author: *J. R. Swan, J.

text:
    Charles A. Roxborough v. John W. Messick et al.
    When the note of a third person is transferred, bona fide, before due, as collateral security, and for value, such as in consideration of a loan, or advancement, or a stipulation, express or implied, of further time to pay a pre-existing debt, or in consideration of a change of securities of a preexisting debt, or the like, the holder of such collateral will be protected from infirmities affecting the instrument before it was thus transferred.
    But when a debt is created, without any stipulation for further security, and the-debtor afterward, without any obligation to do so, voluntarily transfers a negotiable instrument, to secure the pre-existing debt, and both parties are-left, in respect to the pre-existing debt, in staiuo quo, no new consideration, stipulation for delay, or credit being given, or right parted with¡ by the creditor, he is not a holder of the collateral for value, in the usual course of trade, and receives it subject to all the equities existing against it at the time of the transfer.
    In error to the Superior Court of Cincinnati, in general term.
    This was an action, brought in the Superior Court of *Cin- [440 cinnati, by Messiek & Co., the plaintiffs, against Roxborough,, maker, and "Wilcox, indorser, of a promissory note.
    On the trial, at the special term, it was proved that the defendant, Roxborough, had purchased the interest of his partner, Wilcox, in a grocery-store — the price being five thousand dollars — and Roxborough made his ten notes, for five hundred dollars each, payable, at different dates, to Wilcox, or order, one of which was-sued upon in this action. These notes were transferred to the plaintiffs, Messiek & Co., to secure a large sum of money, due by Wilcox to them. Messiek & Co. received the assignment of the notes in good faith, without any knowledge on their part, that. Roxborough had any equity that he could assert against their payment. The defendant, Roxborough, Wilcox, the payee of the-notes, and Messiek, one of the plaintiffs, were examined as witnesses on the trial. The testimony of Messiek repelled any presumption that Messiek & Co., in receiving the notes from Wilcox,, incurred any new responsibility, or gave further time, or changed, in any manner, their relation to Wilcox, in respect to his indebtedness to them.
    On this state of facts, the defendant, Roxborough, contended, that as the notes had been transferred as collateral security, merely, for a pre-existing debt, the plaintiffs were not entitled to the protection given by law to indorsees for value. The judge, however, held that the plaintiffs were indorsees for value, and-protected from all the equities of the maker. This ruling was given to the jury, who rendered a verdict for the plaintiffs; exception was taken \ and the law, thus stated, affirmed by the Superior Court, at their general term. This petition is filed to reverse the judgment of affirmance.

      *Ball & Skinner, for plaintiff in error:
    The indorsee of a negotiable promissory note, receiving it in good faith from the payee, without notice, and before maturity, as collateral security for a pre-existing debt, due him by the payee, where no new consideration is given, takes it subject to all the equities which may exist against the payee, in favor of the maker, at the time of indorsement. Brooks v. Whitson, 7 Smed. & Marsh. 513; Bramhall v. Becket, 31 Maine (1 Red.), 205; Holmes v. Smith, 4 Shop. 177; Norton v. Waite, 2 Appleton, 175; Jenness v. Bean, 10 N. H. 266; Williams v. Little, 11 N. H. 66; Brush v. Scribner, 11 Conn. 388; Washington Bank v. Lewis, 22 Pick. 24; Chickopee Bank v. Chapin, 8 Met. 40; Blanchard v. Stevens, 3 Cush. 168; Kirkpatrick v. Muirhead, 16 Pa. (4 Harris,) 117; Walker v. Geisse, 4 Whar. 258; Depeau v. Waddington, 6 Whar. 220; Petrie v. Clark, 11 Serg. & R. 377; Stalker v. McDonald, 6 Hill, 93; The Bank of Salina v. Babcock, 21 Wend. 499; The Bank of Sandusky v. Scoville, 24 Wend. 115; Coddington v. Bay, 20 Johns. 637; Small v. Smith, 1 Denio, 583; White v. Springfield Bank, 3 Sandford, 222; Kimbo v. Lytle, 10 Yerg. 428; Michol, Hill & Co. v. Bate, Ib. 429; Wormley v. Lowry, 1 Humph. 468.

      Miner, Clark & Oliver, for defendants in error:
    They cited same case, reported in Handy’s Sup. Court, 348, and the cases cited there, including Carlisle v. Wishart, 11 Ohio, 172; Swift v. Tyson, 16 Pet. 1; 8 Met. 40; 3 Cush. 162; 2 Hill, 301; 9 Gill, 137; 2 Smith (Ind.), 89; 4 Cond. Louisiana, 553; 2 Ellis & Blackburn, 88; 3 Kent’s Com. 96; Story on Promissory Notes, sec. 186; also, Atkinson v. Brooks, 26 Vt. 569; 3 Kelley (Ga.), 47.
   *J. R. Swan, J.

The question made in this case is, whether, if a debtor transfers to his creditor a negotiable note before due, as collatei’al security to a pre-existing debt, without any consideration other than the mere fact of a prior indebtedness (for all other consideration, in the case before us, is repelled by the testimony, particularly the testimony of the plaintiffs), the creditor holds it dichargod from all defenses and equities existing between the maker and debtor.

There are many rules of law which, in their application to particular cases, do great injustice, but which are inexorably applied, because the general benefits derived from them can only be obtained by uniform adherence to them ; and the individual cases of hardship are altogether outweighed by the public benefits and public confidence derived from uniform apiffication. Among these rules .are some relating to negotiable paper. The necessities of the commercial world require that bills of exchange and promissory notes .should possess some of the attributes of money and exchangeable value; and to clothe them with these attributes, and to give parties confidence in their reception, it is necessary to protect them in the hands of a holder for value, from defenses growing out of the dealings of the prior parties. The rule frequently operates harshly and unjustly, and, being founded on commercial policy, is •therefore applicable only where the interests of trade require it. Hence the rule, tljatif the holder has not taken the paper for value, or in the usual course of trade, or in ignorance of the defects, he .stands in no better situation than the indorser from whom he received it. Commercial policy does not require such a holder to be protected against the defenses of the prior parties. But if the paper has been transferred before due, in the usual course of trade, for value, to a person who had no notice of such defects, commercial •^policy requires that such bona fide holder shall hold the paper [452 ■discharged from such infirmities. The exceptions above stated are as fundamental as the rule itself. The question now before us, then, is whether the plaintiffs in this case took the paper for value in the usual .course of trade.

The weight of authority seems to settle the principle, that where .a negotiable instrument of a third person is transferred before due, in payment of a pre-existing debt, and is bona fide received by the creditor, without notice, the defense existing as between the prior parties, can not be set up against such holder. Bond v. Central Bank, 2 Kelley (Ga.), 106; Valette v. Mason et al., 1 Ind. (Smith,) 89; Homes et al. v. Smythe, 16 Maine, 177; Williams v. Little, 11 N. H. 66; Reddick v. Jones et al., 6 Iredell, 107; Swift v. Tyson, 16 Pet. 1; Brush v. Scribner, 11 Conn. 388, where the English cases are reviewed; Carlisle v. Wishart, 11 Ohio, 172. The payment of a debt is as much a commercial transaction as a sale of goods ; and if. one parts with his goods or money upon the faith of a transfer of negotiable paper as payment, and is protected from equities, thei’e seems to be an equally good reason for holding, that if one, giving credit to such paper, parts with and discharges an obligation to pay money, he has, in contemplation of law, parted with property of as high a character as goods. After receiving negotiable paper in payment of a pre-existing debt, the creditor can not maintain an action, upon the debt he has thus discharged, merely because the maker of the negotiable paper he has received in payment might have had some defense against it in the hands of the payee, from -whom he received it. For the creditor, having parted with a right, there is a sufficient consideration; and something more is-necessary, to enable him to recover his debt which he has sur453] rendered. He *may be restored to his right to recover the-amount of his debt, if the maker afterward avoids the note or paper in his hands, by a defense which arose prior to the indorsement. But the creditor, having thus parted with his property, is justly remitted to his original right to recover his deb¿, in like manner, and to the like extent, as where the negotiable paper-of a third person is taken for goods sold, upon failure afterward to recover upon the paper transferred in payment of the goods. There is, therefore, no substantial difference between the consideration for the transfer of negotiable paper in payment of a precedent.debt, or in payment of goods sold at the time of such transfer. Such was the principle decided in Swift v. Tyson; 16 Pet. 1, and in relation to which Chancellor Kent, in note to 3 Com. 81 (8 ed. 97, note c), says he is inclined to concur as the plainer and better doctrine.

It will be perceived that the ground upon which the holder of negotiable paper, taken in payment of a precedent debt, is held to 'be a holder for value, is, that he receives the paper as a payment of the original debt, whereby the original debt is, at least for the time being, discharged. The creditor is, in effect,-a purchaser of the negotiable paper ; and for it he parts with the original obligation of the precedent debt, changing thereby his relations to his debtor and the liability of the debtor to him. And it should be borne in mind that it is this new adjustment of the precedent debt that makes the creditor a holder for value. It seemed necessary to briefly refer to these cases in relation to the consideration growing out of the payment of a precedent debt, by the transfer of negotiable paper, to bettor understand the rule in relation to the rights of the holder of negotiable paper received as security merely for a precedent debt.

