author: Judge Hitchcock Judge Burnet :

text:
    *Ebenezer Buckingham & Co. v. Granville Alexandria Society.
    Upon motion for an order to sheriff to make a deed, court only look to the execution on which the sale was made, and proceedings under it.
    This was a motion for an order to the sheriff to make a deed for lands sold on a fi.fa. It was certified to the Supreme Court of Licking county, from the court of common pleas of that county? for the want of a constitutional quorum of disinterested judges to decide it, and was reserved for decision at Columbus. The facts were these:
    At the October term, 1820, of the common pleas, the plaintiffs recovered judgment against the defendants for $3,752.62. Upon this judgment a ft. fa. issued in April, 1821, and among other property was levied on south half quarter 3, township 4, range 13, and on another tract of twenty-two and a half acres, on which the Granville furnace was erected. These lands were mortgaged to the bank which was defendant, and the levy was made in conformity with the provisions of the act of February 2,1821, providing for the collection of debts due from banks and bankers. The amount of debt due upon the mortgages and the value of the property were found and appraised according to law, and the sheriff returned that the lands were not sold for want of buyers.
    At the September term, 1822, on the motion of the plaintiffs in execution, the levy and appraisements were set aside by the court. At the next succeeding term, May, 1823, the plaintiffs moved the court to rescind the order of the previous term, setting aside the levy and appraisement. This motion was continued for decision, and at the December term, 1823, an order was made rescinding the previous order, and restoring the parties to all the rights they had secured previous to the order of September term, 1822. At August term, 1824, the appraisement made upon the first ft. fa. was set aside, a new appraisement directed, and leave given to the plaintiffs to release so much of the levy as they might choose. A new appraisement was had, and the property bid off at two-thirds of that appraisement, upon which this application for the order directing a deed was made.

      *Ewing, for plaintiff.
    Irwin, for defendants.
    Judge Sherman did not sit, having been counsel in the cause.
   Opinion of the court, by

Judge Hitchcock

This motion was originally made in the court of common pleas of Licking county; and there not being a quorum of disinterested judges in that court to determine the question, it has been certified to this court for decision, according to the provisions of section 68 of the practice act. 22 State Laws, 64.

It is necessary in this case, as in every other, to inquire what is-the matter in controversy — what is the question to be decided ? The application is for an order upon the sheriff, to make a deed to the purchaser of certain lands, by him sold on execution, at the suit of the plaintiff against the defendants. The case must be considered in the same light as if the execution had been issued from this court. In such case we should not have gone back to inquire whether the judgment upon which the execution had issued was erroneous, or whether an improper order had been made for issuing the execution. If the execution had been improvidently issued the party injured thereby would not be without redress. The proper course for him to pursue would be to move to have the execution, or the proceedings under it set aside. Upon such motion the court might, with propriety, travel back and inquire whether, subsequent to judgment, there had been anything irregular in their own proceedings, or in the conduct or proceedings of their officers.

Counsel for defendants, in argument, treat the question as if it arose upon a motion to set aside the execution and proceedings, or as if the proceedings had been removed from the court of common pleas to this court, by certiorari, for irregularity. In this they mistake the point in issue. Admitting that there was so much irregularity in the proceedings that the court would, upon a proper application, *set them aside, still it does not follow that the motion now under consideration must be overruled. We certainly are not acting as a court of errors to review the proceedings of the court of common pleas. We are in effect acting as a court of common pleas. That court not being competent, in consequence of an interest in some of its members, to decide the motion submitted to them, the duty of making the decision is, by virtue of the statute, transferred to us.

Upon a motion to set aside an execution, as has been before observed, the court can, with propriety, examine the previous proceedings to ascertain whether there has been any irregularity in the orders of the court or in the proceedings of the clerk; but upon a motion similar to the present I apprehend we can look no further than to 'ascertain whether the officer, in making the sale, has pursued the law. I infer this from the nature of the application and from the words of the statute. These words are as follows : “ Provided, that if the court to which any execution shall be returned by the officer, for the satisfaction of which any lands and tenements may have been sold, shall, after having carefully examined the proceedings of said officer, be satisfied that this sale has been made in all respects in conformity to the provisions of the act, they ■shall direct their clerk to make an entry in the journal, that the court are satisfied of the legality of such sale, and an order that the said officers make to the purchaser a deed for such lands and tenements.”

Let us inquire, then, whether the sheriff, in making the sale, complied with the requisitions of the law. From the documents before us it is manifest that he caused the lands to be appraised “by five respectable disinterested freeholders” of the county; that these freeholders were by him duly sworn before they made the .appraisement; that the said appraisers made a return to him of their appraisement, “ under their hands and seals; “ that he forthwith thereafter deposited a copy of the return” with the clerk of the court from which the writ issued;” and that the property was ■sold for two-thirds of the appraised value. It is further manifest that he gave public notice of the time and place of sale, for more than thirty days before the day of sale, by advertisement in a public newspaper, printed in the ^county of Licking, the county in which the land lies, and that the sale took place at the courthouse of said county.

I am at a loss to discover in what particular the officer has failed in his duty. In fact, the complaint is not so much with respect to the officer, as to the court. Upon the whole, “ after having carefully examined the proceedings ” of the officer, I am “satisfied that the sale has, in all respects, been made in conformity to the iprovisions ” of the statute, and that the order must be made according to the request of the plaintiff. Let it be made accordingly.

Dissenting opinion of

Judge Burnet :

Having dissented from the opinion of the court in this case, it becomes my duty to assign the reasons which have induced me to •do so. The cause having been certified to the Supreme Court for the want of a constitutional quorum of disinterested judges to ■hear and determine it, in the court below, it necessarily comes before us as it stood before them, and it is our duty to examine the proceedings as though they had all taken place in this court, for ■the purpose of ascertaining whether they have been such as to entitle the applicant to the benefit of his motion.

