructed the jury:
    1. That if they find from the evidence, that Fugate’s corner, called for in the sheriff’s deed to the plaintiff, is; .in fact, in the south line of the said fraction, No. 3, and that the same it identified by any fixed monument, natural or artificial, such as a stake or marked tree,, that then such corner can not be rejected ; but that the lines which call for course and distance merely, without an object at their termini, must be so fun as to give effect to the call for Fugate’s corner.

      2. And that, in so modifying the calls for course and distance, the north lino of said tract, which calls to run east ninety-three poles, should be extended on the north line of the tract to a point due north of that point in the south line, which is twenty-seven rods oast of Fugate’s southeast corner; and from the terminus of such extended line, a line *should bo run south to the last-named point in said south line of the fraction, and thence west, following the call of the plaintiff’s deed to the place of beginning.
    And the court further instructed the jury that they must consider, as ruled out of the case, all that parol testimony hereinbefore recited, except that which tended to prove that there was such a corner as Fugate’s corner, and that there was a stake standing at the same.
    To alt which rulings and instructions by the court, the defendant, by his counsel, excepted; and jmays the court to sign and seal this, his bill of exceptions, and that the same may be made a part of the record in this cause.
    J. J. Coombs, for plaintiff in error, submitted the following authorities:
    1 Greenl. Ev. 343; Beaumont v. Fell, 2 P. Wms. 145; Thomas v. Thomas, 6 Term, 671; Hickox v. Hickox, 5 Mees. & Wels. 363; Jackson v. Clark, 7 Johns. 218; McNaughton v. Loomis, 18 Johns. 81; S. C., 19 Johns. 449; Boardman v. Reed, 6 Pet. 344; Middleton v. Perry, 2 Bay, 541; Waterman v. Johnson, 13 Pick. 266; Eliot v. Thatcher, 2 Met. 44; Crafts v. Hibbard, 4 Met. 452; Miller v. Travers, 8 Bing. 244; 1 Greenl. Ev. 328; 1 M. & S. 299; Wheeler v. Randall, 6 Met. 529; McCoy v. Galloway, 3 Ohio, 284; Davis v. Rainsford, 17 Mass. 207; Shipp v. Miller’s Heirs, 2 Wheat. 316; Preston v. Bowman, 2 Bibb, 497; Call v. Barker et al., 3 Fairf. 325.
    John Welch, for defendant in error, relied, for his defense, upon the following authorities:
    1 Greenl. Ev., secs. 227, 281, 282, 286, 288, 300; 19 Johns. 449; Barn. & Ald. 43, 51; 8 Bing. 224; 6 Pet. 328; Gates v. Lewis, Ner. 511; 7 Wheat. 7; 3 Gill & Johns. 142; 6 Cranch, 148; Conn. 335; 1 U. S. Dig. 474.
   *Avery, J.

The charge of the court gives a construction to the deed, by which the north line,.that is directed to be run ninety-three rods, is extended to 149 rods and a fraction. The south line of the tract is extended in a still greater proportion; and the tract embraced, called forty acres, is made to contain sixty-four acres.

Was this construction right?—is the question. If followed by the jury, would it convey to the plaintiff no more land, than, under a just construction of his deed, belonged to him ? This, according to the evidence, is a sheriff’s deed. He is a public officer, and all his proceedings, under an execution, are regulated by public law. When he levies upon a tract of land, he is obliged to cause an appraisement of it, under oath, to be made in this manner; fixing, as near as practicable, the true value of the tract. He can not pass the title to this land, unless the bid at public sale amounts to a given proportion of that appraised value. That he should be as exact as practicable then in his quantity, when, as here, there is nothing throughout the tract to show any difference in the quality of the land, is an obvious duty, and therefore may be fairly enough said to be his intention.

It will not be presumed, that, in selling a debtor’s land upon execution, he can be indifferent to the wrong of selling more than sixty acres for forty. He must have meant, therefore, to levy upon forty acres, to appraise forty, and to sell the larger quantity. It is be borne in mind, at the same time, that there is' no proof in the case, that this description in the levy and deed was the result of actual survey, or that any of the lines were run upon the ground till after the sale. The description of the tract itself seems to look to a fixed quantity to be struck off in future, rather than to any survey already made; for, by its terms alone, without ever going upon the ground, the quantity can be determined without mathematical exactness. Tho starting point is the only one fixed with entire certainty—except of course and distance. All tho lines, after the first, run to cardinal points of tho compass; and while the linos and angles, etc., are so exactly described that a surveyor can tell to a fraction the quantity, even ^Fugate’s corner so much relied upon to fix other corners and lines, has not, if you take the language of the description, a fixed location itself. It is to be found by running about twenty-seven rods west of a previous corner. This uncertainty, it is true, would not be permitted to disturb an actual boundary or monument, in ordinary cases, and is noticed here, only as it may show the intention.

Thus, when it is remembered who is the grantor in this deed, whence he derives his right to sell the land in controversy, and by what directions he is to be guided, there is strong reason for believing that the description was so drawn as to make sure of a given quantity, and was not drawn after any actual survey.

But wo do not admit that any principle of established law would be violated, if we allow the parol proof of certain facts rejected upon the trial. Tho proceedings of the sheriff, at the time of the levy, and also preparatory to the levy, wore, as we think, the proper subjects of proof; ’and we think it was competent to show that the records were examined; that a surveyor was called upon to ascertain what length of lines would be necessary to embrace the specified quantity of land; and, when afterward the lines wore run upon tho ground, that, by pursuing one construction, the tract would be much larger than the designated quantity, and by following others, would approach more nearly to it; that tho Fugate tract was uninclosed, and though there was a fixed corner, yet it was not conspicuous; that the sheriff went upon the land before the levy, and to show, also, that no actual survey was made.

If the sheriff, at the time of the levy, had made a real survey of tho land, and had established any monuments, or marked the lines, this could have been given in evidence, and would have been, in our courts, controlling evidence. In such a case, Fugate’s corner, if not found in the survey, would be rejected.

But whether Fugate’s corner is to b e rejected or not, we do not, in the case now before the court, intend to decide; ^because, upon viewing the whole subject, we think a court of chancery is the more appropriate ti’ibunal to exercise the jurisdiction. There, it is veiy clear, all the conflicting rights of the parties may be settled. There is another position taken in the charge which we consider erroneous. It is in extending the second line of the survey beyond its given length without an adequate cause. The reason which operated was, undoubtedly, to follow the description in the deed, so as to run the third line its designated course south, at right angles with the second, and from a point that would cause it to strike the south line twenty-seven rods, as required by the deed, cast of Fugate’s corner.

The objection to this construction is, that the monument, Fugate’s corner, which causes all the difficulty in the case, is here not permitted to exert its undoubted power, and control the course and distance of the single line directed toward it. Even if the Fugate corner is to remain, we decide that the third line must start from the end of the second, as described, and run diagonally across the tract, till it reaches, in a straight lino, the point required, twenty-seven rods east of Fugate’s corner. This construction, upon the trial, besides its violation of rule, greatly increased the size of the tract—too large before. For this reason, therefore, the judgment will bo reversed, and for the further error of rejecting the parol testimony, as above stated.

Judgment reversed.


author: Read, J.

text:
    Jacob Turney v. Walter Yeoman and others.
    A defective description of land, listed for taxation, can not be cured by the description and recitals in the tax deed, nor by other proof.
    A tax deed, under the statute, is only prima facie evidence of title, and its validity may be destroyed by showing that the requisitions of the statute authorizing the sale have not been complied with.
    To list land, as a specific number of acres, in an original survey, without specifying in what part of such survey, is too vague; and a sale for taxes, by such description, will pass no title to the purchaser.
    *This is a bill in chancery for partition, reserved in Fayette oounty.
    The papers show that survey No. 988, of 1,000 acres, was patented by the United' States to Hector McNcal, Joseph Watkins, and Robert Watkins, as tenants in common, and not as joint tenants; and the complainant claims the undivided third part of said survey, being the part belonging to McNeal, by virtue of a purchase at a tax sale of lands forfeited to the state, for non-payment of taxes, on July 8, 1833. The land was listed for taxation as 333 acres, in an original survey-of 1,000 acres, without specifying in what part of the survey.
    Richard Douglass, for complainant.
    Swan & Andrews, for defendants.
   Read, J.

