text:
    * Lessee of J. C. Foster v. William Dennison. and Lessee of J. C. Foster v. Comm’rs of Hamilton Co. and others.
    A deed may be held to operate in any form of conveyance, that will carry into execution the lawful objects of the makers. Whether the/orn be feoffment, giant, bargain and sale, or release, the deed may enure as either.
    An instrument by which the parties acknowledge payment of the consideration, “ obligating the grantors to forever quit claim land,” sealed, acknowledged, recorded, and possession released to the grantee, and held for thirty five years, is a conveyance.
    A deed made in Massachusetts in 1085, by husband and wife, and acknowledged by the wife only, passes the wife’s interest in land in Ohio, because it has that effect by the law of Massachusetts.
    An acknowledgement of a deed is not a part of the deed itself: it is required only as evidence of execution, or as authority for registration. In Ohio, it is required in doeds executed by married women, as evidence of her sealing and of freedom from constraint, and is for their protection.
    A husband is competent to mak^partition of the wife’s real estate, but the right he acquires by the proceeding in partition, does not extinguish her right, which survives to her or her heirs.
    A deed by a husband, in which the wife is only named in the testatum clauses relinquishing her dower, though duly executed and acknowledged, operates only upon her dower, and will not pass any separate interest of the wife in the estate.
    Ejectments. From Hamilton. The first is for one eighth of lot 92, and the second for a part of out-lot, 20, in Cincinnati. The plaintiff’s title in both these cases is -the same, and the title of the defendants depends upon the same facts, so the two could be, conveniently., and were considered together.
    In 1795, the premises were conveyed by J. C. Symmes to Seth Cutter, Abigail Cutter, Mary Cutter, Rachael Cutter, Martha Cutter, Hannah Cutter, Hepsibeth Cutter and Abigail Woodward, heirs of Seth Cutter, deceased. The plaintiff holds the interest of Hannah, Mary, and Martha, and Abigail Woodward, and is one of the heirs to Hepsibeth and Hannah. He recovered the original eighth of Hepsibeth, in the suit in this court reported 8 Ohio, 87. He is entitled to judgments for the remainder in these suits, unless the rights have been transferred by the two following deeds : 1. A deed made by Hannah, then wife of Isaac Wetherbe, Rachael, then wife of William Dixon, with their several husbands, and Martha then a widow of Henry Gardner, of which a copy follows :

      “ Boston, Nov. 20th, 1804.
    “Know all men by these presents, that whereas John Cutter of Cincinnati, territory north west of the river Ohio, deceased, who died intestate, having left two lots of land, lying and being in said town, *and numbered on the plat of said town, 92 and 20 ; viz. one half acre lot No. 92. and one five acre lot No. 20; and whereas, I, Isaac Wetherbe, of Boston, Massachusetts, and Hannah my wife, and I William Dixon, yeoman,and Rachael my wife, of Charleston, together with Martha Gardner, widow, of Medford, but all of the state of Massachusetts, being three of the lawful heirs of the above mentioned John Cutter, deceased, do for ourselves, our heirs, executors, administrators and assigns, severally agree, for the valuable consideration of twenty-five dollars, to each of us in hand well and truly paid, before the ensealing and delivery hereof, by William Woodward of Cincinnati, we do by these presents oblige and obligate ourselves unto him the said Woodward, as well as our heirs and administrators, to resign, give np, and forever quit claim to him the said Woodward, and his heirs, all our right and claim in the above described lot, together with all-the privileges and appurtenances, thereto belonging. Given under our hands and seals.”
    This instrument is duly sealed, and attested, and recorded on the 25th January, 1805. It is acknowledged by Isaac Wetherbe, William Dixon, and Martha Gardner, only.
    2. A deed from William Woodward and Samuel Foster, given in 1808, and duly executed, in the testatum clause of which Mrs. Woodward releases her dower to the grantee, M’Clelland, under whom Dennison holds lot 92.
    The objections taken are, 1. That the first deed is a Contract only, not a conveyance. 2. That the estates of the wives do not pass by it without acknowledgement. 3. That the last deed affects the dower only, not the remainder of the wife.
    Y. Worthington, J. O. Wright, and T. Walker, for plaintiff.
    1. The instrument of the 20th November, 1804, is only a contract for a deed, not a deed. If the intention be clear that the parties designed the deed as a present grant, it should be held a .conveyance, otherwise it is to be held a mere contract. 2 Wend. 433; 5 Wend. 26; 12 Wend. 156; 3 Johns, 419, 47, 389, 424; 5 Johns, 74; 10 Johns, 336; 4 Cruise Dig. 69. Where there is a present demise and a covenant for a future one, the paper is held a lease; but if there are no apt words of present demise, but provision for executing a lease, then it is held a mere contract for a lease. 10 Johns. 337; 1 T. R. 735 ; 2 T. R. 739 ; 5 T. R. 163; 6 East. 530 ; 2 W. Blk. 973; 3 Ohio, 116. A deed to convey the estate of a married woman, must be executed according to law, and show her ^intention to convey absolutely. 7 Ohio, pt. 1, 195; 9 Mass. 218; 13 Mass. 223; 3 Mason, 347. Judging of this paper, independent of legal decisions, we ■should not hesitate to pronounce it a simple agreement to convey. No language can be better adapted to express such intention.
    2. The deed is not executed according to the laws of Ohio, to pass •a legal title, except against Wetherbe and Dixon, for their curtesyThe law in force at the time of its execution, viz., the act of 20th ■January,. 1802, 1 Ch. St. 342, requires deeds thereafter executed, to be acknowledged or proven according to the laws of Ohio, or of the place where executed. This deed has never been acknowledged or proven by Mrs. Dixon or Mrs. Wetherbe, and has but one subscribing witness. «Contracts by married women are void unless made in conformity with the statute. 6 Ohio, 335 ; 6 Wend, 9 ; Griff. L. Reg. 495 ; 2 Shep. Touch. 114; 5 Mass. 554, 463, 438 ; 7 Mass. 20, 14, 18 ; 4 Mass. 541; 6 Pick. 87 ; 9 Mass. 143 ; 8 Pick. 536.
    N. Wright, B. Storer, and 0. Pox, for Dennison.
    1. Whether the paper of the 20th November, 1804, is to be-regarded a deed, or a mere contract for one, depends upon the intention of the parties, apparent on the instrument. 12 Wend. 156 ; 2 Wend. 439; 3 Johns. 47; 5 Johns. 76 ; 1 Mass. 227. Judging by this rule, no one can suppose the parties expected any other deed. They acknowledge the money paid, and bind themselves, their heirs, etc., to resign, give up, and forever quit claim to Woodward, all their right and claim, etc., to the lots and the appurtenances. The parties evidently intended, to give up and quit claim forever, all their right, &e., in the lots, and the ■instrument seems sufficient to carry the design into effect.
    2. As to the intention of Mrs. Wetherbe and Mrs. Dixon. Suppose ■the paper a contract, and not as such binding upon married women, still in law, after thirty-five years, the contractee in quiet possession, -it is a clear unequivocal case, for the presumption of a deed. 6 Bin. 419.
    3. This deed executed according to the law of Massachusetts, where -it was made, binds all the parties to it. 9 Mass. 172, 220; 5 Mass. 463 ; 7 Mass. 20 ; 6 Pick. 87; 8 Pick. 32, 536. The abilities and ■disabilities of married women are regulated by the law of their domdeil, which protects their persons. The form of legal t ties of real estate is regulated by the lex loci rei sitae, but *the capacity of the married woman, and the forms which shall protect her incapacity from abuse, are fixed by the law of her domicil. Hence it is not important that our own statute shall have been complied with in executing this paper, as the form of execution to pass the wife’s interest in. the land conforms to the law of Massachusetts. Story Conft. of L. 127; 8 Pick. 32, 536.
    4. But this deed is clearly within our statute. The act of 1802, intends to make valid, deeds executed in other states according to their law. This appears both from the object and language. A deed executed and acknowledged as this, in Massachusetts by a married woman, passes her interest in land, and as our law adopts the foreign execution and foreign acknowledgement both, the deed is good here.
    5. The shares claimed if not generally barred, are so as to lot 92, by partition in pais, evidenced by the conveyances and long continued occupancy by Dennison; and as to Mrs. Woodward’s share she united in the deed, and with her husband has ever since continued to occupy other parts of the land, and she must be held to this partition unless relieved from it in equity.
    D. Van Matee, for the county.
   By the Court,

Lane, 0. J.

There is no doubt that Woodward expected to acquire the interest of Martha, Baehael, and Hannah, in the lots, by the deed of 1804. It is sometimes a nice matter to discriminate between an agreement to convey, and a present conveyance : but whore the parties intend to pass the title, without any further act, the law will endeavor so to interpret their proceedings as to work this effect. In this transaction the contract of sale is made, the consideration paid, and a deed is given, sealed, acknowledged and recorded, and possession of the land held under it, for more than thirty years ; by which, the parties evidently meant to pass the title. Now a deed may be held to operate in any form of conveyance that will carry into execution the lawful objects of the makers. Whether the form be feoffment, grant, bargain and sale, or release, the deed may enure as either. 6 Mass. 32 ; 4 Kent C. 2d ed. 403. An instrument in the forms requisite for a deed, if it show a consideration paid, and an immediate contract to convey, takes effect in Massachusetts, as a deed of bargain and sale, because it raises a use, which is executed by the statute of uses. 3 Mass. 573 ; 6 Mass. 24; 7 Mass. 189. This deed, ti' erefore, though in form a ^release, is a substantive bargain and sale, and operates as an immediate conveyance.