I am so unfortunate as to differ from my brother judges, who have taken a part in the decision of this case, at the very threshold, as to the extent of the ground we are authorized, or required to occupy. They draw a very marked distinction between this investigation, and that which would be proper on a motion to set aside an execution. I confess that I do not discover any difference in the latitude of inquiry that is admissible or necessary in the two cases. I do not contend that the court can go behind the •judgment in either case, but I do contend that the object of this ■procedure can not be attained without a thorough investigation of all the proceedings subsequent to the judgment, that are connected with the execution and sale, whether they emanate 'from the sheriff, the clerk, or the court. If, on application like the .present, it should appear that there had been no judgment, or execution, or levy, or that the officer had proceeded to sell after the court had set aside the execution, or if it should appear *that the levy and appraisement had been set aside before the sale, as was the fact in this case, would we be justified in shutting our eyes upon these discoveries, and blindly ordering a deed to he made to the purchaser? I am constrained to answer in the negative. This answer would be forced upon me, by the strict letter of the statute, were I at liberty to overlook the spirit and design of it. In conducting this inquiry, the statute requires three things:

1. The court must examine the proceedings of the sheriff, to as■certain if they have been regular.

2. They must be satisfied that the sale has, in all respects, been made in conformity with the provisions of the act.

3. They must be satisfied of the legality of the sale.

If, on the first branch of the inquiry, the proceedings of the sheriff should appear regular as to the levy, appraisement, return, advertisement, and mode of sale, it would not necessarily follow that the sale had, in all respects, been made in conformity to the-statute. Other parts of the statute might have been violated. When we speak of the legality of a sheriff s sale, we understand that all the proceedings connected with it, from the issuing of the execution, to the striking off of the land, has been regular. To confine the import of that term to its literal signification, which is-the simple act of crying off the premises, would be a narrow interpretation, indeed. The maxim qui heret in litera, heret in cortice, would well apply. Although the acts of the sheriff, in themselves considered, might be unexceptional, yet if it should appear that the execution on which he acted, had been issued by justice of the peace, or that there had been no levy, or that the levy and appraisement had been regularly set aside before the sale, it could not bo said, that the sale had, in all respects, been made in conformity with the act, nor would the court be satisfied with the legality of the sale, because such circumstances would render the sale a perfect nullity, and clearly.show that the purchaser was not entitled to a deed. Such facts as would avoid a deed after it was made, ought to be sufficient to withhold an order for making it ¿ but on the.limited construction which has been given to the statute, the provisions which are most essential to the legality and validity of the *sale must be disregarded. The act requires an execution founded on a judgment of a court having jurisdiction of the subject matter, on which there must be a levy and an appraisement. These are provisions of the act, and if they have not - been performed, the court can not see that the sale has, in all respects, been made in conformity with them. If the statute provides that there shall be a levy and an appraisement before a sale,, and the sale be made without a levy, it appears as plain as an axiom, that the sale is not made in all respects in conformity with the provisions of the statute, because a levy is one of those provisions. If' such matters as those are not to be regarded, this investigation must be a useless sacrifice of time. The form might be dispensed with, and the deed executed at once. From this-view of the subject, I feel it my duty to examine the objections to the levy, including the orders of court in relation to it, as well as the objection to the appraisement and sale.

The defendant objects:

1. Because the statute under which the levy was made (1821) had been repealed before the issuing.of the vend. expo, on which ■the sale was made.

2. Because the levy on which the sale was made, had been set aside by the court, on motion, and at a subsequent term had been reinstated.

3. Because the lands had not been separately appraised, as the statute directs.

4. Because the sheriff rejected a part of the land levied on and embraced in the mortgage, and refused either to value, or sell it, on an allegation that the title of the mortgagor was defective.

It appears from the record that the plaintiff obtained judgment against the Granville Banking Company, and proceeded to levy an execution on sundry tracts of land, mortgaged to the bank, by three separate deeds. The levy was made in April, 1821, under ■the act of 1820, which was repealed by the act of 1822; the act of 1822 was repealed by the act of 1824, under which the sale was made.

In September, 1822, the court of common pleas set aside the whole levy, on motion of plaintiff, the premises having *been twice offered for sale. At the December term, 1823, the court, on motion, rescinded the order of September, 1822, and'directed the levy of April, 1821, to be reinstated. In the interval, a number of executions were issued on judgments at the suit of other creditors, and levied on the same property, by which those creditors claimed the preference. The different tracts contained in the mortgages were not separately appraised, and a part of the mortgaged property was relinquished by the sheriff, on the ground that the title of the mortgagor was defective. These are the most important facts relating to the points that are to be considered.

1. I agree with the majority of the court, that the first objection can not be sustained, because the repeal of the law under which the levy was made, did not affect the execution previously issued, or the levy that had been made on it. The proceedings, as far as they had gone, were valid. The levy was as operative after the repeal as before it. The new law affected only those proceedings that took place after it came into force. The principle assumed by the defendant, would be inconvenient and mischievous in its: consequences.

The act regulating judgments and executions has been fre> quently changed, and if the repeal of one law, by the substitution of another, should render void the steps that had been previously taken, it would be difficult for judgment creditors to recover their-money, as every revision and repeal would make it necessary to commence de novo, so that it would be impossible to calculate when their labors would come to an end. And it may be remarked that the last statute- refers to judgments, executions, and levies previously made, and, by a fair construction, recognizes them as valid.

It has been decided in this court, in several analogous cases, under the practice act, and under the act in question, that such a change as has taken place in this instance does not affect proceedings which have been had, or rights which have been acquired prior to the change, unless it be expressly so directed. It was not necessary for the plaintiff to obtain a new writ and a second levy. Vide G. Arnold v. Fuller’s heirs, 1 Ohio, 458. The authorities cited *by defendant’s counsel, in support of this objection, do not sustain it. Milner’s case, cited from 3 Burr. 1456, and 1 Black. 451, is not applicable. That was a special jurisdiction, given to the justice, by a statute which had been repealed “to all intents and purposes whatsoever,” without providing any substitute. All jurisdiction .on the subject had been taken away in express and strong terms, and the question was not whether the steps that had been taken were regular, but whether the justices were authorized to proceed any farther in any form. The same remark applies to the case of Hollingsworth v. Yirginia, 3 Hall. 378i That was also a question of jurisdiction. By an amendment to the constitution, the jurisdiction of the court had been entirely taken away, and they were necessarily compelled to stay further-proceedings. But such was not the fact in this case; the subject matter in question was, and continued to be, within the jurisdiction of the court, and the change in the law operated only on the proceedings that should subsequently take place.