The only question necessary to be considered in this caséis, whether the lands sold were sufficiently described in the listing for taxation to pass the title under the sale. The listing is for 333 acres, in an original survey of 1,000, without specifying in what-part of it. It is sought to cure this defect of description in the listing, by the description and recitals in the deed, describing the land as the one equal undivided third part of the original survey, and reciting that it was held by Hector McNeal, Nathaniel Massie, and David Shields, as tenants in common. The original survey was patented to Hector McNeal, Joseph Watkins, and Robert Watkins, as tenants in common. The interest claimed, under the tax deed, is that of Hector McNeal. If the descriptions and recitals in the tax deed were of absolute force, and could not be contradicted, the complainant would be entitled to the relief sought, under the statute, which authorizes the purchasers at tax sale, of an undivided-interest, to have partition among the tenants in common. But the late decision of this court, which gives effect to tax deeds, without other proof to support them, by ^virtue of the statute, which declares they shall be prima facie evidence of title, does not prevent such deed being questioned and set aside, by showing that the requisitions of the statute, authorizing and prescribing the mode of tax sales, had not been complied with. It merely changes the onus of proof. If the description in the listing, then, be not sufficient, it may be shown to destroy the deed ; nor can such defect be cured by the description and recitals in the deed, or other proof. The land listed for taxation must be described with sufficient certainty to point out what particular land—and the description in the deed is limited to the description in the listing. Now, it might be contended, with much reason and force, that it being the duty of the owner to list his land for taxation, he ought not to bo permitted to question a tax deed, by showing that ho failed to perform his duty, by giving a wrong or too vague description. It would have been well in the first instance, perhaps, to have hold this doctrine, but the opposite principle has been always observed, and been too frequently asserted to be disturbed, except by legislative interference, which would give it only a prospective effect.

But, it is contended that the land sold for taxes, in the present instance, actually was an interest held among tenants in common, and that, on proof of that fact, the purchaser is entitled, under the statute, to his relief. This is not the question. The point is, was the undivided interest, in the original survey, described with sufficient certainty, in the listing for taxation ? It is not'described in the listing as land held in common—not as an undivided interest of 333 acres in the original survey of 1,000—but simply as 333 acres, somewhere in the original survey of 1,000, without specifying in what part of such survey. It is precisely the same as the case of Lafferty’s Lessee v. Byers, 5 Ohio, 458. That was a listing of 73 acres, in a survey of 170. It was held not to be sufficiently certain, and numerous decisions support the same principle, and it has never been otherwise decided.

*We hold, therefore, that the tax deed is invalid, because the land was not sufficiently listed for taxation. The statute, which authorizes a purchaser of an interest in land, held in common, at tax sale, to have partition among the tenants., was not designed to aid imperfect description in the listing.

There was another objection urged to the validity of the deed, which, from the view now taken, it is not necessary, for the purposes of this case, to consider.

But Yeoman is entitled to the relief, under the statute, furnished to purchasers at tax sales, to recover back the money paid.

Bill dismissed.


author: Avert, J.

text:
    William Elliott and another v. Elmore, Armstrong, and others.
    If sureties neglect, when judgment is rendered, to cause the entry to he made> that they are sureties, as required by the statute, chancery will not compel the judgment creditor to exhaust first the property of the principal.

      Two executions of the same kind may be issued on the same judgment; and courts of law, having the authority to restrain any abuse of process, on the part of the judgment creditor, equity will not interfere.
    This is a bill in chancery, reserved in Mercer county. The facts of the case aré disclosed in the opinion of the court.'
   Avert, J.

The bill in this case allegés that two of the defend-

ants had recovered a judgment in the Supreme Court, in Mercer county, against John Elliott and these petitioners, for the sum of about $700. Upon this judgment an execution was issued to the sheriff of Allen county, and land of John Elliott, one of the defendants in execution, was there levied upon. The land of Elliott, so taken, it is asserted in the bill, is sufficient at two-thirds of its appraised value, to satisfy the debt and costs. But while *this levy is subsisting, these defendants, Armstrong and Bockly, cause another execution to be issued on the judgment; and this is directed to the sheriff of Mercer county. The bill sets forth that the above-named John Elliott is the principal, and that these complainants are sureties only, in the debt upon which the judgment was rendered ; and sets forth, further, that said John Elliott has other lands in Allen county, which he holds in fee simple and unincumbered. It also states that the said judgment creditors are about to cause a levy upon the lands of the complainants, and prays an injunction.

The levy upon the land in Allen county is admitted in the answer ; but it is denied that there is a sufficiency to satisfy tho judgment. The answer also admits the issuing of the second execution, and that the complainants were only sureties; but states that no notice of that fact was entered upon the record, when the judgment was taken. The complainants assert that, as sureties, they have a right to force the judgment creditors to collect their claim from the principal, when they have property of his, sufficient for that purpose, levied upon; that the property of the principal must be exhausted before that of the sureties can bo taken in execution. It is certain that our law has provided, in behalf of the sureties, that their property may be exempted from execution till the property, personal and real, of the principal debtor shall be exhausted. This law is found in the act regulating judgments and executions (Swan’s Stat. 482), where it is provided that if it shall appeaf to the court, by parol or other testimony, that one or more of the persons bound, signed as security for his co-defendant, the clerk, in entering the judgment, shall certify which of the defendants is principal and which are sureties. In such case the execution to be issued must contain directions to proceed, first, against the property of the principal; and for want of property of the principal, then to proceed against the bail. A special form of execution is thus given to suit the case. But it can only be issued by the clerk, when ho finds a proper entry in *the record to justify it; and as the defendants in this judgment had neglected to secure the. proper entry, it was the duty of the clerk when execution was ordered, to issue it in the common form prescribed in the same act, against the judgment debtors. In this form the sheriff could see nothing to indicate any difference between the defendants ; all would appear to be equally liable, and he would be authorized under his writ, to proceed against all. The sureties, it is evident, then, in this case, have no remedy at law. Having lost at law, and entirely by their own neglect, the privilege designed for them, are they entitled to relief in a court of chancery? Certainly in that court sureties have long been favorites, and they have found protection and aid there in multitudes of cases, when other courts could furnish none. But amongst all the forms of relief, it is believed that none is provided for a case like the present. There is no case where, after a joint contract to make payment, on a given day, one party could have the aid of a court to delay the creditor and compel him to proceed against the other alone, barely because that other was the principal debtor.

And though, under a general law,.the right is now given to all sureties to postpone the creditor; yet, as the mode by which it may be done is pointed out, and that a very easy mode, if the privilege has been treated as of no moment, and the means of securing it neglected, a court of equity can hardly be expected to interfere. There were two executions in this case, of the same kind, as it appears, issued upon this judgment; but they were sent into different counties. No express provision of the statute is violated by such a proceeding; and it may be impoi'tant, sometimes, in order to secure the rights of a creditor. Under the supervision -of the court, whose process is so employed, and subject as it is, at all times, to be set aside, by the same court, when improperly issued or used, no objection is perceived to such a proceeding, as would call for the exorcise of chancery power.

Crane & Davies, for complainants.

John Welch, for defendants.

In this same statute regulating judgments and executions, there is express power given, while there is a subsisting- levy *on the debtor’s property, to make a further levy upon property, if that named in the venditioni exponas is insufficient. But the benefits of this provision are confined to the county in which the first levy was made. Allowing two executions, of the same description, to bo issued for different counties, under the control of the court, would only be extending the benefits to other cases having equal claims to them.