When the note of a third person is transferred bona fide *before due, as collateral security and for value, such as a loan or further advancement, or a stipulation, express or implied, of further time to pay a pre-existing debt, or a further credit, or a change of securities of a pre-existing debt, or the like, the assignee of such collat'eral will be protected from infirmities affecting the instrument before it was thus transferred. If, however, a note is transferred as-collateral security to a pre-existing debt, without any consideration,, so that the transfer is a mere voluntary act on the part of the-debtor, and is received by the creditor without incurring any new responsibility, parting with any right, or subjecting himself to any loss or delay, and leaving the subsisting debt precisely in the condition it was before such collateral was transferred, the holder has-not taken the note for value, nor in the usual course of trade; and to hold otherwise, would be a departure from the established rules-of law governing the rights of parties to negotiable paper, and losing sight of the grounds of public policy upon which the law is-founded.

The case of Coddington v. Bay, 5 Johns. Ch. 54; 20 Johns. 637, has been frequently commented upon, and sometimes treated as a case relating to a transfer of negotiable paper in payment of a precedent debt, and sometimes as a case relating to the transfer of negotiable paper as security merely for liabilities previously incurred.. This confusioi? has arisen from what was said by senators in the-court of errors. Chancellor Kent, in delivering his opinion in the-original case, said: “ The notes were not negotiated to them in the usual course of trade or business, nor in payment of any antecedent and existing debt, nor'for cash, or property advanced, debt created, or responsibility on the strength and credit of the notes.” 5 Johns. Ch. 57. We are not aware of any case which impairs the principle thus s'tated. When collateral security has been taken for *a [455 -precedent debt, courts have, from facts and circumstances, sometimes implied a stipulation on the part of the creditor to give further time for payment, and thus found a consideration for the-transfer of the collateral.' We do not impugn such finding by courts. In the present case, however, any such stipulation, express- or implied, is repelled by the testimony, and did not cnter-into the consideration of the court.

When, then, a debt is created without any agreement for security, and the debtor afterward, without any obligation to do so, as in the-case before us, voluntarily transfers a negotiable instrument to secure the same, and both parties are left in respect to the debt in. statu quo, we are unable to see what value or consideration, recognizable by traders, was paid for the instrument, or how such gratuitous favor can be deemed a usual transaction in the course of trade, or indeed as any trade or reciprocity of values at all. To-"hold that the unchanged condition of the precedent debt formed a present consideration for doing what the obligations of that debt did not require, is raising a consideration by assertion when none in fact exists.

Our view of the law upon this subject is sustained by direct and well-considered adjudications in Maine, Bramhall et al. v. Beckett, 31 Maine, 205; in New Hampshire, Jenness v. Bean, 10 N. H. 266; Williams v. Little, 11 N. H. 66; Virginia, Prentice et al. v. Zane, 2 Grattan, 262; Pennsylvania, Petrie v. Clark, 11 Serg. & R. 377; Kirkpatrick v. Muirhead, 16 Penn. (4 Harris,) 117; Tennessee, Kimbro v. Lytle, 10 Yerg. 417, 428; Mississippi, Brooks et al. v. Whitson, 7 Smedes & Marsh. 513; and New York cases, supra.

The same rule is recognized in North Carolina, Roddick v. Jones, 6 Iredell, 109, per Chief Justice Ruffin.

Some cases are referred to by the court below, and the counsel ■456] for the defendant in error, as adopting a different *rule, which it is proper to notice; for we think it will be found that they do not •conflict with the rules we have stated.

In the case of Atkinson v. Brooks, 26 Vt. 569, it was held that the indorsee of a-bill of exchange, transferred to him as collateral security for a pre-existing debt, past due, is, prima facie, a holder for value, and takes the bill discharged of equities. The court say: “ One would scarcely part with the collateral, unless he expected more or less indulgence on account of it; and when the prior debt is suffered to remain uncollected, it is, under the circumstances, fair to conclude such was the stipulation.” And, in summing up, the court say: “ A note or bill, negotiated in security for a debt not yet due, is not upon sufficient consideration ordinarily, unless the creditor wait, in faith of the collateral, after his debt becomes due. So too, probably, if it was shown, positively, that the holder gave no credit to the indorsed bill, and did, in no sense, conduct differently on that account, he could not be regarded as a holder for value.”

In the case of Gibson et al. v. Conner et al., 3 Kelly (Ga.), 47, it was held that a note, transferred as collateral security for a preexisting debt, came within the common commercial rule. The case is decided upon the authority of the obiter dictum of Justice Story, in the case of Swift v. Tyson, 16 Pet. 1. The court seem to concede that there should be some valuable consideration for the trans-fer, and they say that “ the forbearance to press the debt, which is usually a part of the understanding of the parties in such eases, is-valuable to the transferer.”

In the case of Vallette v. Mason et al., 1 Ind. (Smith,) 89, it does not appear whether the note was transferred as collateral security at the time the debt was created, and as a part of the consideration therefor, or afterward.

*In Palmer v. Richards, 1 Eng. Law & Eq. 529, the [457 drawer of a bill of exchange, which had been accepted, indorsed.it in blank, and delivered it to A, as agent, to get discounted; but A, instead of doing so, negotiated it to B, a bona fide holder, as-security for an advancement of money; and it was held a valid indorsement by the drawer to B.

In Gwynne et al. v. Lee et al., 9 Md. (Gill,) 138; Washington Bank v. Lewis, 22 Pick. 24; Chicopee Bank v. Chapin, 8 Met. 40; the collaterals were transferred as security when the debt was contracted, and formed a consideration for the credit. The same is. fairly to be inferred in the case of Vallette v. Mason et al., 1 Ind. (Smith,) 89.

In Williams v. Smith et al., 2 Hill (N. Y.), 301, the collateralswere transferred as security, upon an agreement to become indorser; and indorsements were afterward made in pursuance of the agreement; and the court held, that the consideration for the-transfer was tantamount to an advance upon a.purchase, and not a. collateral security.

The case of The Bank of the Metropolis v. The New England Bank, 17 Pet. 174; 1 How. S. C., 234, related to mercantile lien,. and has no application to the question before us.

The remark of Judge Martin, in King v. Gayoso, 4 Cond. La. 553, quoted in the opinion below, that a note, or bill negotiated to raise money,'by discount or pledge, may be deemed a transaction.in the usual course of business, is in accordance with our view of the law.

All that is said in Swift v. Tyson, 16 Pet. 20; Blanchard et al. v. Stephens, 3 Cush. 168; Carlisle v. Wishart, 11 Ohio, 172, Poirier v. Morris, 20 Eng. Law & Eq. 103, in regard to the rule to be-adopted where negotiable paper is taken as collateral security, for a pre-existing debt, is obiter; and, if entitled to any weight, does-not sanction the idea, that the creditor receiving such collateral, must be treated *as a holder for value, and in the usual [458 course of trade, where there is no agreement to wait on the prior--debt, or to forego any right whatever. Nor have we been able to find any ease in which a negotiable instrument had been transferred to a creditor, merely as a collateral security for an existing ■debt, the right of action on the original debt not being altered, no .stipulation, express or implied, for further time to pay existing, or other new consideration intervening, that the creditor has been held to be an indorsee and holder, in, the usual course of trade, for value.

In the case before us, the plaintiffs, when they received the notes .as collateral security, parted with nothing. They gave no credit for them. They are, in no sense, purchasers of the notes. The creditor was to-'derive no benefit, whatever, from their transfer. 'The debt, -which the collaterals secured, was unaffected by the transfer. The transaction was, simply, a naked pledge of negotiable instruments, collateral to a pre-existing debt, without any ,new consideration whatever moving between the parties.

The plaintiffs, therefore, were not holders for value, in the usual ■ course of trade, and the notes in their hands were subject to the . equitable defenses of the maker.

Some apology is needed for occupying so much space in the expression of our views in this case. We entertain the highest respect for the judicial determinations of the Superior Court of Cin.cinnati, in general term; and inasmuch as the grounds of their ■ decision, in this case, have been reported, and involve a very important rule of mercantile law, we deemed it due to the profession, .and to the deserved reputation of the court, whose judgment we reverse, to state, fully, our reasons for so doing.