The execution and levy had been regularly and legally conducted, and as the whole process of execution is one entire act, the pro* ceedings after the levy relate back, and take their effect from the date of the levy.

Passmore’s case, from 4 Dallas, was an indictment for perjury, founded on the bankrupt laws of the United States. It was ponding when the law was repealed: The court determined that the case was not within the saving clause, and the defendant had a verdict. Duane’s case, from 1 Binney, was an indictment for a libel against a public offieer. Pending the prosecution the legislature of Pennsylvania passed a law, declaring that from and after the passage of that act, no person should be liable to prosecution by indictment for the publication of such papers as the one complained of. The court divided in opinion. The majority, however, decided that the act put an end to the prosecution. But there can not be any analogy between these cases and the one before us.

They were on penal statutes, which are not construed by the same rules, nor with the same latitude of discretion as remedial statutes.

*2. The second objection leads to an examination of the power of the court of common pleas over their own orders and proceedings, and of the effect of their rescinding order of December, 1823. They had an' undoubted right to set aside the levy, and when that was done, the parties in interest were placed on the ground on which they would have stood if the levy had never been made. It appears from the record that the order setting aside the levy was made in September, 1822, and that Buckingham permitted that order to stand till December, 1823, a period of fifteen months, during which time other judgment creditors, availing themselves of the right secured by statute, sued out executions, and caused them to be levied on the same property, by which they claim a lien, to the exclusion of the plaintiff. Section 17 of the act regulating judgments and executions provides that no judgment, heretofore rendered, or which may thereafter be rendered, on which execution shall not have been taken out and levied before the expiration of one year, next after the rendition of such judgment, shall operate as a lien on the estate of any debtor, to the prejudice of any other iona fide judgment creditor.

From September, 1822, to December, 1823, Buckingham had no levy on the property in question. His levy having been set aside on his own motion, he stood, as to other judgment creditors, as though no levy had ever been made, and a new execution and levy became necessary; but if it could be admitted that the court had power at the December term, to revoke an order which had long before become matter of record, and to reinstate the levy on the old execution, it must, as to third persons, operate as a levy from that term, and consequently the plaintiff will have lost his preference, because much more than twelve months had elapsed, and other judgments had been levied upon the same property. It is impossible for the order in December, 1823, to relate back, so as to divest rights legally vested before it was made. Such an operation would defeat the intention of the statute.

It appears to me that this question may be brought within a narrow compass.

*Had Buckingham a levy on these lands when the junior judgments were levied?

He certainly had not, as appears from the record, and as his judgment at that time was of more than three years’ standing, he had lost his preference, by section 17 of the statute of 1824, and it was not in the power of the court to restore it, so that, whether the court had or had not power to pass the rescinding order, does not change the effect, for, admitting they had the power, it could not operate retrospectively. The plaintiff’s rights must stand as if his levy had been made at the time of the rescinding order. This principle was fully settled by this court, in the case of Patten v. Hedges, at the present term. It was decided in that case, that after Patten had set aside his levy, he stood, as to all subsequent proceedings, as though no levy had been made, and that the property could not afterward be sold till it was again seized in execution. It was also decided that by setting aside his levy, after the expiration of twelve months from the date of his judgment, he lost his preference by section 17 of the act of 1824, although he had the first judgment, and had made his first levy within the term of twelve months.

3. The third objection renders it necessary to look into the statute subjecting mortgaged premises to execution on judgments against banks and bankers. Section 14 makes it the duty of the officers to ascertain and report to the court the amount due on the mortgage. Section 15 provides, that when lands are mortgaged to secure a sum greater than the value thereof, the interest of the mortgagee shall not be sold for less than two-thirds of the appraised value; and when mortgaged for a sum not exceeding the value thereof, the same shall not be sold for less than two-thirds of the •sum due on such mortgage. Section 16 directs, that when more than one tract is included in the mortgage, the amount due on the mortgage shall be ascertained, and each tract shall be appraised separately, and if the appraised value of the land shall exceed the sum due on the mortgage, it is made the duty of the sheriff to apportion the amount due on the mortgage among the several tracts of land, in just proportion to their appraised *value, and to sell each tract of land contained in the mortgage, for not less than two-thirds of the amount apportioned to the same, liable to be redeemed by the mortgagor, by payment of the amount apportioned to the same. Section 17 requires all lands held by a bank, in fee simple, or in trust, to be valued and sold as in other cases of execution.

It appears from the record, that a large number of tracts of land was levied on, and that these tracts were contained in three separate mortgages, in which different persons were concerned as mortgagors; it was, therefore, the duty of the officer to ascertain the amount due on each mortgage separately, and to make separate appraisements of the several tracts embraced in each mortgage, and in all respects to proceed in the apportionment and sale, under section 16, as though the mortgaged premises had been taken -on separate executions, against different defendants, because, it might be, that the money due on one mortgage was more than the value of the land, and the money due on another was less, in which case, each tract contained in the former would be sold for two-thirds of its value, while each tract contained in the latter would be sold for two-thirds of its proportion- of the mortgage money, apportioned as above. This course must be pursued where the parties to each mortgage are the same, and the necessity for observing it is much more apparent where they are different. If it is not attended to, lands may be offered and sold at two-thirds of their valuation, when the law directs that they be offered and sold at not less than two-thirds of the money due on the mortgage. The officer was not at liberty to proceed as though the lands had been all embraced in one mortgage. By pursuing this course, he has subjected them all to be sold at two-thirds of the valuation, and it was impossible for the court to decide on his report, whether or not some portion of them ought not to have been sold under .that provision, which gives the mortgagor a right of redemption on the terms prescribed.

The proceedings of the officer, in relation to the valuation appear to be defective and irregular in another particular. He has not reported the appraisement of all the Hand, although the statute makes it his duty to cause each tract contained in the mortgage to be appraised, and gives him no discretion on that subject. The report was imperfect in this respect, and'it was impossible for the court to decide under which bi’anch of section 16 the lands ought to have been sold, admitting that it was correct tc treat the three mortgages as one.