It is however claimed, that the deed is inoperative to pass the wives’ estate, because it was acknowledged by the husbands only. The acknowledgement of a deed is not a part of the deed itself; it is required by law, either as evidence of execution, or as authority for registration. In deeds executed by the wife in our state, the law makes the acknowledgement the necessary evidence of the fact of sealing, and of freedom from constraint. This ceremony is adopted as a protection to married women ; but the legislature has not thought fit-to require the same solemnities in deeds executed abroad, but merely exacts a compliance with the forms required by the law of the place of execution. 1 Ch. St. 485, § 3. By the laws of Massachusetts, where these parties resided, and where this conveyance was made, we-find a deed signed by husband and wife, but acknowledged by the husband only, is an effectual transfer of the wife’s property. 6 Mass. 541; 5 Mass. 438. It seems plain, therefore, that the grantors have complied with the Massachusetts forms, sufficiently to give effect to their deed.

The rights, therefore, of Hannah, Rachael and Martha, having-passed to Woodward by the deed of the 20th Nov. 1804, before their conveyance to the lessor of the plaintiff, it only remains to examine if he acquired any title from Abigail Woodward and Ilepsibeth Foster. They were married women, parties with their husbands in the petition-, for partition. In the case heretofore decided,.8 Ohio, 87, we held their interests were not extinguished by these proceedings, but were-restored to them or their heirs, after their husbands’ deaths. They are now held by the lessor of the plaintiff, unless that portion in lot 92, was conveyed to M’Clelland. His deed was made in 1808, by Woodward and Samuel Foster, conveying lot 92. No mention of the wives is made in the granting part or in the covenants; but in the: testatum clause, the grantors, together with their wives (each of whom, relinquishes her right of dower) set their names and seals, etc., and the instrument is duly executed by all. At the time of this conveyance, each husband held half of the lot, three-eighths in his own right,, and one-eighth in right of his wife ; and the rights of the wives were-likewise two-fold, viz. a vested remainder in an eighth, and a contingent dower interest in three-eighths. The words of the deed apply to-the dower only, and it is not for us to extend them beyond their plain; .•meaning. The recovery of the plaintiff is, therefore, limited to the ■two-eighths of Mrs. Woodward and Mrs. Foster.

Judgment for plaintiffs.


source: Caselaw Access Project

author: Lane, C. J.

license: Public Domain

text:
    *William Dennison v. Joseph C. Foster and others.
    .A purchaser from a tenant in common, can not throw the owner of a paramount title upon later purchasers of another portion of the common land.
    -'One tenant in common can not work a division of the common property, by-conveying his share in a deed defining its limits by metes and bounds. The effect of such deed is to pass to the purchaser the grantor’s proportional interest in the part described in the deed.
    'Tenants making such separation of interests, and their heirs, are bound by it, especially if the deed contains covenants of warranty, and it may be ratified by the co-tenants; but there seems no such relations between earlier and later purchasers, jis authorize the former to impose such obligation upon the latter.
    .As respects heirs, chancery might mould their rights, so as to protect the alienee of their ancestor, but no such principle applies between purchasers.
    In Ciianoert. From Hamilton. This bill is brought to quiet the plaintiff’s title to lot 92 in Cincinnati, or to have partition of that lot and out-lot 20, late belonging to the heirs of John Cutter in such form, that the plaintiff who holds a part of the title may protect his possession of lot 92.
    The plaintiff holds by purchase from William Woodward and Samuel Foster in 1808. Woodward and Foster at that time claimed a ■ complete title to both lots. There has since been much litigation concerning them, and suits recently decided, 8 Ohio, 87, and in Lessee of Foster v. Dennison, ante 121, and Lessee of Pillsbury et al v. Dugan «t al, ante 117, have established their right'to six eighths in fee, and estates for life in the remaining two eighths. The claim of the plaintiff to be quieted in his possession of the whole of lot 92, as owner, is not sustained; but he endeavors to support his bill upon the ground that he was the first purchaser from Woodward and Samuel Foster, and has a right to demand such a partition, as will leave his lot entire, ■by casting upon later purchasers the burthen of paramount claims.
    B. Storer, 0. Fox, and D. Van Matre, for plaintiff, insisted,
    that •as the plaintiff holds a conveyance with warranty for the whole of lot

      92, made when the grantors Woodward and Samuel Foster had possession of and claimed in the same right both that lot and also out-lot' 20, equity will secure the rights of all by a partition equal in value. Where there are several parcels of land, partition is not required to-be made of each separately, but “ the whole of one estate may be allot ed to one, and the whole of another estate to the other, provided that his equal share is allotted to each.” 1 Story Eq. 610, § 657 ; Alnat on Part. 12 to 28; 1 Pr. Wms. 446. And where an equal divi sion can not be made on account of the character of the *e.-tatc, chancery will compel a compensation in money, by one to other parties, so as to render complete and equal justice. 3 Bibb. 508 ; 1 Dana, 177 ; 2 Dana, 456. In making partition the innocent purchaser shall be' protected in his possession, and the claimant’s portion taken out of the-other part of the land. 3 Paige Ch. 474, 553. The most that can he said of the purchasers after the plaintiff is, that their equities are-equal to his ; and where the equities are equal, the oldest prevails.
    V. Worthington, J. C. Wright, and T. Walker, for the defendants.
    The true enquiry in this case involves the right of the plaintiff’ to throw Foster off. from lot 92, upon out-lot 20, for any interest he-may have in lot 92, in common with the plaintiff. The facts are these : the plaintiff and Foster are tenants in common of unequal interest in lot 92, and Foster and others are like common tenants of out-lot 20. The plaintiff’s title was acquired by the deed from Woodward and. Foster in 1818, to M’Olelland, with covenants of title and warranty. Foster has a paramount title to an undivided part of both lots, but the? plaintiff has no interest in the out-lot. We concede that a tenant in common may convey his interest in the whole or in a part of an entire - tract held in common with others. 2 Ohio, 112 ; 6 Ohio, 398; 7 Ohio, pt. 2, 129, 131; and that this deed for the whole tract, will pass all the interest he has; 2 Ohio, 113; but such deed conveys nothing; beyoDd its limits. 2 Ohio, 117 ; 1 Bibb. 510. So in partition, no-right is acquired out of the tract divided. 3 Ohio, 23. But we think ir. clear that one tenant in common has no right to appropriate to-himself any part of the common property, and say to his co-tenant, take what is left. 2. Ohio, 118, 120.
    Partition in Ohio, is only among common and join ttenants, and-parceners, and where one of such tenants has conveyed in parcels, his co-tenant can not claim partition in one proceeding against all the. holders of different parcels, but must pursue each separately. 7 Ohio,, pt. 2, 131. Chancery has now power to decree partition, but it can-■only do so between joint or common tenants or parceners of the same ■tract or parcels of land. Ib. — Wright, 168; 3 Bibb. 508. Equity will never make a partition which must operate unjustly. 3 Paige 474, 553; 5 Ohio, 243; 7 Ohio, pt. 2d 120; 3 Bibb. 508. In this •ease it would be unjust to make the holders of the out-lot bear more than their proportion of the paramount title. Even in case of dower, chancery will see, that the incumbrance is borne by the holder of each tract to which it attaches. Wright, 285, ^Tenants in common are seized per my etper tout, in the whole and in each and every part, .and neither has a right to appropriate part of the common property to his own exclusive use, and .we concede that Woodward and Foster had no right to appropriate to themselves the whole of lot 92, and if they now held the interest in the residue of .the common property, Dennison might throw them upon it, if of sufficient value to indemnify them, but inasmuch as they have parted with all their interest in the •out-lot, the position of the parties is changed, and there is nothing ■remaining in them to be so appropriated, to avoid suit upon their covenants, and each party having such covenant is left to resort to it for protection. The plaintiff, then, makes no case for the interference •of equity.
    N. Wright, in reply.
    Dennison occupying lot 92, as his own, has made large improvements since the commencement of the ejectment decided last year, for which the occupying claimant law makes no provision, and ■equity will give him such partition as to secure him the whole of his Improvements. He may throw Foster’s interest upon out-lot 20, in the same proportion he recovers. A tenant in common has a right in -partition to equal share in quantity and value of the common property, ■though none to have set'off to him any particular parcel, but equity may so distribute the shares as to do justice to all concerned. Thus -in case of a general lien upon a tract of land sold in parcels, equity will compel the lien-holder to forbear or resort to the parcel first sold until the other parcels are exhausted. In like manner, a creditor having access to but one fund, will turn off a creditor having access to two. I hold it settled, that the location of the shares in partition, is ■ entirely within the control of equity. But suppose one of two parceners to make a conveyance with warranty of the entire interest .in the divided half of the tract. This operates at law to exclude the other co-parcener, as to one-half of his share, from the half so conveyed ; does it not operate in equity to exclude him entirely from the .half conveyed, and locate him altogether on the other half? The •selling co-parcener, having warranted the half conveyed, can not claim an interest in the other half: for that would operate to throw his coparcener upon the part he had warranted, and so defeat his own warranty. Equity estops him from this. When partition is sought of the tract so situated, the grantee of the one co-parcener stands, in relation to. the other co-parcener, precisely as the man holding a claim on one fund against him who holds a claim on two : and equity turns the latter on to the fund which the Mother can not reach. Equity locates the share of the grantee on the tract he has purchased, giving the other co-parcener all his legal rights in the residue. Supppose the same co parcener should, after conveying the first half, convey the other entire half of the common property. In that ease, we contend, the tract last aliened must in equity be set off to the other co-parcener, precisely as though the second conveyance had never been made. By the first alienation the rights and equities of the parties are fixed; the half not aliened is charged with the equity against the aliening parcener; he has in equity no right in it, and afterwards conveys it •subject to this equity. The first alienee acquires, with his title, the •equity to be thus protected, and the second alienation can not defeat it. If those two ajienees ara before the court for partition, one of them must lose the whole ; the question is which shall bear the loss ? It is clear the oldest equity must prevail. One of two innocent pur■chasers is tobe saerified; which has the best right to protection? The answer is, he who has the oldest equity. 5 J. Ch. 240. The title itself charges the party with requisite notice, if any is required. 2 Ohio, 110. As to one-half out-lot 20, it is held by the Woodward High School, not innocent purchasers for a valuable consideration, but mere donees, mere volunteers, standing in the same relation to the subject as Woodward himself would; thus the court is enabled to do perfect equity, by locating Foster’s share on that half without any loss.
   By the Court,