It is the opinion of the court, therefore, that there is not any equity calling for their interference. The injunction is consequently dissolved, and the bill dismissed.


author: Ayery, J.

text:
    Julius A. Penn and others v. Jane Cox and others.
    If A. devise land to B., liis brother, and to 0. the wife of B., and 0. dies without issue during the life of B., her interest in the land will descend to her brothers and sisters, though not of the blood of A., and not to her husband.
    This is a bill in chancery for partition, reserved in the county of Clermont.
    The bill sets forth that William Brown, Qn May 5, 1835, died seized of the land in the bill described, and that he left a will, in which he devised the same premises to John Brown and Sally Brown his wife, equally in fee simple; that after the death of William Brown, the devisees took possession of the land and occupied it till the death of Sally Brown, which took place in the year 1836; that John Brown, the surviving husband, remained upon the land, appropriating the proceeds to his own use till Ms death, on March 1, 1845; that John and Sally Brown loft no children, and never had any born alive during the marriage; that Sally Brown left three sisters—RebeccaBurns, one of the complainants; Anna Crump, wife of Joseph Crump; and Jane Bishop, wife *of Richard Bishop—her only heirs at law; that on February 15, 1841, John Brown, by his will, devised the southern half of land to said Jane Cox, one of the defendants; that he appointed Alpheus Tribble and William B. Head executors thereof, and directed them to sell the northern half and apply the proceeds as therein specified; that two of the sisters of Sally Brown, Anna Crump and Jane Bishop, with their husbands, sold and conveyed all their interests in the land to Penn the complainant; that the said executors took possession of the northern half and rented it out; that Jane Cox took possession of the southern half and still retains the same. The bill claims that the rent of half the land occupied by John Brown after the death of his wife, and till his own death, must be paid by his executors; and that for the rent since hi's death, the defendants, Jane Cox, and Tribble and Head, executors, are liable. It is further charged that the defendants threaten to sell the land, and that they refuse to have it divided' or surrendered up, or to account for the rents and profits.
    Prayer, that the land be divided among the parties according to their several interests, and that an account be taken of the rents and profits since the death of Sally Brown, and that a decree be rendered against the defendants for the amount.
    Answers wore filed by the defendants and testimony taken, but nothing is presented, in either answers or testimony, changing materially the facts alleged in the bill.
    Marshall & Penn, for complainants.
    Clark & Fisher, for defendants.
   Ayery, J.

This is not a proceeding in form, under the statute authorizing partition, but a bill in chancery for partition ; and it is clearly a proper case for the exercise of -chancery jurisdiction.

The first question to bo examined is, to which of these parties, complainants or defendants, belongs the title to the *land. It was devised by William Brown to John Brown and Sally, his wife; and it is the settled law in Ohio, that in such a case, on the death of the wife, her legal heirs become tenants in common with the surviving husband. Sergeant v. Steenberger, 2 Ohio, 305. Who, then, as heirs, take the estate of Sally Brown? The complainants assert that it descended to her sisters; and the defendants, that at her death it vested in her husband. The law of descents must determine this question. And this is found in the act regulating descents and the distribution of personal estate, and an amendment in Swan’s Statutes, pages 288 and 287. That law, as applied to the case, secures the land to the defendants, if William Brown was an ancestor of Sally Brown ; because it comes by devise from said William to Sally Brown, then passes to John, his brother, as the first person capable of inheriting under the provisions of the statute, and afterward to these defendants, who aro the owners of John’s interest. If William Brown was not an ancestor of Sally Brown, then the complainants have the title; for, if it came not by such devise, it passed under the same law to her sisters, she having no children, and one of these sisters and the grantee of the other two are complainants. We understand the “act regulating descents and the distribution of personal estates ” as embracing tho whole subject, and intended to provide for all possible cases. The act declares in tho first section, how lands shall pass, when any person shall d'ie intestate, having title by descent, devise, or gift, from any ancestor; and then, in the second section, what direction shall be given to the estate, in case it come not by deseept, devise, or gift. We think that the design of the act is clear, and that it will admit of but one construction, and that brings the case under tho second section.

This subject was fully considered in the case of Brewster v. Benedict et al., 14 Ohio, 368; and in the same case also was determined the meaning of the term ancestor. We now follow and reaffirm the principles of that decision, determining that William Brown was not the ancestor of *Sally Brown, and that her sisters, though they were not related to the devisor, take the estate. The complainants are therefore entitled to a partition. As, however, John Brown owned the undivided half of the whole tract, and devised the south half to the defendant Jane, and the other half to the executors to be sold, the partition will be made with a reference to the distinct interests of the defendants.

We do not consider in this bill, seeking a partition, the prayer for an account of the rents and profits. If the complainants suppose they have a right to recover them, the remedy must be sought in separate proceedings. Here is a case where the proprietor of an estate, under the promptings of a natural affection, at his death devises that estate to his brother, and to Sally Brown, a stranger to his blood, because she is the wife of that brother. Her husband would have taken the whole, without doubt, either by devise or by doscent, if Sally Brown bad died before the testator; and it will be difficult to prove, in the actual circumstances of those brothers, that ho would not have had a just claim to it. After the death of his wife he continues to reside upon it for years, regards it as his own, and so, doubtless, under the law, did these heirs of Sally Brown ; and finally he disposes of it by will, among the relations of his blood. In such a case the claim for rents, if admitted, is one of strict right, not calculated to awaken, if such a thing were allowable, much sympathy in the court. The bill, in this feature of it, is considered by the court as liable to the charge of multifariousness, and for this cause, as to that part of it, is dismissed.

Decree for partition only.


author: Hitchcock, J.