4. The fourth and last objection that I shall notice is, the conduct of the sheriff in releasing a part of the mortgaged premises from the execution. One of the mortgages contained one thousand seven hundred and fifty acres, of which about one thousand one hundred acres were valued and sold — the residue having been given up by the sheriff, on the ground that the title of the mortgagor was defective. The objection to the title seems to have been made by the plaintiff, and decided by the officer on his own authority. This step was in direct opposition to the statute, which requires each and every tract to be appraised and sold. It contains no provision for rejecting or omitting any portion of the premises, much less does it authorize an officer to decide on the validity of the title, at the instance of the plaintiff. Questions of title involve matter of fact and of law, which the sheriff is not supposed to be capable of deciding, and the statute, as we should naturally expect, gives him no such authority. Such an examination of title must necessarily be ex parte. The sheriff can hear but one side, and of course there would be but a slender prospect of a correct result if he were, in other respects, competent to decide the question. Such a practice would be fraught with mischief. Judgment creditors might select favorite tracts to the exclusion of others less desirable, and by reducing the reported value of the mortgaged premises below the amount due on the mortgage, might subject them to a sale without the statutory right of redemption. These consequences are serious, and show the impolicy and danger, as well as the illegality of the practice resorted to in this case. It may happen that the title to a part, or the whole of the land contained in a mortgage, is objectionable. The judgment creditor may be embarrassed by that circumstance, but this does not authorize Hiim to select his own mode of getting over the difficulty ' —he is not at liberty to decide the matter himself, or to have it decided in a summary way by the sheriff. The rights of other persons are involved, and must be respected, however inconvenient-the consequences may be to the plaintiff. In.ordinary cases, the creditor may select for himself; but in this case, he is pursuing an-extraordinary remedy, given by statute, and it is necessary to follow it without any material variation. The plan devised by the legislature will be deranged, and some of the most material principles contained in it must be lost, if the valuation does not embrace every tract contained in the mortgage.

On these grounds, it appears to me that the proceedings on the-execution have been irregular — that the sale was manifestly illegal, and that the order applied for ought not to be granted.