Lane, C. J.

Since the eases heretofore decided upon the interests of these parties, there remains nothing to be settled in this suit, except the claim set up by Dennison, that the first purchaser •of a specific defined tract, from a tenant in common, may require from the co-tenant to apart his share from that part of the whole tract last sold by his grantor. That as Woodward and Samuel Foster, who claimed the whole of lots 92 and 20, first sold 92 to M’Olelland, under whom the plaintiff takes title, and as Joseph C. Foster has recovered ■an undivided fourth in both lots by these suits, the plaintiff asserts a right to set off the undivided share thus recovered in that part of the-land remaining with Woodward and Samuel Foster, after their sale to M’Olelland. and now held by later purchasers. It is argued, that as between tenants in common all rights are equal; that a partition giving to Joseph C. Foster his pr portional value in lot 20, is as just as any for him, and more equitable to the plaintiff, in consequence of his-improvements ; and that the other parties have *no reason to complain, because their titles are later, and taken with a knowledge of his.

One tenant in common can not work a division of the common-property, by conveying his share, in a deed defining its limits by-metes and bounds. As between the co-tennnts and the purchaser, all-the effect of such a deed is to give to such purchaser, the proportional interest of his grantor, in that part of the common property-described in the deed. 2 Ohio, 113; 6 Ohio, 398. The tenant making-this separation of interest, and his heirs, are hound by it, especially iff the deed contains a warranty, and it may be accepted and ratified by the co-tenants. 5 Ohio, 244; Wright, 712. But there seems no such relations between earlier and later purchasers, as authorize the-former to impose any such obligations upon the latter. The rights- and equities of each are equally ample and perfect. The loss which they suffer in this instance, is not from an incumbrance, which may be-extinguished, either by the appropriation of the land left with the-heirs, or by a contribution among themselves; but is a full and paramount right over a proportion of the land of each. As respects heirs, we would endeavor to mould their rights, so as to protect the alieneeof their ancestor, but we find no authority to apply any such principas between purchasers, and we must leave each to sustain his share-of the burthen.

The right to relief, therefore,'in the point of view contemplated by the bill, is not sustained. There is, however, a fact disclosed by the-evidence, and in some degree touched upon by the argument, which is deserving fuller investigation. -Mrs. Woodward, before her sale to Joseph C. Foster, covenanted with the executors of Woodward, to release to them all claims arising from or under the conveyances off Woodward. How far this expends; how ftdly it precludes those who hold her estate, from asserting a right which may ultimately fall upon the estate of Woodward, is a grave question. It will require a change of pleading to present it. The present suit is so complicated with other matters, and other parties, that we believe it had better be dismissed, reserving the right to pursue this enquiry in a new bill.


author: G-rimke, Judge.

text:
    * James Clark and others v. William Irvin.
    A verdict is not amendable by the Supreme Court as. a court of errors. Neither a plea of guilty in a criminal prosecution, nor the judgment founded upon it, are conclusive against the defendant in a civil action.
    Such plea stands like any other confession of. a party, and may be controverted.
    Error to the common pleas of Perry. Irvin sued James, Felix, and J. J. Clark, in the court below, for assault and battery. J. J. Clark pleaded not guilty ; the other two pleaded separately son assault demesne, on which issue was taken. During the trial before a j ury, the plaintiff introduced a transcript of the proceedings before a justice upon a criminal complaint for the same assault and battery, in which J. J. Clark pleaded guilty. The court instructed the jury that this plea of guilty wa's conclusive of the guilt of J. J. Clark, and estopped him from proving the contrary. The jury returned a general verdict of guilty. An exception was taken to this charge, and judgment rendered for the plaintiff, to reverse which this writ is brought.
    W. W. Irvin and T. Ewing, for plaintiffs in error, contended:
    1. That the jury did not pass upon all the issues, and the judgment as to two other defendants was without any finding and must be reversed. They relied upon Hanly v. Levin, 5 Oh o, 227. 2. As the judgment is entire, it must be reversed in toto, if in part. 2 Tidd. P. 1236 ; 2 Esp. N. P. 185; 1 Esp. 158 ; 3 Bac. Ab. Error M. 115, 16 ; 11 Wend. 91 ; 8 Cow. 406, The court has no power to amend under the act 33 O. L. 55. But 3. The court erred in stating the plea of guilty conclusive ; it is but an admission, and to go in evidence only as other adnrssions. 1 Stark. Ev. 234, 284; Bul. N. P. 232 ; Gibb. Ev 30 ; 4 M. & Sel. 476 ; 12 Mod. 339 ; 2 Stark. Ev. 812 ; 4 T.R. 255 ; 1 Phil. Ev. 283 ; 8 Wend. 440. And 4. If an estoppel, it should have been replied specially. Co. Lit. 226; 3 East. 354; 2 Car. & P. R. 148 2 Barn & Ald. 662.
    H. Stanberry and H. II. Hunter, contra.
    Hanly v. Levin, 5 Ohio, 230, only proved that before the acts of assembly, 32 O. L 20 and 33 O. L. 55, the court had not the power to amend such a verdict. The only real question is whether the verdict substantially finds the issues ; if so, the court may now mould it into form. On principle, in actions of this kind, the judgment may be affirmed in part and reversed in part. Dunl. Pr. 492 ; 1 Stra. 532 : 7 T. R. 469 ; 1 Saund. *109. n. 1. A plea of guilty judicially made upon a •criminal accusation is conclusive. 1 Phil. Ev. 259 ; 14 Mass. 48.
   By the Court,

G-rimke, Judge.

The verdict in the case below was ■a general one of not guilty. The jury did not pass upon the issues joined by two of the defendants. 1 his has heretofore been held a sufficient ground for reversing the judgment, 5 Ohio, 227 ; and the question is, whether under the provision of our two late statutes, this court can amend the defect. The act. of the 8th of March, 1831 permits amendments before writ of error sued out. That of the 25th of Feb. 1834, authorizes the court after writ of error to amend defects in the process or pleading. A verdict can not by any construction be considered as either process or pleading; and so this case is not within the provisions of that act. By the still later act of March 9, 1835, the courts are authorized before writ error brought to amend such formal defects as are not pointed out in a special demurrer; and even after writ error to amend a judgment or other proceeding. The first part of this section only authorizes amendments to be made where the defect is not relied upon on special demurrer. A defect in a verdict can not be the subject of demurrer, and so thatprovision does not embrace the case before us. Is it comprehended in the latter clause ? That, like the act of 1834, permits amendments after writ of error, only it is broader in its terms, using the words judgment or other proceedings ; but the section contains this language also, and yet, as has been before said, a verdict can not be considered as within its scope. The truth is, a verdict does not come witbin any of our statutes of amendment. The court is there Jert to exercise the power which it derives from the common law. And there is a peculiar fitness in that power being exercised only by the court who tried the cause. No other tribunal can kuow the facts which will authorize the amendment.