text:
    *Alexander Duke v. William S. Thompson and others.
    While the legal title to land remains in the government, the statute of limitations does not run against one who holds a certificate of survey or of purchase.
    The assignment of a land-warrant or certificate of survey, in the Virginia military district, may he presumed in favor of a person in possession of land in said district, from great lapse of time, in connection with evidence of payment made by the person in possession, or those under whom he claims, to the rightful owner.
    This is a bill in chancery, reserved in the county of Hamilton.
    The bill sots forth that the complainant, and one Nathaniel Massie, were entitled to 400 acres of land, as tenants in common, lying in the county of Hamilton, on the east fork of the Little Miami, between the Miami and Scioto rivers, surveyed in the names of William Fowler and Nathaniel Wilson, on September 11, 1792—■ being No. 2,208—200 acres of which wore assigned by said Wilson to James Duke, who assigned the same to complainant. The remaining 200 acres were assigned by said Fowler to said Massie, in his lifetime. That the same was'granted to the complainant and the legal heirs and representatives of the said Massie, by patent, bearing date August 30,1841, as tenants in common, by the boundaries set forth in the bill. The complainant charges that he is the owner of a moiety of said 400 acres, and'makes defendants the heirs of Nathaniel Massie and certain others in possession of the property. He calls lor answers under oath; and asks that the defendants may set forth their respective titles, and prays a partition of said 400 acres ; and that one moiety thereof may be set apart to him, or that the land may be sold and the proceeds divided.
    The heirs of Massie, and several other defendants, have answered and disclaim all interest.
    Those defendants who have not disclaimed, have answered *and claim title to the lands in controversy, in separate and distinct parcels, under two conveyances from Nathaniel Massie; the first of which was made by said Massie to Jacob Wickorsham, on April 2, 1796, covering 200 acres; and the second, to Ichabod B. Miller, bearing date December 5, 1799.
    These deeds of conveyance contain covenants of warranty ; and were executed, as defendants claim, while Massie was in possession of the land. They insist that they, and those under whom they claim, have been in possession more than fifty years; and that they are protected by the statute of limitations and by lapse of time. They further claim that Nathaniel Massie was justly and equitably entitled to the survey in controversy.
    To these answers replications wore filed and testimony has been taken.
    M. Marshall, for complainant:
    The statute of limitations does not apply in this case. No action at law or equity could have been maintained upon an entry and survey in the Virginia military district, until a patent had been issued and a title passed from the government to the complainant, or some person claiming adversely. May’s Heirs v. Hill, 5 Litt. 313; Stewart v. Jackson, 1 Marsh. 59; Brescoe v. Prewett, 4 Bibb, 370; Hart’s Heirs v. Young, 3 J. J. Marsh. 415; Dresback v. McArthur, 7 Ohio, 146, pt. 1; Fowke v. Darnall, 3 Litt. 318; Stewart’s Lessee v. Mason, 3 Har. & Johns. 531.
    The complainant contends, also, that no limitation or lapse of time can operate so as to affect title to land whilst.it remains in the government. Harbock v. Jackson, 1 Comst. 135; Hart’s Heirs v. Young, 3 J. J. Marsh. 415; Wallace v. Miner, 7 Ohio, 252, pt. 1 ; Cincinnati v. First Presbyterian Church, 8 Ohio, 298; Chiles v. Colk, 4 Bibb, 554; Brescoe v. Prewett, 4 Bibb, 370 ; Kemp v. Commonwealth, 1 Hen. & Munf. 85; Amos’ Heirs v. Commonwealth, Ib. 67; Stoughton v. Baker, 4 Mass. *528; Johnston v. Ir-wine, 3 Serg. & Rawle, 292; Allard v. Labank, 3 Martin, 294; United States v. Hoar, 2 Mason, 312; Ward v. Bartholomew, 6 Pick. 409 ; Hill v. Dyer, 3 Greenl. 441; Johnson v. McIntosh, 8 Wheat. 571.
    Lapse-of time is not sufficient to authorize the court to presume a transfer of title from the complainant to the occupant. Wallace v. Miner, and Dresback v. McArthur, above cited; and Lessee of Stark v. Smith, 5 Ohio, 455.
    Storer & Gwynne, Charles Fox, and William M. Corry, for defendants.
    It is contended the defendants have the equitable title, which is a sufficient defense to a partition suit.
    We insist, in this case, that it must be presumed that the right and title of James Howard, as well as that of William Fowler, was sold to Nathaniel Massie.
    What are the prominent facts of the case? As Ion# ago as the year 1796, Nathaniel Massie assumed to be the owner of the property in question, and conveyed the same to various purchasers. The conveyances were recorded; the property was built upon and improved at once, so that any person having an adversé interest in the land would have forthwith presented his claim. The interest of Howard might have passed by a mere assignment or contract in writing, or even by a verbal contract acted upon.
    It was not until" 1841 that the plaintiff, claiming to be the assignee of Howard, presents his claim; and he then goes to Nathaniel Massie’s representative for the papers, and finds them in liis possession, which strengthens our proposition that Nathaniel Massie, before he made the conveyances as owner of the entire tract, had purchased Howard’s interest, as well as that of Fowler.
    The bill states—but there is no proof of the fact—that the tract was surveyed September 11,1792, in the names of William Fowler and N, Wilson. The patent is for services performed by William Fowler and James Howard; and it is admitted that the patent was procured without any statement *that the possession had been adverse to the claimant for fifty years.
    We contend that it must be presumed that we have the equitable title by virtue of some contract or assignment of the interests of Howard and Fowler.
    An equitable title is a sufficient defense to a partition suit. German v. Maclain, 6 Paige, 289 : “ Where a bill in chancery is filed for the partition of land, of which the complainant is a tenant in common of the legal title, the defendant may set up in his answer, as a defense to the suit, an equitable title in himself to the whole premises.”
    This defense we have set up in the answer; and in addition thereto, we say that the plaintiff’s legal title is doubtful, and that he must first establish the same at law.
    Our equitable title must prevail on either of three grounds :
    I. The assignment of the equitable title is to be presumed from the long adverse possession of improved lands under recorded deeds,—and this independently of the analogy of the statute of limitations.
    II. According to complainant’s own showing his equitable claim,, as assignee of Nathaniel Wilson, is barred by analogy to the statute of limitations ; for if it had been a legal estate, it would have been barred—complainant having taken the assignment in 1811 from his father, and successive disabilities not being allowed. The loss of the equitable title by complainant, in a suit for partition, is fatal.
    III. According to complainant’s own showing, and the weight of all the evidence, an assignment of James Duke’s interest to Nathaniel Massie, is an inference of fact; for the latter had the assignment of Nathaniel Wilson to James Duke, and complainant knew nothing about the assignment, or the property itself, till 1838. To say nothing of the mass of corroborating testimony; this fact, coupled with the facts that Massie convoyed as owner in 1796, and that his grantees held quietly in 1841, makes the strongest case for an inference that the equitable inter'est was assigned to Massie, or his grantees. And this conclusion arises from the facts *alone, independent of any legal presumption derived from the analogy of the statute of limitations, and whether suoh analogy exists or not.
    1. We have the equitable title upon the presumption of an assignment from our long possession of improved lands, under recorded deed; and this independently of the analogy of the statute of limitations; consequently, a court of equity will not entertain complainant’s claim in a chancery suit.
    We do not ask the court to make any violent presumption in favor of our ancient possession, but only to presume the existence of some contract or assignment, which, in all human probability, took place between the proper parties.
    As observed in 2 Phil, on Ev. 364: “ It is to be collected from these cases, that on possession and great lapse of time, and all other things, being regularly made out in proof, the title shall not fail for any single item—that is, assignments, etc., are presumed to perfect the chain of the title.” ......
    “ Presumption is often resorted to, for the purpose of supplying defective evidence, and in this country is not oftener applied to any subject than to supply defective title to lands. It would be difficult to make out the titles to many of the older tracts of land in this state, by a regular deduction of title deeds from the patentees down to the present proprietors, without resorting in some stage of them to presumption.
    “ In general, these presumptions are bottomed upon the existence of certain facts, which can leave but little doubt upon the mind of the truth of the fact which we are called upon to presume. They frequently, too, derive their force and efficacy from that vigilance with which the law guards ancient possessions which, sooner than they should be disturbed, presumes that they had in contract a rightful commencement.” See Archer, J., in Beall’s Lessee v. Lynn, 6 Har. & Johns. (Md.) 361.
    It is admitted that, generally speaking, no presumption of *a grant will be made of a legal estate, within the period proscribed by the statute of limitations, when the presumption is asked for on the mere ground of possession ; for that would be to make a limitation different from the one prescribed by the legislature.
    Where the statute of limitations does not apply, as in the case of long possession .of incorporeal hereditaments, a grant will be presumed, after the time limited by the statute applicable to corporeal hereditaments has expired. This is by the recognized analogy governing courts of law.
    And courts of equity will presume the assignment of equitable rights, after the period has elapsed which would be allowed for the enforcement of the claim,.if it were a legal one. Thus, if the complainant in this case had, instead of getting the patent, filed a bill in chancery, to obtain possession of the land in question, on the ground that Howard’s interest had been assigned to complainant’s father, and by him to complainant, the bill would have been dismissed; for the court would have presumed a transfer of Howard’s interest from his assignee to Massie or his grantees. And the court should, in the present ease, presume such surrender; for the fact of complainant’s having obtained the patent makes no difference,' so far as the equitable title is concerned.
    The rule in equity is, that a presumption arises that an equitable estate has been released, where a legal estate would have been barred.
    2 Phil. Ev. 334 : “ The above Kentucky cases, and others, may be regarded as establishing the general position that adverse possession is equally a .bar to an equitable as of a legal claim for land.” Per Marshall, C. J., in Hunt v. Wickliffe, 2 Pet. 201, 212 ; Peyton v. Steth, 5 Pet. 485.
    In some cases an equitable estate will be presumed to have been released, although if it had been a legal estate it would not havo been barred by the statute of limitations (Story’s Equity, 529, 530).—as in cases where the demand is very stale, or there has been gross laches.
    The general rule, however, is, that the presumptive bar of *an equitable estate may be avoided by the same disabilities in the claimant, which are admissible, at law, as infancy, absence, etc. 2 Phil. Ev. 335.
    Story’s Ev. Plead. 624: “After a great lapse of time, courts of equity will raise a presumption of some legal or equitable extinguishment of the adverse title, if the circumstances of the case will enable them to support it.”