      NoTE by the Editor. — Sheriff’s deeds, see note to Walsh v. Ringer, it. 327.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Heirs of Ludlow v. Kidd’s Heirs and others.
    In bill of review, the original bill, answers, exhibits, and depositions are open, for examination where the decree contains no statement of the facts found or principles decided.
    Persons interested in the subject, though not parties to the original bill, made-parties to the bill of review; and where decree is reversed, the bill of review, as to new parties, retained as a supplemental bill.
    This was a bill of review, adjourned for decision here, from the Supreme Court of Hamilton county.
    The case was this: Israel Ludlow died in Hamilton county in the year 1804, leaving four infant children, and a large real estate. Among this was the lot No. 401, in Cincinnati, the legal title to-which had been obtained by John Kidd and Joel Williams. To-obtain the conveyance for this lot, the infants prosecuted a bill, by their next friend, against Kidd and Williams. The case was-strongly litigated, and a mass of exhibits and depositions introduced into the cause. In 1817, the Supreme Court pronounced a. general decree of dismissal, containing no recital of the facts considered as proved, or of the principles of law upon which the dismissal was grounded.
    After this dismissal, the lot was disposed of, in different modes, by Kidd and Williams, and had passed, in separate *parts, into different hands. Kidd and Williams having both deceased, and the heirs of Ludlow attained their lawful age, they prosecuted this bill of review to procure a reversal of the decree pronounced against them, and obtain the original object of their bill.
    In this bill of review they recited the substance of the original bill and answers, of the exhibits and depositions, and set forth the decree of dismissal. They made the heirs of Williams, the devisees of Kidd, and the persons now holding the legal title, defendants, charging them with notice.
    The bill prayed a review and reversal of the decree against the complainants, and a decree for the legal title against those holding it. To this bill the defendants put in a general demurrer, upon which they maintained;
    1. That in a bill of review nothing could be looked into but the decree itself.
    2. That upon the case made the decree was correct.'
    The case was elaborately argued by Hammond and Storer for complainants, and by Fox and N. Wright for respondents. But as the decision upon the first point only is to be reported, it is only necessary to state so much of the case, and insert such part of the arguments as are necessary to understand that point alone;
    N. Wright, in support of the demurrer;
    On a bill of review for errors in law, the court can not inquire into the sufficiency of the proof of any fact; but the original decision of the court upon the effect of the evidence to any disputed fact, must be now taken as conclusive and binding.
    It is a principle familiar to every one, that a bill of review can be brought only for errors in law, or for newly discovered testimony. 2 Johns. Ch. 491; 2 Munf. 309; 16 Ves. 348, 350, 398; 17 Ves. 173; 3 Johns. Ch. 126; 4 Hen. & M. 242; 2 Ball & B. 146; 1 Har. Ch. 141, 142, 452; 1 Vern. 166, 292; 2 Eq. Cas. Abr. 173, 177, 1, 81; Coop. Eq. 89.
    The two classes of cases are entirely distinct, and so treated in all the books. And the same rule is distinctly ^recognized .in the statute of this state of February 19, 1810, regulating pro» ceedings in chancery in force when the original proceedings were had. 14 Rev. Stat. 184, sec. 63.
    The distinction between an error in law and an error in fact (or rather a mistake of fact) is perfectly obvious. If, from the evidence adduced, the court are of opinion that a particular fact exists, when in reality that fact does not exist, it is an error in fact; and for such an error no bill of review will lie unless upon newly discovered testimony. The only remedy for such an error is a. rehearing, and a different rule would utterly destroy the distinction between review and rehearing.
    It is a universal principle of all jurisprudence, that all facts once decided, shall not be again inquired into, unless in the special manner pointed out by law. All testimony is fallible and perishable ; to allow parties, after a lapse of time, and the casualties to which all testimony is subject, to have a reinvestigation of a fact once proved and settled, is dangerous in the extreme. It. opens a door for imposition, for taking advantage of the death of witnesses, the loss or destruction of papers, and the fickleness or-dishonesty of witnesses.
    The rules of new trials at law are strongly analogous. There the only method of re-examining facts is by an immediate application to the court; if the facts are preserved by means of a bill of exceptions, the law arising upon them may be re-examined; but there is no proceeding known by which those facts can be disputed on the record.
    So in chancery the same distinctions are preserved; the law arising on the facts is a matter of review. But is it not absurd to ■ ask this court again to weigh a volume of testimony, and reconsider whether they have rightly estimated its importance? Even the opinion of a jury, once given, is treated as conclusive; and are-the court more fallible than a jury?
    In Combes and Proud, it is said, “ that although the facts on which the court gave judgment were mistaken, yet there is no-ground for a bill of review, after a decree enrolled, but the facts must be admitted true.” 2 Free. 182; cited 2 Eq. Cas. Abr. 174.
    *It is said to be an early and uniform rule in chancery, “that no bill of review shall be admitted, unless it contain either error in law, appearing in the body of the decree, without further examination of the matters of fact, or some new matter arising after' ■the decree, and not any new proof, which might have been used when the decree was made.” Coop. Eq. 89; 3 Atk. 26.
    Chancellor Kent repeats the same doctrine. 2 Johns. Ch. 491; 3 Johns. Ch. 126.
    And it is recognized in all the cases first above cited, and a host of others to which reference may be made. Indeed, it is a most •obvious dictate of common sense. The bill professes to be founded upon errors of law, not of fact. The object of writs of error and bills of review is to render legal decisions uniform, to provide that the law shall not be differently administered by different tribunals, but shall be a certain and settled rule; not to inquire whether a witness is perjured, or whether this man or that is entitled to the greater credit. Apply the above rule to the present • case. The error assigned is, that the decree should have been for the complainants instead of the defendants. To this error they .are confined, for no error can be examined but what is assigned in the bill. Coop. Eq. 95; 1 Har. Ch. 140; 2 Eq. Cas. Abr. 175. What are the facts in the case, from which the law would be in favor of the complainants? It is not stated in the proceedings what facts are taken by the court as proven; and here we might stop, there being no facts stated, showing on the record an erroneous deduction of law from facts, there is no error appears; and the complainants stand in the situation of a party who complains of an illegal decision of court upon certain testimony, but has failed to make that testimony part of the record, by bill of exceptions.
    The rules laid down in the books appear to support this position.
    But the chancery act, before referred to, provides for recording the statement of facts, and the testimony taken down by order of •court, and may, perhaps, extend to embrace all the testimony taken in the case, making it a part of the record; and I am willing to consider the depositions *recited in the bill as a proper subject of examination. The practice which has prevailed under our statute, has been not to set forth the facts which are ascertained from the evidence as the foundation of the decree, but to leave them to be inferred from the recorded testimony. Viewing the case in this manner, and applying the same principle, what must be the result? The court (and so is the distinct language ■of the statute) can review only errors of law, in a case like the present. They can not, they have not the power to review matters of fact, or to reverse the decree, because they have erred in finding a particular fact from the evidence. They are confined to the law arising upon the evidence. They must, therefore, look into the depositions in the same manner that they would in any other case, if called upon to decide the law arising upon evidence; in other words, precisely as on a demurrer to evidence at law. The complainants say, that on this evidence there could not by law be a decree against them. This is strictly a demurrer to evidence, and the rules in that case are clearly applicable.
    “A demurrer to evidence must admit the truth of all facts which the jury might find in favor of the other party, upon the evidence laid before them.” 1 Phil. Ev. 216.
    And this extends to every inference which the jury might fairly have drawn from the evidence. To every presumption which, on a reasonable construction, could arise from it. 4 Cran. 219; 1 Johns. 241; 5 Id. 29; 3 Bin. 457; 2 Wash. 203.
    So, in the case now before the court, in deciding whether a decree, not erroneous in law, could be made upon the evidence, every fact fairly inferable from the evidence must be admitted. There is no other possible manner of considering the case without reviewing as well questions of fact as questions of law.
    If, therefore, there was any fact at issue, the existence of which would warrant a decree for the defendants, and the existence of that fact can by any reasonable inference be deduced from the evidence, the decree will not be reversed. In every case of contradictory evidence, the fact, of course, must be presumed in favor of the decree.
    *There are two facts (to say nothing of the others) strongly supported by the testimony, either of which, being found for the defendants, the decree must have been in their favor :
    1. That J. C. Symmes, when he sold the fraction to Denman, reserved a lot to be located at his election.
    2. That Ludlow subsequently relinquished to Symmes the lot in question.
    At that period, there being no statute of frauds in the state, a parol contract relating to lands was valid, and gave Symmes a clear equity paramount to Ludlow, the very agent with whom the agreement was made; and it appears from the phraseology of the decree, that it was rendered upon this point, as it declares the equity to be with the defendants.