In (he coarse of the trial, the plaintiff introduced a transcript of the docket of the justice of the peace, showing that a criminal prosecution had been commenced against J. J. Clark, (who had now pleaded not guilty), and that upon that trial he had pleaded guilty. The court below charged the jury that said Clark was estopped, and that the proceedings before the justice were conclusive of his guilt. There is an authority to this effect from the most ancient book of reports which we have referred to in Phil. Ev. 259, but it is at war with the whole current of modern decisions. The record in the original prosecution not being between the same parties, can not be conclusive in *the civil action, and the plea, considered by itself, only amounts to a confession, •which can not have any higher effect than would the record which is founded upon it.

This judgment is, therefore, erroneous as to all the defendants, which renders it unnecessary to decide, whether, if it should be reversed as to some, it must be reversed as to all. 8 Cow. 406 ; 11 Wend. 91.

Judgment reversed.


author: Wood, Judge.

text:
    Elisha Sutton and Others v. The State.

      A struck jury may be demanded in a criminal as well as in a civil case.
    But where a jury is struck at the instance of tho defendant in term time/ shorter notice than is provided by law may be accepted by the plaintiff, and if the parties proceed and strike a jury, the defendant can not object the want of longer notice upon a writ of error.
    An averment that a defendant secretly kept instruments for counterfeiting sufficiently shows a scienter.
    The Common Pleas has jurisdiction to punish the offence of counterfeiting foreign coins, circulating in this state as money.
    Error from the court in bank to the Common Pleas of Huron. The plaintiffs were jointly indicted in the Common Pleas with others. The three first counts charged the having and secretly keeping instruments for coining certain “ coins of silver called Mexican dollars, currently •passing in the state of Ohio as and for moneythe two last counts charged the making counterfeit coin. The defendants pleaded not guilty, and moved the court for a struck jury, a separate trial, and that the cause be continued to the next term for return of the venires. The court ordered the struck jury returnable during term, and the separate trial, but refused to continue. Levi Sutton was first tried ■and found guilty on the three first counts, and not guilty on the others. Wm. Sutton was then put upon trial. His counsel moved the court to restrict the evidence for the prosecution to the three first counts, which the court refused, and the jury found as in Levi’s ease. Elisha Sutton then pleaded guilty as to the three first counts, the other two counts, as to him, being abandoned. The prisoners were then sentenced to the penitentiary, and the foregoing facts appearing in a bill of exceptions, they now seek to reverse the sentence.-

      Boalt and Worcester, and D. Higgins, for plaintiffs in error, contended,
    1. The court erred in ordering a struck forthwith, and refusing-. *a continuance. Const, of Ohio, 8 Art. § 8; 3 Ch. St. 1708,. § 21, 22. 2. The court erred in permitting testimony against William-upon the fourth and fifth counts, after his co-defendant had been acquitted upon them. Upon a joint indictment one defendant can not be found guilty on one count and another upon another, they must be-jointly convicted or acquitted. Toml. L. Dic. tit. Indictment, Art. 3; 2 Hawk. Pl. C. ch. 25, § 89. 3. The offence charged in the indictment, is a crime against the United States, of which the courts of" Ohio have no jurisdiction. Con. U. S. Art. 1, § 8; Acts. 1 Sep. 23d Cong, ch. 71; Act of 25th June, 1834, p. 37; Act of Ohio, 5th. March, 1835, p. 39, § 28; 2 East. C. L. 598, 601; Ingersol’s Dig, 498 ; 1 Kent C. 387 ; 4 Wheat. 193 ; Story C. Con. 394, § 550. 4. The charge in the indictment is too indefinite ; it is not charged that-the defendants had the instruments, knowing their purpose with intent-to -use them for counterfeiting ; nor is it averred that there are any genuine coin of the kind the instruments were adapted to counterfeit. 7 Ohio, 255 ; 8 Ohio, 231 ; 1 East. C. L. 196 ; 2 H. Pl. C. 187; 2 Ch. C. L. 105; 2 East. C. L. 593, 601.
    No argument was submitted for the State.
   By the Court,

Wood, Judge.

The indictment is drawn upon the-28t,h section of the act of assembly of 1835, providing for the punishment of crimes, 33 O. L. 39, which enacts, “ that if any person shall counterfeit any of the coins of gold, silver, or c'opper, currently passing in this state; or shall utter or put off counterfeit coin or coins, knowing them to be such; or shall make any instrument for counterfeiting any of the coins aforesaid, knowing the purpose for which such instrument was made ; or shall knowingly have in his possession and secretly keep any instrument for the purpose of counterfeiting any of the coin aforesaid, every person so offending shall,” etc. The first-count of this indictment charges, that the defendants did knowingly and willfully have in their possession and secretly keep, on bogus, one press, one pressing machine, one stamping machine, one set of dies, etc., the same then and there being instruments for the purpose of counterfeiting certain coins of silver called Mexican dollars, the said coins then being coins of silver currently passing in the said state of Ohio, contrary to the statute, etc. The third and fourth counts are substantially like the first. We can discover no lack of power in thes legislature to punish this offence,

2. Did the court below err in ordering a jury to be struck forth- ■'* with ? During the term of the court, the defendants, applied for a struck jury, which was ordered, the clerk to attend to striking "the same in the presence of the defendants and their counsel, which was done,, and the panel thus returned, constituted the jury, except two who were excused, and their place supplied, in court, hy talesmen. The act relating to juries, 29 O. L. 99, which we think extends to ■criminal as well as civil cases, provides that whenever a struck jury is ordered by the court, the party applying shall give at least eight •days’ notice to the opposite party, of the time of striking the jury. In this case, only three days were allowed. But if there was any thing erroneous in this, it was in allowing the struck jury at all. The indictment was presented at June term, and the jury was not applied for until the November term, when the cause was for trial. By delaying the application for the jury until November term, when there was not time to give the notice, he waived his right to it, and could not by such application force a continuance of the'case until the succeeding term. But it was the opposite party who was entitled to the notice, which they had a right to waive, and the defendant can not object that •the time was waived.

3. Did the court err in refusing to limit the evidence for the prose■cution to the three first counts in the indictment ? It is difficult to perceive any good reason for so limiting the testimony, and none is •shown us. The two last counts were for distinct offences of the same grade and punishment, and were well joined. But the defendants ■could not object, because they were acquitted on those counts, and were not prejudiced hy the evidence.

4. Is the indictment defective for want of an averment that the defendants knew for what purpose the instruments were adapted, or kept? The draftsman of this indictment has followed the precise language of the statute, which as a general rule is sufficient. There may be exceptions to this general rule, hut if so, the case before us is not one of them. In the first and second counts there is an averment that the defendants knowingly and willfully, had the instruments in possession, and secretly kept them. In the third count, it is averred, that the defendants secretly kept the instruments, knowing the purpose they were intended for. If either count is good, there is enough to sustain the sentence. Admitting that in this class of cases, guilty 'knowledge is the essence of the crime, is it not sufficiently averred? “The adverb implying knowledge, is expressed in one part of the sentenee, and understood in the other ; but if it were not, its place is supplied by another equally significant, secretly. Secretly, as used in the indictment, * implies the guilty knowledge. This is fully sustained by The King v. Fuller, 1 Bos. and Pul. 186, where it was alleged that the defendant procured another to commit the crime, and held that the procuring imported a scienter of itself. We hold this indictment substantially good, and we must take care, that while we secure the citizen the protection of his legal rights, we do not give-force to objections that would be a reproach to the law, where no injustice appears to have been done.

Judgment affirmed.


text:
    The Pennsylvania and Ohio Canal Co. v. Thomas D. Webb.
    In assumpsit for instalments of stocks which are payable on the requisition of directors and on the publication of notice, the facts of requisition and publication must be set forth with convenient certainty of time and place.
    "Where a defendant demurs and tenders issues of fact to the same pleading, he should be put to elect one, and abandon the other.

      Quere? Where A. subscribes stock in a canal company, authorized to construct a canal from the Portage Summit of the Ohio canal, and the legislature afterwards authorize the construction, from some other point of the Ohio-canal, is A. liable to pay up his subscription ?
    Assumpsit. From Trumbull. The declaration contains two counts t one for instalments due on stock in the company subscribed by the defendant, setting forth the circumstances ; the other general for money due on stock, etc., and the common money counts. The defendant, demurs generally to the declaration, pleads the general issue with notice of special matter; and also two special pleas in bar, first, that' when the defendant subscribed the stock, the law provided that the canal should commence on the Portage Summit of the Ohio canal, and afterwards the plaintiffs by covin procured an alteration of their charter, under which it had been determined against the consent of the-defendant, that the canal should not commence at said Summit; and' second, like the first, omitting the charge of covin in procuring the alteration of the charter. The plaintiffs join the general issue, and demur generally to the special pleas. The demurrers on both side» are joined.