    Complainant says he took an assignment of his father in 1809. If that were so, why was nothing done for thirty years afterward ? Here was gross laches according to his own account, which will lead a court of equity to raise a presumption against him.
    2 Pil.'Ev. 302: “Long acquiescence by one in the adverse enjoyment of a right by another, leads to an inference that the former has parted with it in a legal form, and in time may lead to the presumption of the necessary instruments of assurance.”
    We do not say, that the act of limitations is a bar to the legal title of complainant (if he has such titlo) under the patent. See 2 Phil. Ev. 350; Lessee of Wallace v. Miner, 6 Ohio, 366; S. C., 6 Ohio, 249; Tillinghast’s Adams on Eject. 77. Neither do we say that it can bo presumed that a patent was granted to our ancestor, for it can not be presumed that the government have granted two patents for the same land. See 2 Phil. Ev. 354, 359, 297; 6 Ohio, 366; 7 Ohio, 249; Woodson v. Buford, 7 Monr. 418; 2 Phil. Ev. 297. But we do say that the equitable title of Wilson, under the assignment to him of the land warrant, must be presumed to have passed to the parties in possession.
    If the court should decide that the patent is not void on its very face, we do not say that we have now evidence enough to warrant the court in pronouncing that the patent is of no legal validity. But the legal title may bo in complainant, and the equitable title in defendant, by reason of the presumption in equity, that there has been an assigment of the right of Howard to Nathaniel Massie.
    The case of McArthur v. Gallager, 8 Ohio, 518, is strikingly *in point against complainant’s title. There the court presumed an assignment of a land warrant, and held that an assignment might be by parol. It was an ejectment case. In that case the court say, page 518. “It must be remembered, that no particular mode of assigning military land warrants was proscribed by law. It might bo done by an indorsement upon the warrant itself, or on a separate paper. Nor was there anything in the law requiring it to be done even in writing. Courts will, under circumstances sufficiently strong, presume a grant, or a deed, and there is no impropriety, in a proper case made, in presuming the assignment; and such presumption was made, in the case of Bouldin v. Massie’s Heirs, 7 Wheat. 122, and in that case the subject is very fully and at large discussed.” The court say: “ Eor a period of more than twenty years we do not find Trezvant, the original owner of this warrant, making an inquiry after his warrant, or the land. Is it thus that a man having a claim to 6,000 acres of land, like that in the military district, usually conducts with respect to it; or, rather, is it thus that a man usually neglects attending to his rights and his property? Trezvant was not in a foreign country—he was a resident of the adjoining State of Virginia.” The court then say, that even in 1814 Trezvant did not inquire after this land. But he makes an assignment of the warrant—not upon the warrant itself, for that was in the surveyor’s office. The assignee does nothing for ten years, and then witnesses acquainted with the transaction are dead. The court, therefore, presumed an assignment.
    Ours is a stronger case for the presumption. For nearly fifty years instead of twenty, the alleged owners of the warrant made no inquiry about the land, and they were residents of the adjoining states. If they had been in France the presumption of an assignment would not have been so strong. Besides, the assignment to complainant made thirty years ago was not on the original papers, for Massie had them. *Here the legal title remained in the state, but the property was transferred from hand to hand—was occupied by many individuals, successively, claiming as owners; they have improved the property; and the irresistible presumption is that the possession has been lawful—that the parties entitled to the equitable interest have transferred it.
    If the legal title had not been in the state, but had been in Howard, Wilson, complainant’s father, and complainant, it would be barred by the statute of limitations. Now Howard, Wilson, complainant’s father, and complainant, had not the legal estate, but it is pretended that they all had the equitable title, the beneficial title. If that were so, we should be entitled to ask the court to presume a transfer of the equitable estates, seeing that after the expiration of the pei’iod allowed by the statute of limitations, if the estate had been a legal, instead of an equitable one, it would have been extinguished by the statute. And just as a grant of incorporeal hereditaments would be presumed in favor of the possessor thereof a groat number of years.
    The simple question is, whether a devolution of the equitable title is not to be presumed, just as a devolution of tho legal title would have been under the same circumstances.
    A grant of tho legal title is presumed in favor of the possessor of land, even when such possession has been less than twenty-one years, if there be circumstantial evidence in addition to the possession. But the presumption is not made from the mere naked possession, for a shorter term than that provided for by the statute of limitations.
    Here we will notice the case of Starke’s Lessee v. Smith, 5 Ohio, 455, a case at law. John Starke obtained a patent in 1803: thirty years áfterward his heirs brought ejectment against Smith, who, in 1800, purchased John Starke’s warrants. In 1801 Smith took possession of the land, and had since remained in possession. Tho statute of limitations did not apply, as Starke and plaintiff resided out of the state; and the court refused to presume a conveyance. This was correct, as the claim was a legal one; and the *heir’s title was not barred by that act,—a question which is considered under the next head of this discussion. The defendant’s remedy was in equity, where he might have compelled a conveyance to himself of the legal estate. The defendant’s equitable title was not disputed. The court say that the rule of presumption does not apply to corporeal rights; and yet they admit that the evidence of title may be made out with length of possession and other circumstances. The fact is, that assignments and surrenders of terms in corporeal hereditaments are constantly presumed. But we need not trouble ourselves further with this question, for our proposition is, that as Howard’s title would, if it had been a legal one, have been barred by the statute, it must, being an equitable one, be presumed to have been transferred.
    2. According to the complainant’s own showing, his equitable title, as assignee of Nathaniel Wilson, is barred by analogy to the statute of limitation; for, if it had been a legal estate, it would have been barred, complainant having taken the assignment in 1811 from his father, and snccessive disabilities not being allowed. The loss of the equitable title by complainant, in partition, is fatal to his recovery.
    The complainant’s title, if a legal one, would be barred. He took the assignment in 1809; and he filed his bill in 1842. The assignee died eighteen years before the bill was filed; viz., in 1824 or 1825, according to the answer to our interrogatories, and the deposition of Basil Duke.
    Successive disabilities are not allowed. If the owner of an estate, living abroad, be disseized, his heir after his death is not entitled to the privilege of the proviso in the statute of limitations, although he, the heir, live abroad. Lessee of Whitney and others v. Webb & Westerhaven, 10 Ohio, 513.
    ■ The reason is, that the proviso in favor of persons abroad is to be confined to him to whom the right first accrues, although the word “first” is omitted in the statute of Ohio.
    *The decision in this case is that the disability of “ beyond seas,” in the act of limitations, is removed by death ; and the heir, whether under disability or not, is barred of his ejectment, unless he sues within the time limited by the statute. It is said the heir has twenty-one years after his ancestor’s death. But a purchaser is not allowed twenty-one years after the grantee’s death, nor eighteen years. In the preseqt c^se the equitable claim, has not passed by descent; it has been assigned; and we insist that if the owner of an estate, living abroad, be disseized, the privilege contained in the proviso of the statute, is personal to him, and does not pass to his grantee ; for he is not the person to whom the right of action “ first ” accrued. If every grantee of the person to whom the right of action accrues, during disability, were to be entitled to the benefit of the proviso, there might be successive disabilities for several centuries, and when the title came ultimately to bo tried, the evidence on which the defendant’s title was founded, would be lost in obscurity.
    It is true that cases may be found where this objection has not been taken; but, as observed by the court ip 10 Ohio, 513, “it frequently happens that principles the most firmly established, entirely elude observation until some startling controversy springs up, which rouses the mind to a survey of the whole field of dispute.”
    Our proposition then is, that if the complainant’s claim, as assignee of Wilson, had been a claim on which an action of ejectment could have been sustained, it would have been barred by the statute. That'being so, the equitable claim is barred by analogy. It follows, therefore, that oven if complainant has the legal estate by virtue of the patent, our defense to this partition suit is impregnable; for we have the equitable estate by legal analogy.
    According to complainant’s own statement, his father held the equitable right until 1809, when he assigned it to complainant—. that being so, the right first accrued to complainant’s father, who is dead; and if the estate had been a legal one, complainant must have prosecuted it many years ago, for at this day the action would be barred.
    *It is immaterial to us whether the heir of a party abroad is allowed twenty-one years after the death of his ancestor or not" Complainant took the assignment in 1809; and if it had been a legal title, he would be barred after his father’s death; and he is therefore barred by analogy in equity.
    It is not necessary that James Duke should have been dead twenty-one years before the filing of the bill. Ho was dead a little less than twenty-one years. Even if twenty-one years had not expired since the assignment, there would have been a bar, if the assignor himself were dead, and his right accrued more than twenty-one years ago. A purchaser will be in no better position than his vendor; and when the time has begun to run, it does not stop. This is so even if the heir, being under disability, is allowed twenty-one years after the death of his ancestor. On this latter point, see decision of court in bank in 1845. Carey v. Robinson, 13 Ohio, 181. Here were three successive disabilities in different persons, and two of the parties have died, disseized. Wilson assigned to James Duke. Both are dead many years—Duke over eighteen years. Massie conveyed as owner in 1796, and the estate of his grantees is protected by analogy to the statute.
    3. According to the weight of all the evidence, and this complainant’s own showing, an assignment of James Duke’s interest to N. Massie is an inference of fact; for the latter had the assignment from Nat. Wilson to James Duke, and complainant knew nothing about the assignment, nor the property itself, till 1838. To say nothing of the mass of corroborating testimony, this fact, coupled with the further fact that N. Massie conveyed as owner in 1796, and that his grantees held quietly till 1841, makos the strongest case for an inference that the equitable interest was as-sighed to Massie, or his grantees. And this conclusion arises from the facts above stated, independent of any legal presumption derived from the analogy of the statute of limitations, or whether such analogy exist or not.
    As this point is discussed in the opinion of the court, where %11 the facts of the case are elaborately examined, the argument of counsel thereon is omitted.
   Hitchcock, J.