      There are various principles of law which support the doctrine' stated above.
    Every presumption is in favor of the correctness of judicial decisions. It is always- presumed that they are correct, unless the contrary appears. The error must be manifest, or there is no error. On this principle solely, rests the verity attached to all judgments and decrees. The evidence to justify them is always presumed unless the contrary appears.
    The special provision by statute, as well as by practice, for a rehearing, precludes the idea of re-examination of fact on a bill of review. A rehearing is understood by every lawyer to embrace fact as well as law ; but it is specially confined to a short period of time and certain rules: what propriety in such rules and restrictions, if a review answers the same purpose ? And if facts can be re-examined on review, no possible distinction can be pointed out between the two proceedings.
    The rule for which I contend is in harmony with all other judicial proceedings; at law, facts once settled are never disturbed; the judgments of law being once passed upon them, there is no possible mode of again canvassing them while the judgment remains. Chancery practice evidently rests upon the same principles and distinctions. Here is the rehearing in place of the new trial at law;. and the bill of review in place of the writ of error. The practice is ^founded in both upon great principles of public policy. Interest revpublicce ut sit finis litium. And surely there would be no end to litigation if the court could be required, after ten or twenty years, to canvass over again a volume of testimony, and decide whether they now receive the same impressions from it, as they did ■on the first investigation.
    Stoker, for complainants:
    The point taken, that the errors in law, on which the prayer fora review is predicated, must appear on the decree, and can not be asserted of any fact proved in the cause, we admit to be the settled doctrine of the books. But this admission, however, is accompanied with our views of what a decree in chancery must contain, under the practice in England, as well as what the statute of this state, in force when the suit was determined, required to be inserted in the record.
    Wo contend that a final decree, under the English practice, must-contain a full statement of all the facts on which the chancellor's decision is founded. The manner in which proof is made of these facts need not specially appear; but it is essential that satisfactory evidence of their existence should be embodied in the decree. If the mere opinion of the chancellor, on the merits of the cause, is the only part of the case on which error could have been assigned, all examination of the complainant’s bill, and of course his right to sustain it, would have been excluded; and it would seem that the technical rule contended for by the defendant’s counsel in the present case would produce that gross absurdity, that a court of equity may entertain jurisdiction in any case, no matter how palpably unjust, and no subsequent investigation can be had, provided the decree contains any grounds that would seem to warrant the interference of the chancellor. The history of a bill in chancery, from its inception to the enrollment of the final decree, will, it is believed, furnish no argument against the position we have assumed. In fact, the extreme caution that is exercised in obtaining all the light that can be shed on the cause, by a reference to a master, and issues directed to be tried at law, to say nothing of the opportunities afforded to object to the ^master’s report, as well as to move ' for a new trial, while it affords strong reasons against the propriety as well as the policy of re-examining the facts on which a decision has been made, it nevertheless would seem to require that every material fact proved should be contained in the decree. The rules on this subject are very fairly detailed in Hinde’s Ch. Practice, 429, and 1 Harrison’s Ch. 418. These two writers have treated the matter more perspicuously than any modern author. If the point contended for is correct, let us examine for what errors in the decree a bill of review may be sustained.
    In 1 Hai’rison’s Chancery, 452, 453, it is said, “ and yet if the chancellor errs in his conscience, upon a matter of fact proved before him, there may be a review of this matter, because there needs be no new examination, but this may be reviewed on the old depositions, which is usual.” To this point, 1 Roll. Abr. and Chancery Cases, 45, are cited.
    Before, the strict rule, which now obtains in England, that the decree must present a history of the'case, with the facts proved to warrant the chancellor’s decision, it sometimes happened that decrees were very loosely drawn, and many material points of evidence omitted. The question, as might have been expected, arose how far the unsuccessful party was precluded from a resort to his remedy, by review, by such decrees, and the same argument was then urged, that we would now press upon the counsel opposed to us, “ that if such decrees, which merely contained the determination of the court, without any reference to the facts of the case, should bo conclusive, the bill of review could never be brought.” The lord keeper, in Brand v. Brand, 1 Vern. 213, after the point we have alluded to had been discussed, decided, “ that he would not allow that way of drawing up decrees, in general, but that the facts that were proved, and allowed by the court, as proved, should be particularly so mentioned in the decree; otherwise, if a bill of review was brought, these facts should not be taken as proved. For else, a decree could never be reversed, by a bill of review, but all erroneous decrees must be reversed by an appeal to the House of Lords. And the.same ^decision, to its fullest extent, is to be found in Benham v. Newcomb, 1 Vern. 216.
    The authorities cited by the defendants prove no moro than we are willing to admit, when if appears the decree has been properly drawn up and enrolled. ¥e insist, however, that the remedy sought by the present complainants is a statutory one, and must be governed altogether by the rules prescribed in the act regulating our chancery practice. The policy of our legislature, let it be mistaken or not, appears to have been to dispense altogether with the long and tedious recitals usually found in a decree in chancery, and to substitute the whole record that was before the court. The law of 1810 was in force when the case sought to be reviewed was decided, and in the thirty-third section it is made the duty of the court, “ to cause the facts on which they found their sentence, or decree, fully to appear upon the records, either from the pleading and decree itself, or from a state of the case agreed by the parties or counsel, and where the parties or their counsel can not agree on the facts, then the court may either cause the examination of the witnesses to be reduced to writing by some person named by the court, which being .read to, approved of, and signed by the examinant, shall be entered on •record, and made use of on the trial of the cause, either at that time, or at any future hearing of the same.” In section 39 the clerk of the court is required “ to enter together in order, the petition, answer, pleadings, reports, decretal orders, statements of facts found by the jury, or agreed by the parties, and decree in such cause, in a booh to be kept for that purpose, which shall be signed by the court at the next

      term, as of the day on which such decree was pronounced; but such ■decree shall not contain any recital of the petition, answer, or other pleadings.” And in Beetion 63, it is expressly provided that a bill •of review may be brought “ upon errors of law, appearing in the body of the decree, or proceedings themselves.”

    It is believed, then, that an answer is furnished to the defendants’ objections on this part of the case. We claim nothing more under this bill, than we should ask, if we were arguing a writ of error in a court of law. We look alone to the record; we have assigned all our errors upon the record. We, therefore, conclude that whatever is *found there is open for examination. It is .said that the evidence, in a court of law, is no part of the case, ■when application is made to reverse the judgment, unless it appears in a bill of exceptions. True, but if the law required the note or other contract to be recorded, it is presumed it is as fair a subject for future investigation, before the proper tribunal, as the declaration, or plea. Before the statute of 1824, the writ was no part of the record at law; and no matter how informal it might be, unless the defendant moved to quash it, at the appearance term, or to set the subsequent proceedings aside before judgment, for irregularity, he was forever precluded ; under the present law, it is presumed, no one will doubt the right to predicate error on a substantial defect in the mesne process, and certainly not on a .special verdict, however solemn may have been the adjudication of the court, on the law arising from the facts found by the jury.
    In the present case, it will be recollected, no facts were found to be proved by the court, and the only grounds they could have had for making the decree are contained in the bill, answer, exhibits, and depositions. If fhese are disregarded, the arbitrary ■decision of the chancellor, unsupported by evidence, can at any time conclude the parties litigant. The complainants have a right, with certain limitations as to time, to claim a review of the decree sought to be reversed. If successful in their application, they must be restored to the same legal privileges which attached to them before the decree was made. Hence we infer, in addition to the positive provisions of the statute, a necessity that the circumstances on which that decree was founded should again be open ■for thorough examination.
    Judge Burnet, having been original counsel for the complain.ants, did not sit in this cause.
   By the Court :

In bills of review, the practice of this court has been to examine the whole case, and decide as if the matter was open before them in the same situation as it was when the decree was pronounced. When the facts proved and ^principles decided are not inserted in the decree, a bill of review, for error in law, would be useless if this course was not pursued. It is attended with some inconveniences, but greater mischief would probably result were we to decline reviewing any decree where, from the nature of the case, a brief general decree would, on its face, be free from, error. In the case now before us, however, we may bo satisfied that the decree of dismissal is unsupported by any possible deduction from the facts in proof. The complainants would be without remedy if we were confined to the examination of the decree alone. Whether it be erroneous or not must depend upon facts on which it was predicated. As they are not recited, we can only find them by an examination of the proofs.