      Crowell, for plaintiffs.
    The defendant’s contract is in these words . “ We whose names are hereunto subscribed, do each of us promise to pay to the president, directors and company of the Pennsylvania and Ohio canal company, the sum of one hundred dollars for every share of stock affixed to our names, in such manner and proportions, and at such times, as shall be determined by the company, in pursuance of their acts of incorporation.” This is an express contract upon sufficient consideration, and although the charter authorizes the company to forfeit and sell the stock for non-payment, it is not bound to do so, nor so to aver to sustain their right to recover. The charter obliges them to payas the directors require, etc. 9 Johns, 217; 2 Hall L. J. 231; 1 Bin. 70; 6 Pick. 45 ; 5 Mass. 80. The amendatory law must be taken as operative ; you can not between individuals enquire “ respecting the corruption of the sovereign power of a state ; ” an issue joined upon that allegation, would therefore be immaterial, improperly pleaded and not confessed by the demurrer. Fletcher v. Peck, 6 Cr. 87. In the original charter, the state expressly reserved the right to alter the course of the canal as might be deemed expedient. This has been done, and the acts of the directors under the amended act bind all the stockholders. Ang. and Ames Cor. 121 ; 6 Ohio, 126 ; 2 Penn. 181; 1 N. Hamp. 44 ; 8 Mass. 268; 10 Mass. 384, 390 ; 2 Kent C. 236 ; 4 Hen. and M, 215.
    T. D. Webb, and G-. Swan, for defendant.
    The writ shows the stock valuable, and the only remedy of the company is to sell it. The provision that they may make such s le, is imperative, and in a statute the same as shall. Salk. 409; Cro. Eliz. 654; Comb. 220; Vern. 152; 1 Pet. 64; 1 Swift. Dig. 13. The charter is a contract, and the legislature had no power to alter it, except by consent of all the parties in interest. Bac. Ab. tit. Corp. B. 3 ; 3 Bur. 1837 ; 4 Bur. 2227 ; 2 Conn. 579; 1 Swift. Dig. 71; 4 Johns. Ch 597 ; 2 Penn. 184 ; 1 N. Hamp. 44; 8 Mass. 262, 272; 10 Mass. 384, 390. The declaration is defective for not averring the call of instalments by the directors and notice to defendant, and because no consideration for the promise is shown. No recovery upon such a subscription can be had on the common count. 1 Ch. Pl. 324; 2 Ohio, 160, 439; 3 Ohio, 226, 525 ; 4 Ohio, 446 ; 1 Hall L. J. 146; 14 Johns. 195.
   By the Court,

Lane, C. J.

The practice of presenting issues ol fact and law to the same pleading at the same time, which prevails in one or two circuits, is very loose. In our opinion the p arty pleading should be put to elect one and abandon the other. As the par*ties have in this case argued all the questions; we will examine the whole.

The plaintiffs seek to recover the amount of the defendant’s subscription to their stock. The declaration sets forth that the plaintiffs were incorporated to construct a canal between certain points therein named, upon certain routes and upon certain conditions; that books of subscription were opened and the defendant subscribed ten shares of their stock, by which he became liable and promised to pay it, in such instalments as the directors might require; that the company duly organized and appointed officers; and that defendant has been called upon, and duly notified by publication in newspapers of general circulation, to pay the several instalments, amounting to one hundred dollars on each share, the last of which publication was thirty days before suit, by means whereof he became liable, and promised, -etc. The defendant sets up in his special plea, that when he subscribed, the act of incorporation provided, that the canal should commence at some such suitable point on the Portage Summit, as the Ohio canal commissioners should direct; that the powers of the canal commissioners were transferred to the board of public works ; that certain persons, after the subscription and without his knowledge and consent, by fraud and deception, procured an act of the legislature, repealing the said provision, and authorizing either the board of public works or the canal commissioners to fix the intersection with the Ohio canal; and that afterwards, before suit, said board did determine the canal should not terminate at any point on the Portage Summit, against defendant’s wishes or consent.

The first question arising upon the demurrers is, upon the sufficiency of the declaration. The 15th section of the act of incorporation provides, that “ each subscriber shall be bound to pay, from time to time, such instalments on his stock as the president and directors shall require, they giving at least thirty days’ previous notice of the time and place of making such payment, in at least one newspaper of general circulation in each of the counties through which the canal may pass.” These facts, viz. the requisition of instalments, and the notices of the times and places of payments, being conditions precedent upon which the instalments become due, are facts to be set forth with convenient certainty, and averments of time and place. The pleader has attempted to save labor, by asserting in one broad allegation, that the defendant had been called upon and duly notified “ by publication in newspapers •of general circulation, in the counties through which the canal passes, from time to time, between the 6th of July, *1835, and the 25th •of July, 1837, to pay the several instalments, amounting to one hundred dollars per share, at the times and places specified therein.” This is toe general, as to the publication of the notices, presenting no issuable points to the defendant, and all averment of the requisition by ■the directors is omitted. Nothing farther is necessary to decide the defendant’s demurrer in his favor.

• The parties have argued another question. The act of incorporation ias passed, was to construct a canal between the Portage Summit of the •Ohio canal, and the Pennsylvania canal. The amendment authorizes a change in the termination, from the Portage Summit, to such point on the Ohio canal as the board of public works shall direct. How far the Portage Summit terminus is an element of the contract, or what latitude of interpretation the phrase “ Portage Summit” will bear, we need not now decide. It is not every minute change which will absolve a subscriber from his engagements. In works of this kind, some power of regulation is retained by the legislature, some discretion is ■confided to agents who execute the details. Where the subscription is general, unincumbered with conditions, perhaps the stockholder has no reason to complain of any line of transit, which starts from the same point of business,accommodates the same travel and transportation, .and substantially subserves the same general interests. Perhaps the use of the Ohio canal as a part of the liae of communication between these points is not beyond the due discretion of the commissioners.

Cause remanded, with leave to amend.


text:
    E. Bright v. G. Carpenter and C. Schuer.
    Whore a stranger to a promissory note endorses it in blank at the time of making it, the payee of the note may sue him with the maker, as a joint maker of the note, and ho is entitled to the privileges of a surety.
    ■Such blank endorsement may be filled at any time in form to oblige the endorser as principal, or the court may regard it as so filled up.
    Parol proof is admissible to show the intention of the parties as to the extent of the endorser’s liability.
    Assumpsit. From Fairfield. The suit is against the defendants as joint makers of a promissory note. Upon non-assumpsit the following note was offered in evidence : $290, Lancaster, Ohio, July 27th, 1838. Ninety days after date, I promise to pay to the order of E. Bright, at the bank of Cleveland, Ohio, two hundred and ninety ^dollars, value received. G. Carpenter.” On the back of the note the name of “ C. Sehuer,” is endorsed in blank. The defendants objected to. this evidence, on the ground that it was only the note of Carpenter, Sehuer being only a guarantor. The plaintiff then offered to prove by oral testimony, that Schuer, when enquired of how his name came upon the note, stated that Carpenter brought it to him, saying he was indebted to the plaintiff in that amount, and had funds to pay, but the plaintiff would not take them, but preferred a note with security for the debt, and that he put his name on the back of the note at Carpenter’s request, he giving assurance that he would pay it in a short time. To the competency of this evidence, Schuer objected. The admissibility and effect of this evidence, is now for the consideration of the court.
    Hart and Borland,- for the plaintiff.
    . The note was clearly admissible. The forms of making and endorsing between the original parties, do not preclude enquiry. Douglass v. Waddle, 1 Ohio, 421, is exactly in point. The explanatory evidence should have been received. Schuer is liable under the circumstances as joint promisor, and, as suppletory to the/o?’wi of the note, in showing him so liable, the evidence was offered. 9 Mass. 315; 11 Mass. 440: 17 Johns. 326, 329; 2 Ohio, 430; 8 Pick. 122, 127, 130 : 5 Mass. 361, 346 ; 13 Johns. 175 ; Chit. en B. 433; 4 Pick. 387.
    IT. H. Hunter, for defendants,
    contended that the note offered in evidence was not the one described in the declaration. Schuer is not a joint maker. We think this court so decided in Green v. Dodge and Cogswell, 2 Ohio, 498, where the note was originally exactly like this. But the evidence excluded, if admitted, will not make out the case declared on, of a joint note; but one of an original undertaking by Carpenter, and a collateral one by Schuer. So it would appear, if what is-proposed to be proved was written out on the back of the note.
   By the Court,

Lane, C. J.

The plaintiff can not recover under this form of declaration, except by showing that Carpenter and Schuer are joint makers of the note given in evidence. He insists that proof of (his fact is presumed by the form in which they became a party, especially when accompanied with the proposed testimony showing that Schuer intended to become a surety, and repelling the presumption of his being an endorser. The defendants rely upon ¿the form of the paper as constituting a guaranty or collateral undertaking by Schuer; which being in writing or implied by law, can not be altered by parol. This form of mercantile paper is not unusual in business, and it seems strange that the precise character of the signer on the back of the note, has not been long since established with certainty. The cases cited by'the diligent counsel in this ease do not so settle the question. Those from Massachusetts, determine that where-a person, not a party to the note originally, signs his name upon it in blank at the time of its execution, he becomes, by relation, a party, and may be proceeded against as maker, and tbat„the note itself furnishes presumptive evidence of this relation, by the application of the-rule, that a contract is construed most strongly against the person bound. 3 Mass. 374 ; 5 Mass. 358, 546 ; 7 Mass. 58 ; 14 Mass. 316 ; 8 Pick. 122. In a late case, Dean v. Hale, 17 Wend. 214, it was held, that where an endorser of a promissory note payable to bearer, was privy to the consideration, he may be charged directly as maker or as endorser, and that a bona fide holder of such a note, endorsed in blank, may fill up the endorsement in any form consistent with the intent of the parties, and numerous authorities are there cited to support the decision. The endorsement in the case before us, being in blank, may be looked upon as filled up to conform to the plaintiff’s declaration, or may be in fact now so filled up.