Bartley, C. J., and Brinkerhoee, Bowen, and Soott, JJ., concurred.


source: Caselaw Access Project

author: Brinkerhoff, J.

license: Public Domain

text:
    *Benjamin-Davenport v. The Widow and Heirs at law of John Sovil.
    ,S., with his wife, executed to D. a mortgage to secure a debt, and died. • Ou condition broken, D., proceeding against the widow and heirs of S., obtained a decree for sale, bid in the premises, sale confirmed, and deed made to D. for the premises described in the mortgage. It is then first discovered that, by mutual mistake of tbe parties, the description in the mortgage did not embrace the land intended to be mortgaged, and which S. did own, but embraced other land, which S. did not and never claimed to own. Held—
    Parol proof is competent to establish such mistake, and the mortgage may be reformed and enforced in the same proceeding.
    The presumption being that the contract, as reduced to writing, embodies the real intention of the parties, courts ought not to x>roeeed on the ground of. mistake, without very clear and satisfactory proof of its existence.
    The mortgage, as reformed, is not merged in the former decree; and as the original mistake infects all the subsequent proceedings, they are nugatory.
    The mortgage, having been executed prior to the taking effect of the act of March 22, 1849, “to give additional security to land titles in this state,” can not be reformed as against the widow.
    'The land embraced in the mortgage, as corrected, having never been appraised or sold, ought now to be appraised and sold, subject to the dower estate of the widow of S. therein.
    In error to the court of common pleas of Monroe county.
    The plaintiff in error was the plaintiff below.
    The defendants in error are the widow and heirs at law of John Sovil.
    The material facts stated by the plaintiff, in the petition filed in the Monroe common pleas, are the following:
    On the 15th December, 1845, Sovil and wife undertook to give plaintiff a mortgage, to secure a certain debt Sovil owed him, on a •certain tract of land Sovil had purchased *of one Donahoo; [460 the debt being for advances of goods, etc., made to Sovil, on credit, by.the plaintiff, during the time Sovil was making payments for •the land; and upon the assurance, on the part of Sovil, that when he got title to the land he would secure plaintiff’s claim by a mortgage on the same.
    The Donahoo land was the southwest quarter of the northeast quarter of section 10, township 7, range 7, Monroe county. In the mortgage executed and delivered by Sovil and wife to plaintiff, the land was, through the mutual mistake of the parties, described as •the southwest quarter of the northwest quarter of section 10, etc. ■The mortgage was filed and recorded, and the mistake in describing the quarter was not discovered until after Sovil’s death, and until after a sale to plaintiff of the land described in the mortgage under .an order of court, in proceedings by him ag'ainst the defendants to foreclose the mortgage. The sale was confirmed, and the widow and heirs (who had, up to that time, been in possession of the .Donahoo land), supposing it was the land described in the mort-'
      gago and the land sold, yielded the possession of' the same to the-plaintiff.
    Sovil had no title to the land described in the mortgage, but did have title to the Donahoo land at the time the mortgage was made, and lived on it before and up to the time of his death, but neither-had, nor claimed to have, title to any other land.
    Some time after the defendants left the land, having discovered the mistake in the description of the same, they returned to the land, and were occupying an old house on a part of it at the time-plaintiff filed his petition in the court below, alleging that the mortgage debt had been satisfied by the sale of the quarter which was 461] made under *the order of court, and disputing the right of the plaintiff to the Donahoo quarter.
    The petition below asked the court to order the defendáis to yield up to the plaintiff full.possession of the Donahoo land, to correct the mistake, and for alternative and general relief.
    To the jietition stating the foregoing facts, the defendants filed a demurrer, setting out as causes of demurrer:
    1. That the petition shows that the plaintiff’s mortgage was fully satisfied by the judicial sale therein mentioneu.
    2. That the court has no jurisdiction of the subject of the action.
    3. That the petition does not state facts sufficient to constitute a. cause of action.
    The court sustained the demuiTer, and rendered judgment against, the plaintiff for costs.
    To reverse this judgment, the present petition in error is prosecuted.

      E. Archbold, for plaintiff in error, cited:
    2 Johns. Ch. 585; 4 Ib. 145; 1 Story’s Eq. 172, 176, 184, 185, sec. 155; 16 Ohis, 490; 18 Ib. 116; 19. Ib. 24; 2 Kinn. Law Comp. 251; 6 Ib. 192; 10 Ib. 235; 2 Kent’s Com. (4 ed.) 491, 552, 553; 1 Hare & Wall (pt. 1), 551, 553; Sug. on Vend. 190; 3 Washb. (18 Vt.) 414; 4 Scam. (111.) 13; Blessing v. Beatty, 1 Rob (Va.); 1 Ed. Ch. 477; 23 Miss. 81; 20 Maine, 363.

      D. H. Wire, for defendants.
   Brinkerhoff, J.

It is hardly possible to imagine a case resting-on stronger or clearer principles of natural equity than that made-by tbe petition and admitted by the demurrer. The plaintiff ought, unquestionably, to be relieved, ^unless, in the peculiar posi- [462 tion in which an innocent and not unfrequent mistake has placed him, he is precluded from its attainment by some inexorable rule of law.

At the outset of our inquiries, it is proper to notice: 1. That, there being in the petition a prayer for alternative and general relief, this court, and that to which it may be remanded, will be restricted to no particular mode or measure of relief, but will be entirely at liberty to adapt either to what may be demanded by the particular circumstances of the case, as they may be developed; and, 2. That the children and heirs of Sovil, having succeeded to-his rights and equities, and no more, and there having been, so far as appears, no alienation of, or contract affecting, the land which Sovil did own, and intended to mortgage, intervening, prior to the commencement of this proceeding, we are entirely unembarrassed by any claims in favor of any third party; and the case, therefore, is to be decided with a view solely to the relations and consequent equities of the original parties to the contract of mortgage.

The plaintiff, alleging a mutual mistake of the parties in the description intended to identify the entire subject-matter of the mortgage — -a mistake vital to the entire contract — seeks, on the ground of that mutual mistake, to reform that contract, so as to make it what the parties intended and justice required it should be, and what, had no mistake of fact occurred, it would have been; and then to enforce the contract thus .reformed. Whether this can- be done, is the first question to bo considered.

Whether a plaintiff,' seeking affirmative relief, can thus reform and then enforce a written contract, on the strength of parol proof alone, and against an answer denying the alleged mistake, is a question in reference to which, it must be admitted, there is a decided and irreconcilable conflict of authorities. • In the affirmative, we have the ^opinions of those eminent chancellors, Kent [463 and Story, given after mature and repeated deliberation. Gillespie v. Moore, 2 Johns. Ch. 585; Keisselback v. Livingston, 4 Ib. 144; Story’s Eq. Juris., sec. 153, et seq. The correctness of these opinions seems also to have been uniformly held or recognized in Ohio, Hunt & Phillips v. Freeman, 1 Ohio, 490; Young v. Miller, 10 Ohio, 88, 90; McLouth v. Rathbone, 19 Ohio, 21, 24. And we may fairly infer that this holding has commended itself to legislative approval, for, in the midst of this course of judicial action, the act of March 22, 1849, “to give additional security to land titles” (Swan’s Stat. 314), was passed, providing that errors, mistakes, and defects in the •deed or other conveyance of husband and wife, thereafter to be executed, and intended to convey or incumber the lands or estate of •the wife, or her right of dower in the lands of her husband, might be corrected, amended, and relieved, against, in the same manner ¡and to the same extent as the deeds or conveyances of other persons.

It is admitted everywhere that a defendant in equity may allege, and prove by parol, a mistake in a contract sought to be enforced against him; and we are unable to perceive any good reason why a distinction should be made between a -plaintiff and defendant in cases of this kind. That it is difficult or impossible to reconcile this doctrine with the letter of the statute for the prevention of frauds and perjuries, may be admitted; but it would be quite as •difficult to reconcile with that statute the unquestioned doctrine that a parol contract for the sale of lands, when partly performed, is not within its operation. In both cases we-proceed on the ground, that to allow the statute to operate would be to give success and effect ■to the very evil the statute was designed to prevent. And, so far as a uniform course of judicial determination can settle anything, 464] it *would seem to be as well settled, at least in Ohio, that mutual mistake of the parties to a contract concerning lands will take the case out of the statute of frauds, as that a part performance will do so.

It may indeed be a question whether the ingrafting, by judicial decision, of any exceptions on the strict and literal provisions ■of the statute, was warranted by sound policy. But this was a question not as much for us as for those who have preceded us. The .principle and practice of allowing such exceptions has now been •carried too far to admit of their being shaken, except by direct legislation ; and the equity of the established exceptions to the operation •of the statute, appeals too strongly to the general conscience to warrant the anticipation of any such interference.

Contracts concerning lands, then, may be reformed, on the ground •of-mutual mistake of the parties to them; and when thus reformed may, in the same proceeding, be enforced; and such mistake may be proved by parol. But it ought not to be forgotten that the contract, as committed to writing, is properly presumed to be the best evidence of the real intention of the parties, and therefore, before •courts proceed to administer a remedy for the alleged mistake, they ■.should require its existence to be established by very clear and satisfactory evidence.

But in this case, the mistake not only occurs in the mortgage, but has been carried into the decree and sale of the premises described ■in the mistaken mortgage; and it is contended that the mortgage is merged in the decree, and the decree satisfied by the sale. And this presents the second question on which we are to pass.

Here was a total mistake in the description of the land intended to be mortgaged. The mortgage was intended to embrace premises which the mortgagor did own, but by ^mutual mistake it de- [465 scribed only a parcel of land which the mortgagor never did own, and to which he never had or pretended to have any claim. The ■demurrer to the petition admits this; and if it were denied, and •clearly and satisfactorily proved, the case would be the same. Let the mortgage be reformed, and made to conform to the intention of the parties; how then stands the case? The reformed mortgage is not merged in any decree, for there is no decree for the sale of any premises described in the mortgage as corrected and reformed. The ■decree may be satisfied, at least pro tanto, to the amount of the sale; but the decree was based on the mistaken, and not on the true, mortgage; the sale was of land not embraced in the true mortgage; no money or other valuable thing was ever received by the plaintiff; the whole proceeding is infected by the original mistake, and is "therefore baseless, unsubstantial, and nugatory.