This mode of proceeding has not heretofore been controverted. The general adoption and acquiescence in the practice, both by the bar and the court, evinces a general sentiment as to its correctness and utility.

The difference between our practice in drawing up and entering decrees and the practice in England and New York sufficiently accounts for the departure, amongst us, from what is elsewhere an established rule of proceeding. On this point the demurrer must be overruled. It must also be overruled generally. But, as the cause may again come before us, we do not express the grounds upon which we go on the second point.

The court pronounced a decree reversing the original decree of dismissal, and made an order that the bill of review be retained as a supplemental bill, and stand for plea or answer, and that the cause be proceeded in as upon original and supplemental bills.f

      HoTE by the Editor. — The same principle contained in this case is found in vii. 184, part 1; xv. 313; xvi. 145. The English and American practice is, that in the former the decree contains a statement of the facts upon which it is based, in the latter it usually does not, but the bill, answer, other pleadings, and decree are made part of the record, and in both countries the record must show the error complained of; and in Ohio, when the facts are found in a decree, they will not be reviewed, and the English practice will he adhered io, xv. 313; xvi. 412. Eor Ohio decisions touching reviews generally, see the Above cases, and vii. 125, part 2; viii. 377; xii. 351; xiv. 122; xvii. 27; xviii. 146. For Ohio statutes now in force touching bills of review, see Swan’s >Stat. 714, 717; xlvi. 90.


author: Judge Burnet :

text:
    *M. Tiernan v. Beam and others.
    As between vendor and vendee, the vendor has a lien upon the lands sold, foi the purchase money, although personal security be given for the payment. Lien of the vendor of lands for purchase money passes to the devisee of the debt due upon account of such purchase, where the legal title remained in the vendor.
    In an entire contract for the sale of five quarter sections of land, a separate bond given for the conveyance of two, purchaser can not have specific performance without performing on his part the entire contract. ■Conveyance made by executors under a defective order of court can not be aided in equity.
    This cause was reserved for decision here by the Supreme Court -.sitting in Richland county. It was argued by
    J. C. Wright, for complainant.
    Wm. Stanburt, for respondents.
    The case is fully stated, and the arguments of counsel noticed in the opinion of the court by Judge Burnet. It is, therefore, deemed unnecessary to swell the report by inserting more than .that opinion.
   'Opinion of the court, by

Judge Burnet :

There is some contradiction in the testimony, and some inconsistency in the statements of a part of the witnesses, but the leading facts on which the case must depend are sufficiently ascertained. The bill, answers, and exhibits show that in 1811 Newman sold to the defendant, Beam, five quarter sections of land, containing eight hundred acres, at four dollars and fifty cent's per acre, amounting to four thousand four hundred dollars. For two of these quarter sections Newman had obtained a patent. The remaining three •had not been paid for, in full, to the government, and consequently were held by certificates of purchase. Beam, was to complete the payments, and, to enable him to do so, the certificates were assigned-The legal title of the two quarters remained in Newman, who gave a title bond in the penal sum of seven hundred and fifty dollars, with a condition to convey them on the payment of that sum. One thousand two hundred dollars of the purchase money was paid in hand — notes, or sealed bills, with the defendant Hedges as security, were given for the residue, payable by installments. Newman, the vendor, died in 1813, having devised the notes to his widow, one of the defendants in this suit. Payments were made by Beam to Newman in his life, and to his widow since his death, by which the debt has been reduced to one thousand one hundred and *sixty-seven dollars and seventy-six cents. After the death of Newman his executors obtained a general order of court to execute deeds. The order is admitted by both parties to have been illegal and void. The executors, however, executed a deed to Beam for the two quarter sections in question, on the supposed validity of that order. The complainant obtained a judgment against Beam in August, 1817, in Belmont county, on which there is a balance of one thousand two hundred dollars due. Execution on this judgment was sent to Bichland county and levied on the two quarter sections not conveyed, there being, as it is alleged, no other property on which the money can be made. The object of the bill is to subject the two quarter sections to sale for the satisfaction of the complainant’s judgment. The principal matter in dispute is whether the court will require, the defendants, or those holding the legal title, to part with it for the benefit of the complainant before the residue of the purchase money is paid.

The principal points discussed by the counsel are the following:

1. Had the vendor a lien on the land'for the purchase money?

2. If he had such a lien, has it been lost or relinquished by the subsequent conduct of the parties ?

3. Bid the payment of the sum of seven hundred and fifty dollars, named in the bond, entitle the purchaser to a deed for the two quarter sections before the whole of the purchase money due on the contract was paid ?