We believe the principle running through these cases entirely conformable to the law merchant, and calculated to secure the legitimate-rights of all parties. If a person not a party, give his name to anote already existing, his engagement is collateral only, and he is to be held as guarantor; but if such a person sign his name to such a paper at the time of its execution, without prescribing the limits of his responsibility, he authorizes the holder to treat him as a maker, and is as much bound as if his name'was written under that of the-principal. In the case before us, Schuer need not be treated as a guarantor: he is only entitled to the privileges of a surety. In. adopting this rule, we contravene no decision made in our own state. Green v Dodge and Cogswell, 2 Ohio, 498, is in no way impugned. In that ease, either the holder or the person bound, had set out the terms of the endorser’s liability by filling the blank, and the law decided, relates only to a case where the character as guarantor is ascertained. The case of Stone v. Vance and others, 6 Ohio, 246, turned upon a peculiar state of facts, which repelled the presumption of any joint-undertaking between the second and third defendants.

The parol evidence offered by the plaintiff is unnecessary for his * recovery. But in cases of blank signatures of this kind, such testimony is admissible, because it is consistent with the contract ■ either to show the intention of the parties' as to the extent of the .liability, or to repel the ordinary presumption against such endorser.

Judgment for plaintiff.


author: Grisike, Judge.

text:
    Lessee of Luke Walpole v. Peter Ink.
    When a judgment creditor levies on only a part of the debtor’s land, he loses his preference as to other lands, first levied on by other execution creditors. A writ of certiorari is adopted in Ohio to correct such proceedings in inferior courts, as are not in conformity with the common law.
    'The reversal by the Supreme Court, of an order setting aside an order confirming a sheriff’s sale, necessarily affects those claiming against the sale.
    A judgment creditor who is himself the purchaser at sheriff’s sale, is affected by error in the judgment under which he acquires title.
    Ejectment. From Knox. Both parties derive title under sheriff’s ■deeds. The land was formerly owned by Talmadge. Walpole recovered a judgment in the Supreme Court of Knox, in September, 1826, for $8,445 28, against Talmadge. Execution' issued and a levy was made, and no entire year has since elapsed, without execution upon the judgment being in the hands of the sheriff of Knox or Coshocton ■counties. No levy was made on the land in controversy, upon such ■executions. At September term, 1831, the Supreme Court in Knox, pronounced a decree in Walpole’s favor, setting aside a conveyance by Talmadge to one Beers, of the land dow in controversy, as a conveyance in fraud of Walpole’s judgment. On the 27th of December, 1831, Walpole took out a new execution, and on the 28th of January, 1832, levied upon the land, which was sold by the sheriff; Walpole became the purchaser, bad the salé confirmed, and received the sheriff’s ■deed. On the 22d of October, 1831, Talmadge confessed two judgments, one in favor of one Dalrymple, and the other in favor of one •Struble. Executions were issued *upon these judgments the 29th of •October, 1831, levied upon the land in controversy, 17th November, 1831, which was afterwards sold by the sheriff, sale confirmed, and •conveyed to J. W. Warden, who conveyed to Ink. In 1832, the court of Common Pleas se't aside this sale ; but that order was reversed by the Supremo Court, in September, 1833. Wright, 447. A verdict was taken pro forma, subject to the opinion of the court on the fact? stated.
    *0. B. Goddard, Convers, and Mitchell, for the plaintiffs,
    in sisted that the proceedings under the writ of certiorari were invalids so far as used as a writ of'error ; that it was improperly sued out by one not a party to the proceeding, and to those points, cited a number of authorities. They also claimed that Walpole never lost his lien on. the land ; Talmadge’s fraudulent deed, which merely embarrassed it, was vacated by the Supreme Court, and then the lien of the judgment, attached in full force, and so continued until his purchase ; which cau not be defeated by the judgments confessed between the date of that, decree and the levy. The case of Hubbell v. Broadwell, 8 Ohio, 120, does not conflict with this assumption. That was a case in equity, and; this is at law.
    H. B. Curtis, and Sayre, for the-defendant.
    -Walpole’s judgment, did not continue a lien on the land. It was lost by delay. The-recovery was in 1826, the levy in 1832. In the mean time proceedings were had to set aside the fraudulent deed to Beers, which succeeded iu 1831. It is said Walpole’s judgment never properly attached as a lien, until the fraudulent deed was declared void. This seeks to place the land in the condition of that purchased after judgment. The decree gave Talmadge no new estate, it merely removed a clause from-, the title. A judgment lien could not be affected by a fraudulent deed. Wright, 700. But if held newly acquired, then the judgment was no-lien until levy, which was after the other judgments under which the-defendant claims, were confessed, and attached as a lien. 1 Ohio, 313; 4 Ohio, 92 ; 2 Ohio, 70, 396. The reversal of the order confirming, the sale to Warden, does not aid the title of the plaintiff.
   By the Court,

Grisike, Judge.

The question made, whether the. Supreme Court had jurisdiction of the writ of certiorari, it is hardly necessary to examine. No principle is better established than this, that where an inferior court proceeds according to the course of the • common law, its proceedings are revised by writ of error;' and when it does not proceed in that mauner, its orders are only examinable by certiorari. In England, the remedy by certiorari is two-fold ; to remove'a case for trial into the court above, or merely to enquire into-the correctness of its orders. We have dropped the first mode, and. .adopted the last. There was no judgment upon which a writ of error would lie, but only an order, and for that reason the writ of certiorari was,the proper remedy. The case is also free from any * embarrassment in consequence of the suit in chancery; for, admitting that the commencement of the lien of Walpole’s judgment should be referred to the period when a decree was pronounced, the question still remains, has he a preference as regards other judgment creditors ? The lien as between the debtor,- and a purchaser from him, may have been preserved, while at the same time it may have been lost as between Walpole and other execution creditors.

It appears that this judgment was rendered in September, 1826, and that no entire year has since elapsed, when executions were not held -either by the sheriff of Knox or of Coshocton counties. These executions have been levied on other property, but there was no levy on this land, until after the levy in favor of Dalrymple and Struble. Under these circumstances, although the lien of Walpole’s judgment may still have existed, his preference as an execution creditor was gone. Wright, 447. But Walpole purchased during the existence of the order of the court of Common Pleas, which determined the priority of his right. As that order was afterwards reversed, he must -necessarily be affected by the consequences. It is not the case of a purchase under a judgment. As to that, the rule in England is sometimes thus stated : that where a judgment is reversed, it does not vacate the sale of personal property, but where the execution is levied •on land, the title is vacated. The reason why the rule is thus stated, is that where land is seized, it is never sold, but is extended, and delivered to the execution creditor. And if this were a sale under a judgment, and that judgment had been reversed, perhaps some analogy might be drawn between the two cases, if a purchase by a judgment creditor under execution in Ohio, is the same as an extent in England. But it is unnecessary to give any opinion on that point; as it was an interlocutory order, and not the judgment which was reversed.

Judgment for defendant.


author: Hitchcock, Judge.

text:
    *Lessee of Henry Avery v. Dufrees, Munsell and others.
    Under the law of 1816, regulating the duties of executors and administrators, equitable interests in land, were assets for the payment of debts, and could be sold as real estate, by order of the court granting administration.
    A perfect equity in lands, held by an intestate, passes to his heirs by descent. As a general rule in ejectment, the legal title prevails; but quera, if a trust be established, can not the beneficiary recover against the trustee holding a more naked title ?
    Ejectment. Prom Miami. The ease was submitted to the court in Miami, upon an agreed state of facts, and now for decision upon those facts; but as they are fully stated in the opinion of the court, it is unnecessary to repeat them here.
    Holt, for plaintiff.
    Odlin, and Schenck, for defendants.
   By the Court,

Hitchcock, Judge.