In the conclusion at which we have arrived on the question, we are not without the support of highly respectable authority. The case of Blodgett et al. v. Hobart et al., 18 Vt. 414, presented a question exactly analogous to that now before us, except that there was a decree of absolute foreclosure, instead of a decree for sale of the mortgaged premises, as in this case; and the misdescription went to a part, instead .of the whole, of the mortgaged premises. It was there held that, if the mistake was mutual, and be not discovered until after a decree of foreclosure has been obtained upon the mortgage, and the time fixed by the decree for the payment of the mortgage debt has expired, and the mortgage be then ordered to be reformed, the decree of foreclosure will be opened, so as to permit the mortgagor to redeem the entire premises by payment of the entire sum due upon the mortgage.” And the cautious and carefully con-sidered observations of *Ranney, J, in Hollister v. Dillon, 4 [466 Ohio St. 209, are of like- tendency. We are of opinion, therefore, that the decree and sale under the mistaken mortgage constitute no-just obstacle to the plaintiff’s relief; especially as he will, by the record of this case, be forever estopped from claiming any title to premises purchased under the decree.

At present the case stands on demurrer to the petition, which admits the facts to be as alleged by the plaintiff. Of course it is impossible to foresee what developments may be made in the proof, if proof shall be taken in the court below, after the case shall be remanded, or what modified form it may assume; but if, on the final hearing of the case, the facts shall satisfactorily appear to be substantially as they are alleged in the petition, the decree, after reforming the mortgage, ought to order an appraisement and sale of the premises, as described in the mortgage as corrected; because those premises have never yet been advertised or sold; the attempt to advertise and sell having been totally mistaken and nugatory. But the sale, if made, must be made subject to the widow’s right of dower in the premises. The mortgage can not be reformed aa Against her. Carr v. Williams, 10 Ohio, 305; Purcell v. Goshorn and Wife, 17 Ohio, 105. And the difficulty is not reached by the act “ to give additional security to land titles,” before referred to, as its provisions apply only to deeds and conveyances to be executed subsequent to its passage; and the mortgage here sought to be reformed was executed prior to that time.

Judgment reversed, and case remanded for further proceedings.

Bartley, O. J., and Swan, Bowen, and Scott, JJ., concurred.


text:
    *John Brown v. Wm. Brown et al.
    In error to- the common pleas of Monroe county.
   Brinkerhoff, J.

This case presents, substantially, the same questions as the case of Davenport v. The Widow and Heirs of Sovil, decided at this term, and is in effect decided by it.

Judgment reversed and cause remanded for further proceedings.


author: Bowen, J.

text:
    John Patton v. The State of Ohio.
    The acts and declarations of a conspirator may, after sufficient proof of conspiracy, be given in evidence to charge his fellow-conspirator, but subject always to the limitation that the acts and declarations admitted be those only whi oh were made and done during the pendency of the criminal enterprise, and in furtherance of the common object.
    ’Where the declarations are merely a narrative of a past occurrence, they can not be received as evidence of such occurrence. They must be concomitant with the principal act, and connected with it, so as to constitute a part of the res gesta.

    In error to the court of common pleas of Hamilton county.
    The plaintiff in error was indicted for, and convicted of, miscon•duct in office, as one of the commissioners of Hamilton county.
    The indictment charges, in substance, that he combined with one Samuel B. Arnold to cheat the county, and by falsely representing to oüe of his associates in office (Marine Ruffner), that it was imperatively necessary to rebuild a Abridge across Lick Run, in [468 "that county, immediately, and that the building of such bridge was worth $700, induced his associate to join with him in executing a written contract with Arnold (who, it is charged, applied therefor at the instance of the accused), to rebuild the bridge for that sum; whereas, in fact, it was not necessary to rebuild the bridge in question, nor, even if necessary, was it worth more than the sum of $140, all which the accused well knew; and that, in so fraudulently obtaining the signature of his associate, Ruffner, to the contract with Arnold, and in signing it himself, he was guilty of corrupt misconduct in office.
    The bill of exceptions is very voluminous, containing all the evi■denee, and numerous errors are assigned; but the view taken of the ■case by the court, renders it necessary to state only that it appears from the bill of exceptions, that Arnold built the bridge, and after it was finished, received from Patton and Ruffner an order for the ■stipulated sum of $700, and on the same day obtained the money at the Central Bank; that upon the trial in the court below, after the ■state had rested, Arnold, having been called as a witness for the defense, was asked, upon cross-examination, whether he had not, on the day the money was paid to him, made to one Charles Hilts, at the office of the latter, certain specified declarations as to Patton, which implied not only fraud on the part of Patton in regard to-the making, of the contract for the bridge, but that Arnold was to-give Patton $100 of the money thus paid to him for the bridge. Arnold denied that he had made such declarations ; and after the defense had rested, the state called Hilts, who testified that Arnold stopped at his office, when coming into town to see the commissioners, on the day he drew his money (but whether before or after 469] he received either the order or money, does not clearly *appear), and that while there, Arnold made the specific declaration, in regard to Patton, which, on his cross-examination, he had denied making, and which declarations, if competent for that purpose, tended strongly to prove that Patton was guilty of the misconduct, charged. All of this testimony of Hilts was objected to, but the objection was overruled, and the defendant excepted.
    The counsel for the defense asked the court to charge the jury that the testimony of Hilts, as to the above-specified declarations of Arnold, was competent only for the purpose of impeaching Arnold,, but was not to, be considered as testimony against Patton. The court did charge that such was the law, unless the jury should find, from the other evidence (excluding for this purpose the declarations of Arnold, as testified to by Hilts), in the case “that a conspiracy between Patton and Arnold to defraud the county, existed at the timebut if they should find from such other evidence, “ that a conspiracy was entered into by Arnold and Patton to cheat, and defraud the county on this contract,” they might “take all the-evidence of Arnold, as well as his. declarations in regard to the matter, and give it such weight as, under all the circumstances, they thought it deserved.” The defendant excepted to the entire charge-of the court; and this ruling is among the matters assigned for error.

      Geo. E. Pugh, Worthington & Matthews, and Ferguson & Long, for plaintiff in error.

      C. P. Wolcott, attorney-general, for state.
   Bowen, J.

We are unable to perceive any reason resting either on principle or well-considered authority, which will warrant this-ruling of the court.

It is unquestionably true, that the acts and declarations *of a conspirator may, after sufficient proof of the fact of conspiracy, be given in evidence to charge his fellow, but subject always to this limitation, that the acts and declarations admitted he those only which were made and'done during the pendency of the criminal enterprise, and in furtherance of the common object. Where the declarations are merely a narrative of a past occurrence, they can not be received as evidence of such occurrence. They must be concomitant with the principal act, and connected with it, so as to constitute a part of the res gesta. This is upon the plain ground, that the act and 'declaration of each in prosecution of the enterprise, and while engaged in accomplishing the common design, is to be considered the act and declaration of all, each being deemed the agent of all. 1 Greenl. Ev. 140; United States v. Gooding, 12 Wheat. 460; Am. Fur Co. v. United States, 2 Peters, 358; Stetson v. City Bank of New Orleans, 2 Ohio St. 167, Here the conspiracy charged by the indictment, was the fraudulent combination by Patton with Arnold, in obtaining the contract for rebuilding the bridge. Whether the conspiracy shall be deemed to have continued until the money was actually paid Arnold or not, or whether the latter’s declarations were made before or after he actually received either the order or the money, seems wholly immaterial. In any case, it can not be claimed that the declarations of Arnold to Hilts were made in furtherance of the unlawful enterprise, or accompanied any act done in accomplishment of the common design. They are simply narrative of past occurrences.

The judgment of the common pleas is reversed, and the cause remanded.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.


author: Scott, J.

text:
    *The City of Marietta v. William Slocomb.
    Where payment of a demand can not be enforced, without giving the party against whom it is asserted a day in court, and there is no duress of his person or property, its payment, though made under protest, is, in law, a voluntary one.
    An action can not be maintained to recover back money paid, with full knowledge of the facts, in discharge of an assessment made by a municipal corporation, under the 116th section of the “ act to provide for the organiza- . tion of cities and incorporated villages.”

      Petition in error to reverse the judgment of the district court of Washington county.
    The facts are sufficiently stated in the opinion of the court.

      Clark & Ewart, and J. W. Andrews, for plaintiff in error.

      Nye & Alban, for defendant in error.
   Scott, J.

The defendant in error brought suit, in the court of common pleas of Washington county, to recover back the amount of certain assessments made upon his land and lots, by the plaintiff in error, for the purpose of improving and repairing certain streets in the city of Marietta, upon which said land and lots abutted. The assessments were made by the city council, in accordance with the provisions of the act entitled “ an act to provide for the organization of cities and incorporated villages,” passed May 3,1852, and the acts amendatory thereto; and in accordance with the ordinances, resolutions, and proceedings of said city council, in pursuance of said statute. They were paid by the defendant in error, 472] without suit, *but under protest. The district court, into which the case came by appeal, the intervention of a jury having been waived by the parties, found the facts as above stated, and rendered judgment thereupon against the plaintiff in error for the amount of the assessments so paid, as aforesaid, and interest thereon — • amounting in all to $114.66. In the opinion of that court, “ the said assessments were unconstitutional, illegal, and void.”

The payment, in this case, does not appear to have-been made under duress of person or property, nor to prevent the seizure of either. The 29th section of the act under which the assessment was made authorized its collection 'only by a proceeding at law or in equity.” No summary process was allowed to enforce the collection, without first giving the party his day in court. He had his choice, either to pay the claim which the city preferred against him or contest its validity. With full knowledge of all the facts, he chose to purchase his peace by payment.