The complainant introduces in evidence, in this case, a patent bearing date August 30, 1841, by which the land sought to be divided was granted to himself and the heirs of Nathaniel Massie; and upon this evidence he claims the legal title to the land, and that it is his right to have the same partitioned, as prayed for in the bill. There being no evidence to prove that this land had been previously granted by the government, it must be held that by this patent the legal title to a moiety of this survey was vested in the complainant as tenant in common with the heirs of Massie; or rather with the defendants, who claim under Massie, by deeds of warranty. Whether the proofs upon which this grant was made, were such as would have satisfied this court that the complainant was entitled to the land, is not a subject for our consideration, and can make no difference in the case. The proper officers of the government were satisfied, and the patent was accordingly made. It conferred the legal title; and the complainant must have partition, unless some of the grounds of defense relied upon by the defendants can avail to defeat his claim.

The first ground of defense is that the defendants, and those under whom they claim, have been in possession of this land more than twenty-one years, under claim of title. That this possession has been open, notorious, exclusive, and adverse to the complainant, and therefore that his rights are barred by the statute of limitations. The proofs in the case show that survey No. 2,204, including the land in controversy, was made by Nathaniel Massic as early as September, 1792; and that the papers connected with it remained in hi3 hands until his death. One-half of the survey was assigned to him, and the other half to James Duke. According to the testimony before the coart, James Duke, in 1809, assigned his interest to the complainant, Alexander Duke. James Duke was a resident in Maryland, and seems never *to have been in the State of Ohio. Massie, in 1794, conveyed the one-half of this survey to Wickersham, and the other half to Miller, in 1799. Wiekersham and Miller took possession of their shares immediately after their respective purchases; and they, and those claiming under them, have been in possession ever since. Here, then, has been an adverse possession of one-half of this land, of fifty-three years; and of the other half, of forty-eight years.

But it is insisted by the complainant that neither James Duke, under whom he claims, nor himself, was ever within the State of Ohio until a short time before the patent was issued, and that therefore the statute can not operate against him. The adverse possession commenced during the lifetime of James Duke. If he died more than twenty-one years before the filing of the bill, the statute beginning to run at his death, would, if there were no other difficulty in the way, operate as a bar. But the fact is that statute did not begin to run until 1841. Until that time the title of the land remained in the government, and the principle is well Bettled that the statute of limitations does not run against the government. Although, then, these defendants have been so long in possession of this land, they can not be protected by this statute.

The next ground of defense is, that this is a stale claim, and that the complainant is barred by lapse of time. To this defense the same objection, perhaps, applies as to that last considered. It was not until 1841 that the complainant could prosecute this claim, and since that period the lapse of time has not been so great that the court can with propriety say that the demand is a stale one, according to the common acceptation of the - term. In this case, 1 owever, it is not necessary to decide this point.

The last ground of defense relied upon by the defendant is, that Massie was justly entitled to, or had g,n equitable interest in, the whole survey. This is a point of more difficulty. If the fact be so,—if, in equity, Massie was invested with an equitable interest in the entire survey,—it must be a *good defense for these defendants. Had the complainant presented himself before a court of law in an action of ejectment, this defense could not have been made. In such case the legal title must prevail. But he is in a court of equity, and, although he has the legal title, yet if the defendants have a perfect equity in the land, he holds that legal title in trust for them. He is the trustee—they the cestuis que trust. And I apprehend that, under such circumstances, a trustee can not claim that the trust property shall be divided between himself and his cestuis que trust.

In order to sustain this point of defense the defendants insist that the circumstances disclosed in evidence are such that the court must presume that Alexander Duke transferred bis interest in this survey to Nathaniel Massie. If the circumstances are such as necessarily to raise such a presumption, there is no reason in law why it should not prevail. Assignments of warrants, entitling the holder to lands in the Virginia military district, have been presumed, both in the Supreme Court of the United States and of this state, 7 Wheat. 59 ; 8 Ohio, 518.

Whether such presumption can be made, must depend upon the circumstances disclosed in each particular case. The first circumstance relied upon by defendants in this case is, the great lapse of time. The testimony shows that Alexander Duke first became interested in this survey in 1809, by assignment from his father, James Duke. That he first came to Kentucky in the same year, and that since 1811 he has been a resident in Mason county. Mason county, although in the State of Kentucky, is yet in the vicinity of this land. It would seem strange, under such circumstances, that if the complainant had an inchoate interest in this land, he should not have set up a claim to it, or have made any effort to perfect his title for a period of thirty years. But we are not prepared to say that an assingment of the certificate of survey can be presumed from, mere lapse of time.

What other circumstances are there in the case, taken in connection with the lapse of time, and those circumstances ^already named, which would lead us to the conclusion that there must have been an assignment, or- some other transfer, so as to vest the equity in Massie? This depends upon the testimony. This I do not propose to recapitulate, but merely to state facts as they-are disclosed by the proofs.

As before observed, this survey was made by Massie, in 1792. It was made in the name of Fowler and Wilson, claiming as assignees of parts of two different warrants, upon which the entry was based. It is shown that the plat and certificate of survey were delivered to Massie in 1793, and, from anything which appeal’s in the case, remained in his hands until the time of his death, which happened in 1813. Fowler transferred his interest to Massie, and Wilson his interest to James Duke. The date of this latter transfer does not appear. Wilson and James Duke wore brothers-in-law. Before the year 1800, this entire survey had been conveyed by Massie, as before stated, and the purchasers under him took possession. This possession by them, and those claiming under them, has continued and been uninterrupted to the present time.

Two of the brothers and a sister of Alexander Duke swear that their father gave to their brother Alexander all his interest in the survey, in the year 1809. Alexander, by his own oath, confirms this statement. This testimony was furnished to the land-office in Washington, to induce the issuing of the patent, which was finally issued in 1841. But it is now before this court as a part of the evidence in this case.

James'Duke had a brother named Basil Duke residing in Mason county; and, according to the testimony, t,he complainant, Alexander Duke, first came to Kentucky in 1809. It is stated by the witness, Francis Taylor, that in the summer of that year he was residing with his uncle Basil. It is reasonable to infer that the gift or transfer of this survey was made to him by his father previous to his journey to Ohio, and that one object of the journey was to look after this land. There is no evidence in the case that he had any claim to *any other land in Ohio; and both Taylor and a son of the complainant testify that they never heard that ho had any other claim.

Taylor testifies that he placed a warrant in the hands of Massie for 2,666f- acres of land, granted to the representatives of TIonry Field, for services rendered by said Field; to be located, and that for the location Massie was to receive one-fourth. This was done in 1804. One tract of 1,500§ acres was located on the waters of the Little Miami, of which 600 were sold prior to 1809. Massie was entitled to one-fourth of the 900 remaining, amounting to 225 acres. The witness states that he had heard that Alexander Duke claimed land from bis father somewhere, perhaps as a gift or legacy, but that it is so long ago he can not state with certainty ; that he can only relate his impressions, except so far as his memory is assisted by papers in his possession. His impression is, that he purchased lands of Alexander Duke, and that the lands so purchased wore part of the entry of l,500f- acres before spoken of. The witness finds among his papers a receipt signed by Nathaniel Massie at Chillicothe, dated September 6, 1809, of which the following is a copy:

“ Chillicothe, September 6, 1809.

“Received of Mr. Francis Taylor 225 acres of land, being my proportion of the balance of a survey of 1,500 acres, made in the name of the heirs of Henry Field, and patented in the name of said Taylor, for which amount I have entered credit in his bond.

“Nathaniel Massie.”