The lands in controversy are parts of fractional sections 27 and 28, in T. 1, R. 11, in Miami county. They were originally entered by William H. Harrison, and assigned to D. Symmes, who paid for them, and was entitled to a final certificate und patent. Symmes died seized of the land, previous to 1818. On the 26th June, 1832, the heirs of Symmes, in consideration of one dollar, conveyed these and other lands, amounting in a'l to about three thousand acres, to N. LongworthandHenry Avery. Longworth after-wards conveyed his interest to Avery. On the 22d November, 1836, the land was patented to Avery as “ assignee of W. H. Harrison,” and on the 15th September, 1837, a patent issued to Avery, for the north half of fractional section No. 27, describing him as the “assignee of D, Symmes, deceased, assignee of William Henry Harrison.” Prom this it will appear that Symmes died seized of a perfect equitable title to the land in controversy, which descended upon his heirs, and had a patent been issued to these heirs, they would, according to the authority of the case of Bond v. Swearingen, 1 Ohio, 395, have been in by descent and not by purchase. Instead, however, of receiving a patent themselves, they transferred their interest to Longworth and Avery, and the patents were issued to the latter. This transfer included not only the premises in controversy, but other lands accounting in the whole to about three thousand acres, while the considerition paid seems to have been but one dollar, A consideration, we should suppose, somewhat inadequate, if the heirs of Symmes entertained the opinion that. they had *any interest in the lands transferred. . The inadequacy of consideration, however, has nothing to do with the present case. The question here is as to the legal title. And the lessor of the plaintiff claims title under the patents from the government of the United States, before referred to

The defendanls derive title under a sale by the administratrix of' Daniel Symmes, made in 1819, pursuant to an order of the court of Common Pleas of Hamilton county, the court by which the letters of administration had been granted, and deeds in pursuance of such sale. There is no controversy but that the proceedings preliminary to the order of sale were all correct; nor is it disputed but that the sale-itself was legal, provided the court of 0 >mmon Pleas of Hamilton county had p’ower to make the order: and provided the interest off Symmes in the premises was such, that it could be sold by his personal representatives.

It is insisted by the counsel for the plaintiff, that the title of the-, defendants is defective, because, 1st. the land being situate in Miami county, the court of Common Pleas of Himilton county had no jurisdiction to order its sale. 2nd. The interest of Symmes being an-equitable interest, merely, could not legally be sold by an administrator, pursuant to an order of court; or in other words, that under the law in force at the time this sale was made, equitable interests in land, were not, in the hands of an administrator, assets for the payment off the debts of his intestate. These are the only questions argued by counsel, and it seems to be conceded that the decision of the case must-depend upon their determination.

So'far as respects the first point made, it has a’ready been settled at the present term, in the case of Lessee of Avery v. Pugh, ante, 67, in which it has been decided that under the law of 1816, the law under which this property was sold, the court of Common Pleas granting-letters of administration, had power to order the sale of land, where such sale was necessary to pay .the debts of a decedent, irrespective of' its locality.

The second point made involves the enquiry, whether under the law in force in 1819, the time of the sale of the premises in controversy, equitable interests in land were subject t-o the payment of a decedent’s debts, in a regular course of administration. It is insisted by the counsel for the plaintiff, that such interest oaa not be thus subjected because the proceedings to procure an order of sale of real estate, is a purely legal proceeding, and as an equitable interest in land can not be sold on an execution at law, therefore a similar interest can not be sold in virtue of an order of the court of Common Pleas acting as a court of Probate, that order being the result of a legal proceeding. There is more plausibility than force in this argument. The jurisdiction and the practice of the several courts in this state, are regulated by statutes, and in order to ascertain their powers, we must look to those statutes. It is true that equitable interests in lands can not be sold on executions at law, and one reason is, that ample powers are possessed by the courts, acting as courts of chancery, to subject such interests to sale in satisfaction of judgments. But there can be no doubt but that the general assembly have power to direct such interests to be sold on executions at law ; and they have equal power to direct such interests to be sold by executors or administrators.

The law in force at the time of the sale of the premises by the administratrix of Daniel Symmes, was the act of January 25th, 1816, “ for the proving and recording wills and codicils, defining the duties of executors and administrators,” &e. 1 Oh. S. 926. This statute prescribes that the personal property of a decedent, with but little exception, shall be appropriated to the payment of his debts. And if the personal property or estate be insufficient for this purpose, then it is made the duty of the court granting the letters of administration, to-direct the administrator “ to sell so much of the real estate of the deceased, as shall be sufficient to discharge all such demands, after the money arising on the sale of personal property has been applied thereto.” What is real estate? I take it to be the interest which a man has in lands, tenements or hereditaments. If it be such an interest as can be enforced in a court of law, it is a legal interest or estate. If it be such as can only be enforced in a court of chancery, it is an equitable interest or estate. But in either case it is, “ real estate” or property. In the case of Livingston v. Newkirk, 3 John. C. R. 316, the chancellor says an equitable interest, founded upon articles for a purchase, and which a court of equity will specifically enforce, is real estate, which will pass by a devise subsequently made; and if there be no devise, will descend to the heirs, and the executor must pay the purchase money for the benefit of the heir.” If such an equitable interest be real estate, certainly an equity like that of Symmes’ in the present ease, must be real estate. Before his death, the entire purchase money had been paid to the government, and nothing remained but that the patent should issue.

Again, equitable interests in land, are by our legislature treated as real estate. Of such interests by our statute, the widow is to be ^endowed, regardless of the debts due from her husband’s estate, although she is not entitled to a distributive portion of the personal property, until after all debts shall have been paid.

If an equitable interest in land is real estate, and we think it is, then it might be sold by an administrator under the law of 1816. And such sale would vest in the purchaser all the title of the intestate at the 'time of his death. In the case under consideration, the defendants, by their purchase in 1819, acquired all the title which Daniel Symmes had to the premises at the time of his death, which was a perfect equitable title. In the opinion of the court, the points made and argued by counsel, are with the defendants. But still there is a difficulty in the case. Although Symmes was entitled to a patent for the lands in controversy, none was ever issued to him. After his death, and after the sale by his administratrix, of all his interests to the defendants, his heir assigned to Avery, and the patent was issued to him as the assignee of those heirs. By this patent the legal title to the land is vested in Avery, and in ejectment, as a general rule, the legal title must prevail. Avery takes this legal title, however, under all the circumstances, subject to all the incumbrances which would have rested upon it, had it been vested in the heirs of Symmes. In their hands it would have been a naked legal estate. They would have taken by descent and not by purchase, and had their ancestor conveyed with warranty, it would have enured to make good the title of his vendees. But their ancestor did not convey. He died seized of the premises, having a perfect equity therein. By the sale of the administratrix, this equity was vested in the purchasers, and they were entitled to the patent. After this sale, neither the heirs of Symmes, nor their assignee, with notice, could take the legal title in any other character than as trustees for the purchasers.

This view of the case is not referred to by counsel, and from their statement of the facts we are led to the conclusion, that they do not wish it decided upon this point. Lest however we should be mistaken in this, we will remand the case to the county, and should the plaintiff persist in prosecuting, opportunity will be afforded the defendants of seeking relief in equity.

Cause remanded.


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    *Lessee of Henry Darby v. William J. Carson.
    An order of maintenance under the bastardy act is a judgment of a court of competent jurisdiction, and can not be collaterally impeached.
    Such order may be enforced by execution as in other cases, the security given under the act being resorted to only in case of the inability of the defendant.
    Ejectment. From Hamilton, The lessor of the plaintiff ciaimed tile under a sheriff’s deed upon a sale made on execution, under the following judgment in the Common Pleas, at August term, 1825, upon ■a complaint under the bastardy act, viz. : “ Therefore it is considered and adjudged by the court, that said Margaret Moore recover against the said J. D. Carson the sum of two hundred dollars, to be paid in eight annual instalments as follows, to wit, (specifying the times of payment,) together with eighteen dollars and sixty-three cents for her costs and charges, by her about her suit in this behalf expended, by the court now here to the said plaintiff with her assent adjudged ; and that she have execution thereof.” Security for the performance of this order was given according to the statute. The defendant objected to the execution as void, inasmuch as no execution could issue upon the judgment. A verdict was taken subject to the opinion of the court upon the law arising on this state of fact.
    C. Fox, for the defendant,
    contended, the execution was void. The statute requires a bond with security to be given to perform the order, and remedy must be sought by suit on the bond ; and the only course in case he refuse, provided for in the law, is to commit the defendant to jail until he comply with the order. 2 Ch. St. 1423. There is no provision for execution, but when the bond is given the order is satisfied.
    O. M. Spencer, for the plaintiff,
    insisted that decision of the Common Pleas, in the bastardy case, concluded the whole matter, and was a final judgment, and upon common principles to be enforced by execution. In Co. Lit. 154 a. 289 b. an execution is defined to be “ the obtaining the actual possession of any thing acquired by judgment of law.” It is called ilfunctus et finis leges.” Without it a judgment would be worse than a nullity. Wherever power is given to a court to make an order or render, a judgment, the grant ex vi termini includes the means of enforcing it by execution. The statute supposes the order pronounced, when the accused is present, and seeks to hold the person until security be given to perform the order, and Whence orders him committed till he find security.- This is cumulative ‘only, the omission to require security would not vitiate the order, nor will the entry of it throw the plaintiff upon a new suit against the security on the bond, if the money can be made of the person who should pay on execution without. But the award of execution in this case is a judicial act, upon a subject and between parties within the jurisdiction of the court, and the error, if any, can not be enquired into collaterally. 3 Ohio, 257, 561, 305.
   By the Court,

Wood, Judge.