This payment was, it is true, made under protest; but there was no duress in the case. There was no reason why litigation, if intended, should not precede rather than follow the payment. In the eye of the law, it was, under the circumstances, a voluntary act; and, being done with full knowledge of the facts, it ends the controversy.

This subject was well considered by this court, in Mays v. The City of Cincinnati, 1 Ohio St. 268, in wbicb, after citing many authorities, it is said: “ This unbroken chain of authority seems to warrant the conclusion that a payment of money upon an illegal or unjust demand, when the party is advised of all the facts, can only be considered involuntary, when it is made to procure the release of the person or property of the party from detention, or when the ■other party is armed with apparent authority to seize upon either, and the payment is made to prevent it. *But, where he can [473 only be reached by a proceeding at law, he is bound to make his defense in the first instance.” This doctrine, well sustained as it is by the authorities referred to in that case, we recognize as law. And it is decisive of the case before us.

Leaving untouched the constitutional question presented in the ■case, we hold the defendant in error is not entitled to recover.

Judgment of the district court reversed, and cause remanded.

Bartley, C. J., and Swan and Brinkerhoee, JJ., concurred.

Bowen, J., was absent.


text:
    John Davis v. Jacob Hines.
    Where a defendant filed a demurrer and answer, at the same time, and in the same paper, to a petition containing but one cause of action, he ought to he compelled to elect between the two incongruous issues he presents, and the paper oüght to be either reformed or stricken from the files.
    In a petition in error in this court, to reverse a judgment of a district court affirming on error a judgment of the common pleas, this court will look only to such errors appearing in the record of the proceedings in the common pleas as were assigned for error in the district court. The district court may look beyond the assignment of errors before it, but it is not obliged to do so.
    Where, in such a case, the common pleas err in overruling a demurrer to a petition, but the defendant takes no exception to such ruling, and -answers over, and goes to trial on, the issues of fact, and the overruling of the demurrer is not assigned for error in the district court, it can- not he taken advantage of here.
    Where a mechanic undertakes and completes a building, as an entire job, by the job, and for an entire price, he need not, in an account filed with the county recorder, in order to secure a mechanic’s lien, make a detailed. statement of his labor and materials. In such case, the entire job may be set down as a single item.
    ^Petition in error to reverse the judgment of the district court of Hamilton county.
    The facts arc sufficiently stated in the opinion of the court.

      Thos. J. Strait & J. T. Crapsy, for plaintiff in error,
    cited: Carson v. White, 6 Gill, 27; Jones et al. v. Alexander, 10 Smed. & Marsh. 629; Green & Bros. v. Ely, 2 Green (Iowa), 508; Weltman v. Thompson, 3 Conn. 438; Ib. 442; Chatteau v. Thompson, 2 Ohio St. 114; Telford v. Wallace, 3 Watts, 141; Wunder v. Caldwell, 14 How. U. S. 444; Hilliard v. Allen et al., 4 Cush. 532-536.

      Stallo, Andrews & Robert L. McCook, for defendant in error,
    cited: Slocum v. Wheeler, 4 H. P. 373; Cobb v. Frazee, Ib. 413; Ingraham v. Baldwin, 12 Barb. 11; Mann v. Brum, 1 Abbott Pr. 281; Byce v. Brown, 7 H. P. 395: 7 Barb. S. C. 412; 1 Chitty Pl. (12 Am. ed.) 671; Sullenberger v. Gest & Mills 14 Ohio, 204; 2 Swan’s Pr. & Pr. 834; 43 Ohio L. 80, sec. 4.
   Brinkerhoff, J.

This is a petition in error filed here to reverse a judgment of the district court of Hamilton county, affirming a judgment of the common pleas of that county against the plaintiff in error and his co-defendants below, Stephen Davis and Carvil Hawkins. The error here assigned is, that “the district court should have reversed and set aside the judgment of the court of common pleas, and not have affirmed the same.”

The facts set out in the petition in the common pleas are, in brief, as follows:

“In the spring of 1849, Jacob Hines entered into a verbal con-475] tract with Stephen Davis, to do the carpenter-work *of a brick house, in the village of Mount Washington, for the gross amount of $550 ; that after said work was 'done, Davis persuaded him to remit $40 from the price. On the 24th May, 1849, they settled, when it was agreed that there was due to him from Davis, the sum of $527. That said house was situate on lot No. 4, Corbly’s first subdivision, in the town of Mount Washington, Hamilton county. To secure a lien, he filed in the recorder’s office, of said county, on the 23d of June, 1849, a written account of the labor performed on said house, with the necessary affidavit required by the statute.

“ That at the October term, 1852, of the court of common pleas-for said county, he recovered a judgment against Davis for $369.00 on account of the work and labor performed on said house, that it remains unsatisfied and unreversed. That after the filing of said' lien, and before the recovery of said judgment, Stephen Davis sold> said premises to John Davis and Carvil Hawkins.”

The account and affidavit are as follows:

May 24,1849.
“Mr. Stephen Davis, debtor to Jacob Hines, doing carpenter-work, etc., at .house in Mount Washington:
“Carpenter-work..................................................... $510 00-
“ To painting and fitting sash @ 4J.............................. 17 74
“Agreed on by us................................................ $527 74
(Signed,) “ Jacob Hines,
“ Stephen Davis.”
State of Ohio, Hamilton County, ss.
“ Before me, D. T. Snelbaker, a justice of the peace, in and for-said county, personally came Jacob Hines, who, being duly sworn according to law, says that the above account of five hundred and twenty-seven dollars and seventy-four cents, against Stephen Davis, is just and true, and that the *balance of throe hundred and [476 twenty-seven dollars, or thereabouts, remains due and unpaid, and is for work and labor done and materials furnished by him, the said Jacob Hines, in building, erecting, and finishing for said Stephen Davis, a two-story brick house, forty feet front, and fifty feet deep, situate in the village of Mount Washington, Anderson township, Hamilton county, on a lot adjoining property of Stephen Sutton, in the rear of Perrine on the south, and Amanda Patton on the north. These proceedings are had for the purpose of procuring-a lien upon the above-described premises, and the appurtenances thereunto belonging, until the above debt of three hundred and twenty-seven dollars, or thereabouts, is paid.
"*• (Signed,) “Jacob Hines.
“ Sworn to and subscribed before me, this 14th June, 1849.
(Signed,) “D. T. Snelbaker,
11 Justice of the Feace.”

To this petition the defendants, Stephen and John Davis, file-what they call a “ demurrer and answer,” in which they say the-petition “is not sufficient in law, because, 1. No account of the items of labor was filed in the recorder’s office, or recorded; 2. No> .suit was commenced on the pretended lien, within two years after the sa-me was pretended to have been perfected.’' And then, “ claiming the benefit of the insufficiency of said petition,” they proceeded-to answer the facts stated in the petition.

The case was.submitted to the court, without the intervention •of a jury. The court find “that the petition is sufficient inlaw, •and that the account of the items of labor, a copy of which is attached to the petition, was filed in the recorder’s office, that suit was brought on said account within two years after the lien was perfected; that at the October term, 1852, of said court, Hines re•covered a judgment against Stephen Davis for $369, on account 477] of said *labor, performed on said house, that said judgment is unreversed and unpaid, and that there is due $391.14; that in •order to secure said account, the plaintiff did file in.the recorder’s office of said county, a written account of the labors performed on said house, according to the statute, and thereby procured a lien on .said premises. That Stephen Davis did convey the'same to John Davis. It is thereupon ordered, that the defendants pay said sum •of $391.14, and costs of suit, within ten days, and, .in default thereof, that said property be sold, and the proceeds applied to the payment •of said judgment.”

The lien which the plaintiff below sought to enforce, arose, if at .all, and was governed by the first, seventh, and eighth sections of the “ act to create a lien in favor of mechanics and others, in certain •cases,” passed March 11, 1843. Curwen’s Stat. 964. Those sections provide as follows:

1. That the mechanic shall have a lien, etc.; 2. That any person entitled to a lien, etc., “shall make an account in writing of the items of labor,” etc., and, “within four months from the time of performing such labor,” etc., “shall file the same in the recorder’s office,” etc., which shall operate as a lien for two years after the commencement of such labor, etc.; 3.' That when any suit shall be commenced on such account, within the time of such lien, the same shall continue until the suit is determined, and the judgment obtained is satisfied.

The filing of a demurrer and answer, and tendering an issue of law and of fact at the same time, and in the same paper, when the petition contains but one cause of action, is certainly a strange practice, and one more honored in the breach than in the observance. The defendants ought to have been compelled to elect between the two incongruous issues they sought to present, and the-paper to have been reformed or stricken from the files. But, as no-motion *for that purpose seems to have been made, we do [478 -not know that the court was obliged to act in the premises on its own motion.

Be this, however, as it may, the court proceeded to pass on the demurrer, and, in overruling the same, and holding the petition to be sufficient in law, without any allegation therein that the suit for-the recovery of the demand for the security of which the lien was claimed, was commenced within two years from the time of the-accruing of such lien, we think the court erred. But, can the-plaintiff in error now take advantage of that error? "We think not; and for three reasons:

1. Because he did not except at the time the decision was made, but proceeded to plead over, and go to trial on the issues of fact.

2. Because it was not assigned for error, in the petition in error-filed in the district court.

3. Because the fact not alleged in the petition was, as appears by the finding of the court, supplied by the evidence; so that the defendants below could not have been injured by the absence of the averment.