The witness further states that he had no dealing with General Massie in Chillicothe; that he thinks Alexander Duke brought the receipt to him; that he paid said Duke for the land bought of him, and that he thinks the land so bought was the identical'land mentioned in the receipt; that he considered the receipt as a sufficient voucher for him to account with Massie, and that it was satisfactory evidence to him, to pay for the land to Duke; repeats that he thinks Alexander Duke brought him the receipt; states that he *was well acquainted with Basil Duke, and does not think that in 1809 he had any other nephew in the country than Alexander Duke ; that Alexander was then young and unmarried. The witness further says that his land was situated in what is now Clinton county, was of good quality, and that he knows of no reason why it was not at that time of as much value as land in Hamilton county, unless the same was situated in the immediate vicinity of Cincinnati. The witness also proves the handwriting of Basil Duke to two letters which are also in evidence. Basil Duke is dead.

Prom this testimony it is apparent that Alexander Duke received from Taylor payment for 225 acres of land, which had been the property of Nathaniel Massie. Why was it so? Whence did ho acquire the right to receive this payment?

Let us turn our attention to the two letters, the authenticity of which is proved by Taylor. The first is dated Jaly 15, 1809, and is as follows:

“ Dear Sir : I have been expecting, for some days past, a letter from you, acquainting me with the situation of the laad. I will thank you to write me, stating the neighborhood where the land lies, so that it can be found, as my brother’s son is here and wishes to view it. Also, whether a patent has been obtained, and how the warrants have been disposed of. Your early answer will confer additional obligations on your friend, B. Duke.”

This letter is directed to Gen. Nathaniel Massie, and was answered by Massie, as appears from the second letter of Basil Duke, which is as follows :

“ Washington, September 2, 1809.

“Dear Sir: I received yours by mail. My nephew, to whom my brother has given the land, is willing to take the land spoken of by you in F. Taylor’s survey, in part of tho other land or in whole, if on examination it should be found *equal to the other. When I see you I can explain more fully my meaning: he will abide by any contract made by you and myself, and we can easily settle it when I see you. The object of the present letter is to prove to you that he will take the land, and also to request you to forward to F. Taylor a receipt, stating that you had received a full satisfaction, as locator, for 1,500 acres of land lying on the Miami, that is, to 225 acres, it being the balance of your proportion.

“ Taylor states to me that the original quantity was 1,500 acres, and out of that quantity 600 acres were sold, and that your proportion will be only 225. Taylor has purchased the 225. Expecting you shortly here, 1 shall not be so particular at this time. In much haste, yours, etc. B. Duke.”

Directed as before.

Now, what “ other land ” is here spoken of, for which the 225 acres was to be taken “ in whole ” or “ in part” ? The letter refers to land which had been given by the writer’s brother to his, the writer’s nephew, who was then with him, and that nephew was Alexander Duke. What land had thus been given by the brother to the nephew? The proofs show that it was the one-half of entry and survey No. 2,204 of 400 acres, the identical land now in controversy. Massie having sold and conveyed the land in this survey, and anxious to protect his vendees, had undoubtedly in his letter to which this was an answer, proposed to exchange the 225 acres in the Taylor survey for the 200 in No. 2,204. The proposition was accepted; and before the last-recited letter was written the 225 acres had been sold to Taylor, who withheld payment only until Massio’s receipt could be procured. This receipt was executed on the 6th day of September, four days after the date of the letter, and is by Alexander Duke passed over to Taylor, who thereupon pays him for the land. This all transpired late in the year 1809, and we hear nothing further of any claim *of Alexander Duke to the land in controversy for a period of about thirty years.

Now, under all these circumstances, the question arises, whether an assignment was made by Duke to Massie, or whether such an assignment can be presumed. We are satisfied of this fact, that Massie actually paid for the land. We can come to no other conclusion. TJpon this point the evidence is satisfactory; an assignment ought to have been made unquestionably, and it is not going too far to presume, after this great length of time, that that was done which ought to have been done.

An attempt is made to account for this great delay by the excuse, that the plat and certificate of survey could not be, or wore not discovered until a period but little anterior to the date of the patent. These papers were in the hands of Massie. The complainant, immediately after he became interested in the land, in the year 1809, came to the west, and appears to have been located with his uncle. That uncle forthwith opened a correspondence with Massie upon the subject of the land. That correspondence was continued until the fall of the year, when the 225 acres were sold to Taylor, and from that period we hear nothing further relative to the business. Complainant must have known that Massie was interested in the survey, and might well have supposed that the latter would know something about these papers. He did so suppose, and through his uncle Basil, he applied to Massie for information. This was before the sale to Taylor; after that sale, although Massie lived four years, no further inquiry was made of him. William Creighton, Sen., was appointed administrator upon Massie’s estate, and Massie’s papers came into his hands. It does not appear that the complainant ever made any inquiry of him. In 1820, Cadwallader Wallace was, by the legislature of Ohio, appointed trustee upon Massie’s estate, and superseded Creighton as administrator to a very considerable extent, if not entirely. The papers of Massie were handed over to him, and among those papers were the identical ones upon which *the patent was issued. Wallace has been examined as a witness by the complainant, and states that during the time Massie’s papers remained in his hands, which was a period of ten years, no inquiry was made of him for those papers, and that at the close of his trusteeship, he passed them over to the heirs of Massie. He states further that, from some papers he had seen, but can not tell precisely what, he got the impression that the survey belonged of right to Massie. The papers remained in the hands of Massie’s heirs until 1838, when they were delivered to complainant. Here, then, was a period of twenty-nine years, in which, from anything that appears, no effort was made by the complainant to procure a title to the land. But after that period, Massie being dead, Basil Duke being dead, the claim is resuscitated and a patent at length procured. There is no sufficient apology for this delay. It can be accounted for upon no other presumption than the one assumed by the defendants—that the complainant had parted with his interest.

Upon a full examination of the whole case, we can come to no other conclusion than that, although the legal title is in the complainant, yet that he holds the same in trust for the defendants. The bill must therefore be dismissed at complainant’s cost


text:
    Cushing Thomas v. Henry Cronise.

      A. court of chancery will not set aside a deed executed upon the consideration of a hot upon the rosult of an election, but will leave the parties as it finds them.

      This is a bill in chancery, roserved in the county of Seneca.
    The bill charges in substance, that one John Strong and Henry Cronise, the respondent, made a bet upon the result of the election for governor in 1842, of lot No. 96, in Tiffin, in Seneca county. That Strong executed a deed of *said lot, with general covenant of warranty to the respondent, and delivered the game-to one Clark, as stake-holder. That the only consideration for the execution of the deed was said wager upon the result of the election. That Clark, contrary to the express request of Strong, after the election, delivered the deed to Cronise. That complainant is ignorant of the terms of the wager, and calls upon Cronise for full answer. That possession is in Strong and himself. That Strong, who made said bet, sold the lot in question for $79 to John Strong, Sen., who sold and deeded it to complainant for $70, on September 24, 1845. That he was ignorant of the deed of Cronise at the time of his purchase. . That Cronise has given out in speeches, that he claims said lot under said deed. The bill prays that the deed to Cronise may be declared fraudulent and void, and that complainant may have the lot decreed to him as the lawful owner, and calls upon respondent to make full answer on oath.
    Cronise, in his answer, admits the wager, and states that the bet was upon the result of the election of governor of the State of Ohio, in the year 1842. The answer further states, that Strong executed the deed above named to Cronise, and that Cronise executed a deed for a lot to Strong. These deeds were deposited with Sylvester B. Clark, as stakeholder. If Corwin should be elected governor, the two deeds were to be delivered to Strong; and if Shannon, the two deeds were to be delivered to Cronise. Shannon was elected, and the deeds were delivered to Cronise, at the request of Strong. That Strong expressed himself satisfied with the transaction after the deed was delivered. That Clark complained against Cronise for making the bet, before the mayor of the town of Tiffin, and that he was fined in the sum of $100. That he delivered the deed for the lot in question to the recorder for record, on July 1, 1843. That he has been in possession of said lot ever since. That no consideration ever passed from Strong the elder to Strong the junior for the lot. Cronise also sets up a purchase *at a tax sale, since the deed convoying the lot to him, and asserts complete title in himself, and prays to be dismissed.
    William E. Noble, for complainant.
    Cowdrey & Wilson, for defendant.
   Read, J.