The proceedings in the court o£ Common Pleas are founded on-the act for the maintenance and support of illegitimate children. 2 Ch. St. 1423. The sixth section of this act provides, “ that if the jury shall find the defendant guilty, he shall be judged the putative father of said child, and shall stand charged with the maintenance thereof, in such a sum, or sums, as the court shall order and direct, with the payment of costs of prosecution, and. the court shall require the reputed father to give security to .perform the aforesaid order,” etc.

It is contended for the defendant, that no execution can issue upon an order of the court under this law, the remedy being on the bond only ; and therefore, that the execution in this case and the proceedings under it are void. It must be admitted that the court entry upon the verdict, varies from the usual form, and is not in exact conformity with the statute, which requires that “ the defendant shall be adjudged the reputed father of said child, and be required to give security” for its maintenance, as the court shall direct. In the record before us, there is no express adjudication against the defendant as “ the reputed father,” nor requisition of security; but a direct judgment for the recovery of two hundred dollars in instalments. Suppose the entry erroneous, it can not be denied that the court has jurisdiction of the subject and of the parties ; therefore they are not void, but must be regarded valid until reversed upon writ of error. 3 Ohio, 305.

The question then arises, Does this judgment or order authorize the execution and sale of the land in dispute ? There is a formal judgment for two hundred dollars and costs, which seems authorized by the provision of the statute, that “the defendant shall stand charged iu such sum or sums as the court shall direct.” This entry is a judicial act, and contains an express award of execution. This is a judgment, and valid until reversed. It is the determination of the law on the ■facts of the case, Jac. L. Die. title judgment. An execution is properly defined “ the obtaining of actual possession of any thing acquired, by judgment *of law; and necessarily goes on all final judg ments. Co. Lit. 154, 289. There may, it is true, be special cases, requiring special executions ; but in ordinary cases, the right to have the ubual execution follows every final judgment of course.

But it is said, the security by bond in these cases, takes the place ■of execution, and that the only remedy upon the judgment, is upon the bond This by no means follows. We think the bond and security ■only intended as a resort, after an ineffectual attempt to obtain satisfaction by execution. This is analogous to our general policy to subject the security only in case of the inability of the principal debtor. Moreover, we think, the general practice has been to enforce these ■orders by execution, and feel no disposition to change it.

Judgment for the plaintiff.


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    Lessee of Anderson v. Brown and Others.
    .A deed upon a sale on execution in 1799, might be executed’ by a sheriff’s deputy, in the name of his principal.
    -An acknowledgment of such deed, made by a deputy after the death of his principal, is void.
    Ejectment. From Athens. This case is submitted upon the following agreed facts : That Ebenezer Sproat was sheriff of Washington county in 1799, and John White his deputy : that a deed was made upon a sheriff’s sale of the property which, after reciting the receipt of writ of levari facias, dated.the 9th of April, 1799, his sale as deputy, proceeded ; “ I, John White, as well by the power and .authority to me given, as in the consideration of, etc., to me paid, etc., do hereby in said capacity, grant, bargain and sell,” etc., in fee, covenanting in his said capacity, that he was “ lawfully authorized to execute the writ,” had duly advertised and sold, and would “ warrant, secure and defend the same against all people.” Signed, John White, •deputy sheriff. This deed was acknowledged before a justice, in June, 1799, snd recorded in September, 1803. In 1836, after the death of Sproat, the sheriff, White appeared in the court of Common Pleas, and .acknowledged the said deed, “ in his said capacity as deputy sheriff,” in open court. The only objection to the plaintiff’s recovery, are-raised to the sheriff’s deed.
    J. T, Brazee, for the defendants, insisted :
    1. That the sheriff had no power to appoint a deputy, as no statute conferred such authority * until 1817 or 1818. The common law right did not prevail in the north western territory at that time. 2. The deed wasexscuted long after the expiration of the sheriffs term -of office, and after his death; and the deputy’s power ceased with that of the principal, unless continued by express statute. Wat. of Shff. 7 Law Lib. 24; 18 Johns. 122 : 4 Ohio, 88. And 3. The deed is void, because not executed in the name of Sproat, the sheriff. All the acts of a deputy-must be done in the name of the sheriff 7 Law Lib. 23.
    J. Welch, for plaintiff
    It is a sufficient reply to the first objection-to refer to Haines v. Linsey, 4 Ohio, 88. The sheriff and deputy are mere ministerial public officers. The rule between principal and agent does not apply, because the law disposes of the property of the defendant in execution ; neither the sheriff nor deputy have any interest. The only act done by the deputy after the death of the sheriff, was to achnowledge the deed. This is merely furnishing evidence-of what he had before done.
   By the Court,

Lane, C. J.

The first objection to the deed is that-the sheriff in 1799, could not lawfully appoint a deputy to make a deed in any form. The power of the sheriff at common law, and without any authority from the statutes, to execute all ministerial duties by deputy, and particularly the power of making sales and deeds, is-fully established by a former judgment of this court. 4 Ohio, 88. The second objection is that the deed was made in the name of White,, the deputy, and not in the name of the sheriff. We think this objection sufficient. Where delegated authority is exercised, it must be exercised in the name of the principal. Where one acts as the attorney of another, the act should purport to be -the act of the constituent. The deputies of a sheriff compose but one officer, and they have no-. authority except that exercised in the name of the principal. If, th'en, as in this case, a deputy assume to convey lands himself in his own name, his acts are void, like those of any other agent. 3. The acknowledgment of the deed was void likewise, for it was nc t until 1836, after the death of the principal. As the act of the agent acquires validity, because it is the act of the constituent, his power-ceases when the capacity of the principal ends. We unite, therefore, in holding the deed void upon both grounds.

Judgment for the defendants.


author: Grimke, Judge.

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    Simon Hombeck v. Daniel Vanmetre.
    "Where the vendor in a bill of sale or mortgage of goods retains the possession, that circumstance is prima fade evidence of fraud, but is not fraud per se.

    In such case, the question of actual fraud is one to be left to the jury.
    Replevin. From Pickaway. The plaintiff, in support of his title, gave in evidence a bill of sale or mortgage from one Richardson, to himself, including the property in dispute, and a note made by Richardson to Isaac Hombeck, and endorsed to the plaintiff, which remained unpaid, and proved that after the time mentioned in the bill of sale for it to become absolute, viz. in December, 1838, the property remained in the possession of Richardson until April, 1839, and that between those periods, he frequently applied to Richardson for payment, who promised to pay, or arrange the debt by giving personal security ; and that the property continued in possession of the defendant, until replevied.
    The defendant’s title consisted in a sale to him by Richardson, in April, 1839, for the consideration of seventy-five dollars; and proof that before his purchase, some of the other property included in the "bill of sale had been advertised and sold on execution, as the property of Richardson, but it did not appear that the plaintiff knew of it.
    The court instructed the jury that Richardson’s continuing in possession of the property after the execution of the bill of sale, and after the bill became absolute, was prima facie evidence of fraud, but if upon the whole evidence, they believed the transaction between the plaintiff and Richardson was fair, and without any intention to defraud Richardson’s creditors, or others who might purchase of him, the plaintiff would be entitled to recover, notwithstanding Richardson’s possession, as, if the transaction was shown to be fair, the prima facie fraud was done away. The jury found for the plaintiff, and the defendant now moves for a new trial, because the court misdirected the jury.
    H. N. Hedges, for plaintiff.
    J; Olds, for defendant.
   By the Court,

Grimke, Judge.

The rule governing eases of this ■kind, has been subject to the greatest fluctuations in the United States. The decisions in this state, have, perhaps, been more uniform than in any other. 'In Pennsylvania it has been held that on an absolute or ^conditional sale of chattels, possession must follow and accompany the sale, or it is fraudulent in law, although there is no fraud in fact. 5 Serg. and R. 275; 1 Penn. 57. The same has been declared tobe the law in New Jersey, Connecticut; and Vermont. On the other hand, it has been held in New York, that the retaining possession of the property, is only prima facie evidence of fraud. 5 Johns. 258 ; 8 Johns. 452. In a later case in that state, the court appeared disposed to establish a more severe and inflexible rule. They held that if the party executing the bill of sale, was permitted to remain in possession, whether the sale was absolute or conditional, it was fraudulent in law; but that decision was again entirely overruled, Bissell v. Hopkins, 3 Cow. 166, where it was again held, that possession was Only prima facie evidence of fraud. This last doctrine has been declared to be the law in Massachusetts, New Hampshire, and North Carolina. 15 Mass. 244; 5 Pick. 59; 5 N. Hamp. 545; 2 Hayw. 126. In this state but one rule has been declared, which is, that the retaining possession of property after the execution of a. bill of sale, whether absolute or conditional, is a question of fact for the jury. Unexplained, the retaining of possession after sale, would be held fraudulent, but such possession is not regarded as conclusive evidence of fraud in itself.

We do not see how the court could properly have charged the ju.ty different, without taking the case from them altogether. The jury were instructed that the circumstance of possession being retained, was’prima facie evidence of fraud, and it was left to them to determine whether there was actual fraud in the transaction. Our reports are full of cases declaring the same doctrine.

Motion overruled.