In this court the plaintiff in error has assigned generally for-error that the district court erred in affirming the judgment of the common pleas; and under this general assignment, has attempted, by way of subdivision, to assign errors on the record of the proceedings in the common pleas, which were, not assigned in the petition in error filed in the district court. This can not be allowed It was competent, doubtless, for the district court, if it thought-proper and had leisure to do so, to embark in a voyage of discovery in quest of errors not assigned; but it was under no obligation to-do so; and we will not reverse its judgment if we find that it has-correctly decided the questions presented by the plaintiff in error-in his pleading.

*But one error is assigned in the district court on the record [479 of the common pleas. And that is this : “ That said order finds that said Jacob Hines has a lien on the premises therein described, and directs said premises to be sold to pay the same.” And there-is no general assignment of errors.

Did the court of common pleas err in this finding ? And if so, - wherein? A jury having been waived by the parties, all questions. -of fact, as well as law, were submitted for its determination. What testimony was before that court, and what objections, if any, were made to the introduction of the testimony, if any, does not appear, for no bill of exceptions was taken. The want of an allegation in the petition as to the time within which' suit on the demand for which the lien was claimed was commenced is cured by the finding that it was commenced in due time. And in the absence of any bill of exceptions showing the contrary, we must presume ttjat this finding of a matter of fact was based on sufficient eviden.ee, and that this evidence was competent, or, at least, not objected to.

But one question remains; and that is, whether the account of items of labor, filed by the plaintiff below in the office of the county recorder, was, under the circumstances of this case, sufficiently ¡specific and in detail? The account filed is as follows :

May 24, 1849.
“Mr. Stephen Davis, debtor to Jacob Hines, doing capenter-work, •etc., at house in Mount Washington:
“Carpenter-work........................................................$510 00
■“To painting and fitting Bash @ 4J1............................... 17 74
“Agreed on by us.................................................$527 74
(Signed,) “ Jacob Hines,
“Stephen Davis.”

*Now, if this account had, from the nature of the contract and dealings between the parties, properly consisted of a succession •■of particulars forming the subject-matter of a running account, a question as to its sufficiency might well have been made. But ■such is not its character. The petition alleges that the work was undertaken and completed as an entire job (by the job), and for .an entire price. These allegations arc distinctly admitted by the .answer. And in such a case .it would naturally be very difficult, if not imjiossible, for the mechanic to furnish a detailed statement ■ of particulars, and we think the employer has no right to demand it.

On the whole, we are clearly of the opinion that there is no error in the judgment of the district court, and that it ought to be affirmed.

Judgment accordingly.

Bartley, O. J., and Swan, Bowen, and Scott, JJ., concurred.


author: Bartlett, C. J.

text:
    Lessee of John D. Thompson and Thomas W. Thompson v. Joseph Hoop.
    A future contingent interest in real estate, in the nature of a contingent remainder or executory devise, being an interest in the land, known to the law, is transmissible by devise or deed.
    Where, in case of a devise of real estate to a widow for life, and the remainder in fee to one of the testator’s sons, the widow, without following the form prescribed for making her election to take under the will, sets up no claim for dower, but actually and in fact takes under the will, and has the use and occupancy of the premises for a series of years, she would be barred of her dower, and estopped to deny her election to take under the will.
    Where a limitation, carved out of an estate by will, and falling within the “’denomination of a contingent remainder, has been defeated as a [481 remainder by the lapse, or other failure, of the preceding estate, it may, by construction, be allowed to take effect as an executory devise, and be upheld as such, in order to effectuate the intention of the testator.
    When a testator, after a devise of “ the plantation on which he was living,” with all the property thereon, to his widow, devised “ the plantation ” to one of his sons, from and after the death of the widow, the subsequent estate, in case the life estate should fail by the widow declining to lake under the devise, will not be defeated by the rules governing contingent remainders, but take effect as an executory devise.

    No words of perpetuity being essential in a will to pass an estate of inheritance if the language used as descriptive of the estate be general and sufficient to comprehend the whole property, without any words of limitation or provision in the will qualifying the interest devised, a fee in the land will pass.
    Action of ejectment, reserved in the district court of Adams county.
    This cause was submitted in the district court, upon the following agreed statement of facts :
    “ The lessors of the plaintiff are the only children and heirs at law of Isaac Thompson, the devisee of the land in controversy, by the last will and testament of Thos. Thompson, deceased, which was admitted to probate, in the court of common pleas of Adams county, Ohio, at a called court, on the 13th day of November, a. d. 1816, and a copy of which said last will and testament is here referred to and made part of this agreement, marked (A). It is agreed that Isaac Thompson, some years after the death of his father, moved to the State of Indiana, and there departed this life intestate, about •the day of 1825, leaving the lessors of the plaintiff, then infants, his sole heirs at law. It is further agreed that the widow of Thos. Thompson, mentioned in his will, departed this life A. d. 184V, and that all the other children of said Thos. Thompson (except the said Isaac Thompson and his children), on the 5th day of December, a. d. 1833, made and executed a deed for the land in controversy to Thos. Thompson, one of the children of said testator,, and which said deed is also here referred to, and made part hereof, marked (B); and that under this last-mentioned deed, by several intermediate conveyances, the defendant claims the land in controversy. That at the commencement of this suit, the lessor of the plaintiff, Thos. W. Thompson, was in the 36th year of his age, and 482] the lessor of the ^plaintiff, John D. Thompson, was in the 34th year of his age; and that the widow of Thos. Thompson never elected to take under the will of her husband; and that the widow and unmarried portion of the family occupied and used the land in controversy, until the deed was made in 1833, to Thomas Thompson, who took possession and sold the laud to Thos. Johnson, on the 17th day of June, 1837, which said deed .is here referred to, and made part hereof, marked (C), and out of the proceeds of the land, paid and .satisfied the legacies mentioned in the will, to Nancy' Thompson and Henry Thompson.”
    The lessors of the plaintiff claim under a provision in the last, will and testament of Thomas Thompson, deceased, which is set out in the opinion of the court. The statute relating to dower, enacted in 1805, and in force when this will was made (1 Chase’s Stat. 473),. contained the following provision:
    “ That whenever any person shall leave any part of his lands, tenements, or hereditaments to his wife, by will, she shall, within six months after the death of her husband, make her election, whether she will take by the will, or by her right of dower: Provided, that the court may, for good cause shown, give a further time to any widow to make her election, not exceeding eighteen months from the death of her- husband, unless the husband shall specially set. forth in his will that such provision was made and given in addition to the widow’s-right of dower,” etc.
    It was also provided, in the statute in relation to wills, enacted in' January, 1816, and in force, that the dower estate should not be prejudiced by any devise, “ provided, however, that if the widow shall prefer to relinquish her right of dower, and claim under the will, and shall make known such her election to the court of common pleas, within six months from the time of the decease of the testator, her right of dower in the estate of the testator, shall be thereby barred.” 2 Chase’s Stat. 929.

      W. C. Buck and J. H. Thompson, for the plaintiff.

      Thos. McCauslen and J. R. Cockerill, for the defendant.
   Bartlett, C. J.

The right of the plaintiff to a recovery *in [483 this ease, depends on the legal effect of the following- devises in the last will and testament of Thomas Thompson, deceased:

“First. I give and bequeath to my beloved wife the plantation on which 1 now live, with all the property thereon, except so much as will satisfy all my just debts.
“Second. I do also give and bequeath unto my son Isaac the above-mentioned plantation, from and after the death of the widow; two years after Isaac shall pay my son Henry one hundred and fifty dollars; two years after that date he shall pay also my daughter Nancy one hundred dollars.”

It is claimed in the defense : 1. That no estate vested in the devisee, Isaac Thompson, during his life, and that, therefore, none could have descended to the plaintiffs as his heirs at law ; and, 2. That the estate devised to Isaac, was a remainder limited on a life estate to the widow, and that the particular estate having failed, by the omission of the widow to make her election to take under the will, the remainder was 'defeated.

There does not appear to be any ground for difficulty on the first point. Whether the estate devised to Isaac Thompson was a vested remainder or an executory devise, it was an interest which was transmissible to his representatives, on his decease. The doctrine upon this subject, even supposing the interest to have been contingent, would not seem to be a matter of controversy at this day. It is laid down by a writer of standard authority on this subject, that, “ In general, it seems that contingent interests pass to the real or personal representatives, according to the nature of such interests, as well as vested interests, so as to entitle such representatives to them when the contingencies happen.” Fearne on Contingent Remainders, 364. In England, this appears to have been recognized as the law as early as the case of Pinbury v. Elkin, 1 P. Wms. 563, although there had been conflicting decisions on the subject prior to that time. And, in Chauncey v. Graydon, 2 Atk. 616. Lord *Hardwieke said : That where either real or personal [484 •estate is given upon a contingency, and that contingency does not take effect in the lifetime of the first devisee, yet, if real, his heir, if personal, his executor, will be .entitled to it.” The same principle was affirmed in Hodgson v. Rawson, 1 Ves. Sr. 46, and in Medlicot v. Bowers, 1 Ib. 208. In Jones v. Roe, 3 Term, 88, it was urged, that a mere possibility was not assignable in law, and, consequently, not devisable. But it was held by the court in that case, that contingent executory interests wore transmissible and devisable, and were not mere possibilities; and Buffer, J., said, that such an interest was descendible, “ because the person taking it has an interest in the lands, which is known to the laws ;” and Lord Kenyon, in the close of his opinion, said : “ I sincerely hope that this point will now be understood to be perfectly at rest.” In this country,' although there- have been some decisions to the contrary, the weight of authority is the same way. It was so held in Winslow v. Goodwin et al., 7 Mot. 377, where the subject is elaborately reviewed. It is said, however, that the rule is subject to this qualification, that where the existence of the devisee of a contingent interest, at some particular time, enters into the contingency, and constitutes at least a part of it, the contingent interest can not descend. This qualification, however, has no application to the case before us.