It is a universal principle, both in law and equity, that where an agreement is founded upon a consideration illegal, immoral, or against public policy, a court will leave the parties where it finds them. If executed, the court will not rescind it; if ex-ecutory, the court will not aid in its execution. Raguet v. Cowles, 14 Ohio, 55. Betting upon elections was always immoral, and against public policy; but was not made criminal until the act of 1839, and is not embraced in the general act to prevent gaming, which declares all agreements made upon gambling considerations void, and authorizes the losing party to recover back money or property lost upon a bet or wager. There is no statute which gives relief in a case of this sort, either in a court of law or equity. It rests upon the general principles wo have asserted. The parties being in pari delicto, the court will not interfere.

It is claimed that this is a bill to quiet title under the statute. In such case, the complainant must have both the legal title and possession. In this case he has neither.

Bill dismissed, with costs.


text:
    John Baxter v. The Trustees of Columbia Township, in Hamilton County.
    Error does not He to reverse the judgment of the court of common pleas in a case arising under the act to provide for the maintenance and support of illegitimate children; certiorari is the proper remedy.
    Error only lies in cases of judgments after the course of the common law.
    *In cases arising under the bastardy act, the cause can not be tried in the court of common pleas without the presence and testimony of the mother of the illegitimate child.
    This is a writ of error, directed to the court of common pleas of Hamilton county.
    The bill of exceptions shows the following state of facts:
    On November 14, 1845, Mary Jane Bodine, an unmarried woman, made complaint before a justice of the peace, against John Baxter, who was arrested, and the said Mary examined before the justice in his presence. Baxter gave bond, and the complaint was sent to the common pleas. While in court, Mary Jano abandoned the complaint, and the trustees were permitted to prosecute. Baxter plead not guilty, and on trial of the issue, a certified copy of the examination of the complaint before the justico was offered in evidence, and objected to by Baxter, and the objection sustained. The court permitted the justice to testify, that though he had certified the same as a copy, it nevertheless was the only examination taken. This was objected to, overruled, and the paper read. Baxter objected to the examination being read unless Mary should be examined as a witness. This objection was overruled. Baxter then insisted that he could not be found guilty, unless the said Mary Jane should be produced and sworn, to testify before the jury; but the court decided that the examination before the justico was sufficient, and the testimony of said Mary unnecessary. A verdict of guilty passed, and judgment followed, which is sought to be reversed by this proceeding.
    Th. J. Strait, for plaintiff in error.
    Ciiarles L. Tileord, for defendants in error.
   Avert, J.

A preliminary question arises here for determinatiion, to wit, whether the court will entertain jurisdiction, in the state of case presented by the papers. These *papers show that no writ of certiorari has been allowed ; but that a writ of error has been issued by the clerk, at the instance of the plaintiff, doubtless upon the supposition that such writ was authorized by the recent statute, allowing final judgments to be examined, on writ of error, which may be issued as a matter of course. The provisions of this statute make it necessary to inquire what kind of judgments are properly examinable under a writ of error.

This distinction between writs of error and writs of certiorari has been for a long time settled by this court, but more recently it has often become necessary to apply it in practice.

Writs of error have been confined to the eases of judgments in proceeding after the course of the common law, and according to that determination a writ of error in the present case can not be sustained, for the judgment sought to be reversed is not of that description. The case must therefore be stricken from the docket, as irregularly hero. But at times upon the circuit, when a case has been dismissed for a similar reason, we have looked into the papers, to discover if there were any grounds for the allowance of a certiorari, and with all the light thrown upon the subject, by a full discussion, we have either refused, or directed the writ to issue. As there has been a good deal of misapprehension respecting the proper form of the remedy, and as, from the same cause no doubt, this case appears in its present shape, wo have concluded to treat it as an application for a writ of certiorari.

With this view we have examined the act above mentioned, for the support of illegitimate children.

The usual mode of proceeding under this law is by a written complaint made by the woman herself before a justice, and under her oath. On the return of the warrant, the justice is directed to examine the complainant under oath, and the accused person shall be allowed to ask her any questions he may think necessary for his justification, evidently treating this as a privilege given to the defendant. This examination is to be reduced to writing, and to be given in evidence on the trial before the jury. It is further provided, that if, *at'tho time of the trial, the woman is not delivered, or is unable to attend, the accused shall be bound to appear at the next court after the birth of the child, at which the mother of the child shall be able to attend. It is provided, also, that the mother shall be a competent witness,-and her credibility left to the jury, and that on the trial of the issue, the jury shall, in behalf of the accused, take into consideration any want of credibility the mother, and any variations in her testimony before the justice and that before the jury. These various provisions contemplate the presence of the mother in all cases upon the trial, and her testimony under oath; the benefit to be claimed to the accused, from any want of credibility of the mother, or from any variations in her testimony, and require the jury to take these things into consideration on the trial. From an examination of the statute, we are satisfied that the presence and testimony of the woman upon the trial arc indispensable, except in the case of a confession in open court, and that the right given by the statmte can not otherwise be secured. If this interpretation of the statute be correct, the court of common pleas erred in suffering this cause to go to the jury without the testimony of the woman For that cause a writ of certiorari will be allowed.


author: Birchard, C. J.

text:
    John White v. Samuel Denman and others.
    An instrument of writing executed as a mortgage, with but one subscribing witness, can not be so reformed in equity as to defeat a subsequent judgment lien.
    As between the parties, equity will regard such an instrument as a good and valid mortgage.
    This is a bill in chancery, reserved in the county of Athens.
    The object of the bill is to reform a defective instrument, in form a mortgage, from Denman to White, to secure the ^payment of $4,000, recorded in January, 1844. The instrument has but one subscribing witness. A large number of judgment creditors of Denman are made defendants, all of whom claim by their answers a lien upon the promises described in the mortgage, and insist that it is superior to the mortgage lien. Throe of the judgments are prior to the date of the instrument. The others are subsequent, and the question presented for the consideration of the coui’t is, which has the preferable lien, the complainant, or the subsequent judgment creditors?
    Thomas Ewing, and John Welch, for complainant.
    The various defendants were represented by Á,. G-. Brown, C. C. Convers, O. W. Brown, Stanbery & Tan Trump, A. Nye & Son, J. Jewett, and R. E. Constable.
   Birchard, C. J.

This case turns wholly upon, the question whether a defective mortgage can be reformed and set up so as to defeat a judgment lien. This instrument was not executed agreeably to the requisition of the statute, having but one subscribing witness, and therefore, without reformation, was ineffectual to pass any interest in the land. It could not take effect as a conveyance in any sense. As between the original parties to it, there is no difficulty in making the instrument effect the intended object; for equity would regard that as done which the parties agreed" to do. They intended it should operate as a valid incumbrance, and so far as they are concerned, it must be treated as a sufficient mortgage. But can it bo so held, against intermediate judgment liens, to the prejudice of rights acquired by third parties ? To this point we must therefore turn our inquiry. It can not for a moment be maintained that any legal estate was passed to the mortgagee by this defective conveyance, Mayham v. Coombs, 14 Ohio, 428, and Stansell v. Roberts, 13 Ohio, 148, are authorities to show that it could, as a mortgage, have no effect without recording under the statute; and the authorities are abundant to prove that a defectively ^executed deed derives no efficacy from being placed on record. Lessee of Johnson v. Haines, 2 Ohio, 55, is directly to the point. From this it results, that at the time of the rendition of all the judgments subsequent to the date of the defective mortgage,and prior to thefiling of complainant’s bill, the claim of complainant did not affect the legal title, and did not create any equity in the land. The complainant can not, therefore, be regarded as a purchaser of the interest then subsisting in the debtor. The most favorable light in which he can be viewed, in reference to judgment liens of third parties, is that of a party entitled by contract to have a legal lien upon the property for the security of his debt. His misfortune (perhaps his fault) is, that before he succeeded in completing his right by securing a valid lien, others more fortunate, by operation of law, have obtained vested interests in the disputed premises which interfere with him. We can not aid him in correcting the error, which a little care would have provéntod, by thrusting aside those who have equal equity, and the better legal claim. The complainant can' not be preferred to the judgment creditors, without establishing a precedent that will in effect give more efficacy, in a numerous class of cases, to a negligently executed and defective mortgage, than to one in all respects executed in compliance with the law.