'As to the second point in the defense, the inquiry arises, what was the true nature of the estate devised to Isaac Thompson ? Was it a remainder or an executory devise? If the testator devised his ■entire estate in the land, and vested his widow with a certain and fixed life estate therein, the interest devised to Isaac, would have been strictly a remainder; and, as such, it is true, the continuance •of the life estate in the widow would have been essential to support it; and in case of the failure of this as the particular estate, before 485] *the death of the widow, the remainder over would have been void. And if this had been the true nature of the interest devised, the inquiry would arise, whether the particular estate was, in fact, defeated by the failure of the widow to elect to take under the will. By.the devise, the estate would pass at the death of the testator, unless there be some legal impediment to prevent. The statute did not px’ovide that the election of the widow to take under the will, should be a condition precedent to the vesting of the estate devised to hex’, but gave her six months within which to make her election. The provision of the law in requiring the election to bof made, was not necessary to-vest the estate devised under the will, but designed to bar a future claim to dower. It is true, that, had the widow, omitting to elect to take under the will, set up a claim to •dower, that would have divested all her estate under the devise. But where the widow, without following the form prescribed for making her election to take under the will, sets up no claim to dower, but •actually and in fact takes under the will, and has the use and occupancy of the lands devised to her for a series of years, or, as in this case, for over sixteen years, she would, it would seem, be justly barred of dower and estopped to deny her election to take under the will. In this view, the preceding estate would not fail, and the •executory estate would be valid as a remainder. .

But the estate devised to Isaac Thompson was, by construction -of law, and in its legal operation, not a remainder, but an executory devise; that is, such a limitation of a future estate or interest, as the law admits in the case of a will, though contrary to the rules -of limitation in conveyances at common law. In this conclusion we are not unmindful of the rule, that a limitation, whether by •deed or devise, shall, if it possibly can, consistently with other rules of law, be construed to be a remainder, rather than an executory *devise. It is essential to a remainder, whether vested or [481> •contingent, that it have a preceding or particular estate to support it; that it be created at the same time with the particular estate ; ■and that it commence immediately on the termination of the particular estate; and that the particular estate, although it must be less than a fee, must be a certain and fixed right in the land, which is carved out of the estate. Now, in the case before us, the estate devised to the widow, depended on the contingency that she would not claim dower, but elect to take under the will. If, therefore, the estate given to Isaac Thompson could have been a remainder at all, it would have fallen under that class of contingent remainders, which are dependent on the contingent determination of the preceding estate; and would, therefore, have been liable to be defeated by the widow not taking under the will, but claiming her dower. Now, the manifest intention of the testator was to give an estate to his son Isaac, which should commence at the time of the ■death of his widow; and if the estate devised should be governed by the rules established for the government of contingent remainders, the intention of the testator would be liable to be defeated fey the mere act of the widow, and at her-option. But executory devises, which do riot require any preceding estate to support them, were instituted for the purpose of supporting the will of the testator, and effectuating his intention in regard to limitations by will, of future estates or interests in lands, which could not take effect as remainders, consistently with the rules of law. Devises by last will and testament, supposed to be often drawn up when the party is without advice, or when he is in a low and helpless-condition; are always more favored by the law than formal deeds, which are presumed to be made with more caution, forethought. 487] and advice. We learn from 4 Kent’s Com. 264 *(7 ed.), that an executory devise is a limitation by will of a future estate ox-interest in land, which can not, consistently with the rules of law, take effect as a remainder. And another distinguished elementary writer defines an executoxy devise in these words: “Evexy devise of a future interest, which is not preceded by an estate of freehold created by the saxne will, or which, being so preceded, is limited to-take effect before or after, and not at the expiration of such prior estate of freehold, is an executoxy devise.” 1 Jarm. Wills, 778. Now, the estate devised to Isaac Thompson was limited to take effect “■ from and after ” the death of the widow; and the preceding-estate devised to the widow, if it did take effect at all, was liable totei'minate at a time when the widow should refuse to take under the will and assert her claim to dower. So that the estate devised to Isaac, although preceded by an estate of freehold created by the-same will, was limited to take effect after, but not required to take-effect at the expiration of such prior estate. This devise, therefore, was manifestly not intended by the testator to be subject to the-rigid rules which govern contingent remainder's, and, thei’efore, be liable to be defeated by the mere option of the widow. Now, it is. a long established and controlling rule of law, in construing and giving effect to devises, that the manifest intention of the testator must be followed. And one of the pui-poses for which executoxy devises were instituted, is said to have been to give effect to future-estates or executory interests in lands, which could not take effect as remainders, consistently with the rules of law. Hence, where-the limitations carved out of an estate by will, falling strictly within the denomination of contingent x'emainders, have been defeated as x’emainders by the lapse of the preceding estate, they have-been construed to be executory devises, and upheld as such, in order to effectuate the intention of the testator..

*As early as the case of Hopkins v. Hopkins (cases Temp. Talbot, 44), it was adjudged in England, that an estate in remainder, created by devise, which had failed by the lapse of the particular estate, would be construed to be an executory devise at the •death of the testator, leaving the freehold in possession, to descend to the heir at law of the testator, until the executory estate should •commence.

And that case was referred to with approbation in the case of Doe ex dem. Scott v. Roach, 5 Maule & Selwyn, 482, where it was held that a contingent remainder created by will, which failed by the lapse of the particular estate, would be allowed to take effect as an executory devise, in order to carry out 'the intention of the testator.

By the application, therefore, of well established rules of law, the future interest devised to Isaac Thompson, in this will, must be treated as an executory devise, and not liable to be defeated by the failure of the preceding and intermediate estate devised to the widow.

It is further urged in the defense, that, as no words of inheritance •or perpetuity, nor words denoting the quantum of interest in the property disposed of, were employed in the devise, that a life estate •only was devised to Isaac. The language of the will descriptive of the property devised, is, “ the plantation on which I now live.” This is equivalent to the words, the farm, or the land, or “ the property on which Hive,” etc. No words' of inheritance or perpetuity are essential in a will, to pass an estate in fee. In order to effectuate the intention of the testator, the rigid rules applicable to deeds •of conveyance are. in this respect also, relaxed in regard to wills. If the expressions used in a will as descriptive of the estate, are general, and sufficient to comprehend the whole property or estate, without any words of limitation, or other provision of the will qualifying the quantity of interest devised, a fee in the land passes. This *is in accordance with the course of adj udication in this [489 state for many years. Smith et al. v. Berry et al., 8 Ohio, 367. We are of opinion that the terms of the will in this case fairly indicate the intention of the testator to dispose of his entire estate in the land, and not to die intestate, as to a part of his interest therein ; and that, therefore, the interest devised to Isaac Thompson was an estate of inheritance.

The charges for the payment of one hundred and fifty dollars to Henry, and one hundred dollars to Nancv. imposed by the will, could in no sense be construed to constitute a condition precedent to the vesting of the legal title in'Isaac or his heirs.

Judgment for the plaintiff.

Swan, Brinkerhoee, Bowen, and Soott, JJ., concurred.


author: Brinkerhoee, J.

text:
    The City of Ohio v. The Cleveland and Toledo Railroad Company.
    Where the directors of a railroad corporation, under the authority of the act “regulating railroad companies,” pass and enter on their journal a resolution “that the treasurer is directed to allow interest on installments as paid, payable in stock, and carry to the account of each stockholder the interest annually, and when the amount is sufficient, to issue stock certificates in payment; ” and actually do pay such interest to persons making payment of their stock subscriptions subsequent to the passage of the resolution, such resolution accrues to the benefit of parties who had paid their stock subscriptions prior to the passage of the resolution, and constitutes a binding obligation to pay such interest. *
    When a stockholder assigns and transfers his stock, after two years’ interest has accrued thereon under such resolution, the railroad company is bound to pay'said two years’ interest to him, and not to the transferee.
    Interest follows the principal, as an incident to it, so long as it remains an'incident; but where it is separated and set apart from the principal by 490] “actual payment, or by being carried, when due, to the credit of the owner of the principal, in his account with the debtor, and this in pursuance 'of a provision in the contract creating and defining the principal' debt, it is so separated and disjoined from the principal as to cease to bean incident to, and does not follow it.
    Petition in error to reverse the judgment of the district court of' Cuyahoga county.
    The facts are stated in the opinion of the court.

      Prentiss, Prentiss & Newton, and R. B. Pennis, and Banney, Backus & Noble, for plaintiff in error.

      Charles Tracy, and Kelley & Griswold, for defendant in error.
   Brinkerhoee, J.

This is a petition in error filed in this court to-reverse a judgment of the district court of Cuyahoga county, into which the original case was appealed from the common pleas of that ■county, and where the plaintiff in error was plaintiff, and the defendant in error was defendant.

The case was submitted to the court below on an agreed statement, showing substantially the following facts:

On the 31st day of March, 1851, the plaintiff, a municipal corporation, being authorized so to do by an act of the legislature of this state, entitled an act “authorizing Ohio City to subscribe to the capital stock of the Ohio Railroad Company, and for other purposes,” subscribed to the stock of the Junction Railroad Company one hundred thousand dollars, and at the date of its subscription paid the same to the railroad company in the plaintiff’s own bonds, which the railroad company received in full satisfaction of such subscription, at their nominal par valué, and issued to the plaintiff certificates in the usual form for the stock so subscribed and paid for.

On the 8th day of June, 1851, a little less than three months *after the making of such subscription, the directors of the [491 Junction Railroad Company, in pursuance of the authority conferred upon them by section 22 of the act entitled an act “ regulating railroad companies,” passed March 11, 1848, made the following order: Resolved, That the treasurer is directed to allow interest on installments as paid, payable in stock, and carry “to the account of each stockholder the interest annually, and when the amount is sufficient, to issue stock certificates in payment.” This resolution was not carried into execution by the treasurer of the company until after the plaintiff transferred, as hereinafter mentioned, to E. B. Litchfield and others, portions of its capital stock. The Junction company, to raise available means'for the building of their road, subsequently to receipt of plaintiff’s bonds (the precise time not appearing), having guaranteed the payment of the principal of the bonds, and the payment of the interest to accrue thereon semiannually, sold and transferred them to other parties.

On the 17th day of June, 1853, the plaintiff transferred, absolutely, to E. B. Litchfield, of the stock subscribed by it, eighty-nine thousand dollars, and between the 17th day of June, 1851, and the date of the consolidation agreement hereinafter mentioned, to Fisher, Denny & Go., five thousand dollars, and received in payment therefor, of the transferees, ninety-five of the aforesaid bonds-of one thousand dollars each, executed to the railroad company in payment of plaintiffs stock subscription,

On the-lSth day of July, 1853, the Junction Railroad Company, and the Toledo, Norwalk and Cleveland Railroad Company, agreed to consolidate, and bear the name .of the Cleveland and Toledo Railroad Company, and executed the agreement exhibited in the record, to take effect on the 1st day of September following. This con-492] solidation ^agreement was assented to by the stockholders, of the respective companies. By items four and five of this agreement, it is provided, in substance; among other things, that the debts, obligations, and liabilities of each of said companies shall be assumed and paid by the defendant, and that the interest account upon the stock payments of the Junction Railroad Company, shall be made up and closed on the 1st day of September, 1853, and the amount paid to the stockholders. Such payments to be made to the stockholders by the defendant in its own income coupon seven per cent, bonds, having not less than ten years to run, fractions payable in cash. Subsequently to the execution of this agreement, and during the month of August, 1853, plaintiff demanded of the treasurer of the Junction Railroad Company, interest upon ninctyr-five thousand dollars (the amount of the stock transferred to Litchfield and others), from June 8, 1851 (the date of the passage of the aforesaid resolution), to the time of the transfer of such stock.

On the 1st day of September, 1853, the said interest account having been made up to that date, the defendant paid the interest computed on the said sum of ninety-five thousand dollars, to Litchfield and other's, who then held and owned the ninety-five thousand dollars of stock, so transferred to them, and who claimed to be entitled to such interest in virtue of such transfer and ownership of the stock, and the interest on five thousand dollars, the-balance of the one hundred thousand dollars, to the plaintiff, in the mode provided in the fifth item of the consolidation agreement.

To recover so much of the interest thus paid to Litchfield, as accrued on the plaintiff’s stock, prior to its transfer to Litchfield, the plaintiff brought suit. The court below, on this agreed state of facts, gave judgment for the defendant; and this is assigned for error.-

*1. The first question to be determined is whether the defendant was legally bound to pay the interest claimed to anybody? We think it was so bound. In the first place, the Junction company was, by express statute, authorized to pay it. Second, that company, by a resolution of its directory formally entered in its journal, directed it to be paid, and ordered its proper officer to •carry it to the account of the paying stockholder, and thereby •openly and unconditionally acknowledged its obligation to pay it. And third, this obligation was ratified and assumed by the contract of consolidation between the two companies, out of which issued the corporate existence of the defendant; and finally reaffirmed by the act of payment itself, though, as it is claimed, to a party not •entitled to receive it.

It is said, however, that all this is but evidence at most of a naked promise, without any consideration moving from the stockholder, and therefore not obligatory; Let us see:

The act authorizing the payment of interest, or stock dividends, prior to the completion of railroads, was passed at the instance of railroad companies, and for their benefit; and for its own benefit the Junction company availed itself of the privilege thus granted. The resolution directing these payments to be made was adopted in order to afford an inducement to early and prompt payment of stock subscriptions. Every subscriber to stock who paid up his subscription subsequent to the passage of the resolution referred to, would make that payment on the faith of that resolution, and under the influence of the inducement it presented; and it is clear that his payment would be a good consideration on which he might claim the fulfillment of the promise embodied in the resolution.

But how was it with respect to those who, like the plaintiff, paid up their subscriptions prior to the passage of the ^resolution? [494 If they were not to participate in the payment of interest or award of stock dividends, directed to be made by the resolution, then they were clearly injured by the paj^ments made to others. If the interest wore paid in cash, it was taken in part from funds they had contributed, and for a purpose not contemplated at the time of this subscription and payment of stock. If it were paid in stock, then, the relative value of their stock, which was the representative of a certain share of the entire value of the property and franchises of the corporation was, pro tanto, diminished. That payments of interest were made to those subscribers-who paid up subsequently to the passage of the resolution, is not denied; and we think the injury which would thus bo done to the plaintiff, and others similarly situated, is a sufficient consideration to give binding validity to the promise implied in the resolution. Even-handed justice could be administered in no other way than by the payment of interest on stock paid up to all holders of such stock alike, whether their payments of stock subscriptions were made before or after the passage of the resolution.

2. Was the defendant legally bound to pay the interest in controversy to the plaintiff? or was it all properly paid to Litchfield, to whom the stock was transferred by the plaintiff, after two years’ interest had, under the resolution, fully accrued?

The defendant contends that the interest, directed by the resolution to be paid, was but an incident to the capital stock; that the incident, in law, follows and accompanies the principal; and that the unconditional transfer of the stock to Litchfield carried with it and vested in him a right to receive all the interest, or stock dividends unpaid at the time of the transfer.

The legal principle'here asserted is not denied; but we think it 495] does not properly apply to the case before usv *The interest follows the principal as an incident to it, so long as it remains an incident; but when it is separated and set apart from the principal by actual payment, or by being carried, when due, to the credit of the owner of the principal in his account with the debtor, and this in pursuance of a provision in the contract creating and defining the principal debt, it is so separated and disjoined from the principal, as to cease to be an incident to, and does not follow it.

Let us recur now to the terms of the resolution.

Resolved, That the treasurer is directed to allow interest on installments as paid, payable in stock, and carry to the account of each stockholder the interest annually, and when the amount is sufficient, to issue stock certificates in payment.”

Now, by the terms of this resolution, by virtue of which alone the interest could be claimed by any one, and fundamental to the entire arrangement, this interest, “payable in stock,” was annually, at the end of each and every year, to be “ carried to the account ”— that is, we suppose, entered on book to the credit — “ of each stockholder ” for the time being entitled to receive it. It thus became separated and dissevered, at the end of each year, from tho stock on which it accrued, and was set apart as a fixed and vested right in the owner of the stock for the time being. Although the company’s road was yet-unfinished, and the was making no yet, under the operation of this resolution, its stock was rendered analogous, if not equivalent, to a regular dividend-paying stock; and the interest annually .carried to the account of the stockholder, was, in all respects, like an annual dividend actually declared and placed to.his credit. And, in case of a sale of dividend-paying stocks, we supposed it to be a settled rule *that the purchaser [496 takes only the accruing dividend, unless it be otherwise specially stipulated.

And can the fact, that the vendor did not call for his interest thus aparted to him, prior to the transfer of his stock, alter the case ? We think not. By the terms of the resolution, on which alone his claim to interest, or that of any one else, could rest, it was expressly ordered to be entered to his credit at the end of each year, and with that he was entitled to rest content.

But, it is said, this interest was never, as a matter of fact, actually carried to the credit of the plaintiff. We can not admit the validity of this objection in the mouth of the defendant. It ought to have carried it to his credit. Good faith required it to be done, and the law forbids the defendant to derive any advantage from its own' negligence and wrong.

And no claim can be set up here against the plaintiff, on the ground of a want of notice as to his rights. The defendant was-bound to know the purport of its own obligations ; and Litchfield was also bound to know the terms of the resolution, under which, alone he could claim that the interest should be paid to him. And, moreover, it appears that he was the treasurer of the defendant, and, as such, made the payment to himself, or, in other words, retained, the money in his own hands under a claim of right.

We are of opinion, therefore, that the plaintiff is legally entitled to the interest accruing under the resolution referred to, for the-two years preceding the transfer of its stock ; that the district court did err in giving judgment for the defendant; and that the judgment ought to be reversed and the case remanded.

Judgment accordingly.

Bartley, C. J., and Swan, Bowen, and Scott, J. J., concurred..