4. Will the court give effect to the deed made to Beam by the executors of Newman, agreeably to the prayer of the bill ?

On the first point, the authorities clearly show that a vendor has-a lien on the premises sold for the purchase money, and that his lien is not affected by conveying the premises and taking a note or bond, with personal security, for the money. It exists in every case of a sale where the money is not paid, unless it be otherwise agreed to by the parties, either expressly or by such arrangements as clearly show their intention, and it is incumbent on the party contesting the lien to show that it has been relinquished. *9 Ves. 209; Turner v. Bayne, 1 Johns. Ch. 308; 2 Ves. 622; 3 Eq. Cas. Ab. 682; [n] 1 Vern. 267; 3 Atk. 272; 6 Ves. 752; 3 Bibb, 183; 2 Wash. 142; 1 Brow. Ch. 301. In Pennsylvania and in South Carolina the right of the vendor to his equitable lien seems not to have been recognized, but it has been admitted and enforced in most of the state courts, and in this court, as oiten as the question has been presented. Jackson v. Hallock, 1 Ohio, 318. As between vendor and vendee the rule is not questioned by the counsel on either side. But on the part of the complainant it is strenuously contended that it does not exist in favor of these defendants, and a variety of circumstances have been referred to for the purpose of taking the case out of the rule. As, for example, the vendor took obligations with personal security for the purchase money, and that those obligations were payable by yearly installments. The first part of this objection has been disposed of already, and it is not easy to discover why the fact that the money was payable by installments should change the rights of the parties. That circumstance can not affect the contract, or the consequences resulting from it. As to everything connected with this question, it is immaterial whether the money be payable in a gross sum, or by installments, on different days. It was also urged that because the legal title was retained by the vendor for for a time and afterward conveyed, with the assent of the devisee, we must draw the conclusion that the parties did not intend to have a lien reserved. To rebut the inference drawn from this circumstance, it is only necessary to state that the retaining of the title by Newman till the time of his death evidences a determination on his part to hold the land as his security; and that as the executors were not privy to the contract, and were ignorant of the intention and understanding of the parties at the time it was made, their attempt to convey the land after the death of Newman can not have any bearing on the question; we can not draw from it an inference inconsistent with the manifest design of the vendor. But this question does not rest on this inference alone. The testimony of Pearce proves that it was a part of the contract that Newman ^should hold the land as security for the money. Such proof, however, was not necessary on the part of the defendants. The existence of the lien must be presumed until the contrary appears. It rests with the complainant to show that ■the vendor did not rely on it.

The second inquiry is, has the lien been lost by anything that has taken place since the contract was made. The complainant contends that if the lien did exist in the life of Newman it ceased at his death, and that the devisee can not claim it, because by the devise the debt has been separated from the land.

The case of Jackman v. Hallock, 1 Ohio, 318, has been cited to sustain this position. That was a claim set up by the assignee of a note in the life of the vendor. It was a transaction between the living. A majority of the court were of opinion that the lien did not pass by the assignment. But the circumstances of the two cases are materially different, and the decision in that case does not necessarily conclude this. The force of the argument nsed on that occasion seems to be that the vendor may separate the equitable lien from the legal right, that he may assign the latter, but can not pass the former, because it is given for his own exclusive benefit. Adopting this reasoning as conclusive, it admits that while he retains the legal right, the equity will attach to it, and, upon that principle, if he retain them united till his death, they must both descend to his heir, or pass to his devisee, because the act of God shall not injure'any man. The death of a vendor can not impair his rights. They must pass to his representatives in the condition in which they were at his death. If the debt, in the hands of Newman, during his life, was an equitable lien on the land, it must continue so in the hands of the heir or devisee, for at his death all his legal and equitable rights pass, by operation of law, in the same state in which he held them. No good reason can be assigned why any of them should be forfeited by an act of Providence not under his control. The duration of an estate may be limited by the term of the grant to the life of the grantee. But such a limitation was not contemplated by the parties in this case. The rights mutually acquired were intended to survive.. *There was nothing in the nature or terms of the agreement inconsistent with such an incident, and I do not see by what rule of construction a limitation can be applied to the •equitable that does not equally affect the legal right. The security for the debt should be as permanent as the debt itself. They ought to exist and expire together. The object cf the one was to insure the enjoyment of the other, and if either is to be forfeited by the death of a party, I am at a loss to determine which it should be. The lien of a vendor is not founded on arbitrary principles that require a rigid construction. It is not of such a nature as should induce a court to lay violent hands on it whenever a plausible pretext can be found for doing so. It is founded on principles of justice, and ought, therefore, to be protected. It originated in the care which the law has for the preservation of equitable rights. It was intended to prevent one man from enjoying the property of another without consideration, and it therefore applies as well to the representative of a deceased vendor as to the vendor himself. It is in the nature of a mortgage, provided by the benignity of the law for those who may have been too confiding ; and, in my estimation, our legal system, would be imperfect without it. The great object of every code of laws is to prevent injustice, and the more effectually that end is accomplished the nearer does it approach to perfection. Justice certainly requires that real property, sold on contract, should be answerable for its price as far as is consistent with the safety of third persons. Hence legal mortgages have been resorted to, and the doctrine of equitable liens has been established; and as these securities are similar in their operation, and have originated from the same policy, they ought to be equally favored. In Martin v. Mowlen, and Green v. Hart, 2 Burr. 979; 1 Johns. 590, mortgages are treated as chattel interests, which may be discharged by parol, not being within the statute of frauds.

This would show that there is no essential difference between legal and equitable mortgages as to the solemnity required in their discharge. They both originate in contract, the one by express stipulation, the other by operation of law.

*From this view of the subject it seems to be a just conelusion that the death of Newman did not extinguish his lien on the land in question, and that the right survived for the benefit of those to whom it legally belongs.

As the death of Newman, and the attempt to convey by his executors, are the only circumstances which have taken place since the contract was made, calculated, in the opinion of counsel, to destroy the lien, and as neither of these is sufficient for that purpose, the conclusion follows that if the lien ever existed it continues to-exist.

But before this point is dismissed I will notice some of the authorities cited by counsel as having a bearing on it.

Much importance is attached to Pollexfen v. Moore, 3 Atk. 272. The defendants rely on it to establish the lien, and the complainant quotes it to show that the lien expired at the death of the vendor. It has often been remarked that the report oí that case was very obscure, and the master of the rolls in Trimmer v. Bayne, 9 Ves. 210, affirms that Lord Hardwicke destroys his own dictum, that “ the equity will not extend to a third person,” by the decree which he makes in the same case. The object of the cross bill was to protect a legacy given out of the personal estate, either by requiring the complainant in the principal bill, who was a vendor, socking for his purchase money, to resort to his equitable lien or otherwise, if he were allowed to exhaust the personal estate to the prejudice of the legatee, that she might succeed to his equitable right; and in the face of his own dictum the chancellor marshaled the assets, so as to give her all the relief she was entitled to. He established the equitable lien, and confined the vendor to that fund, by which the personal estate was so far preserved for the legatees. In other words, he decided that the land, after it had descended to the heir of the purchaser, should be bound for the purchase money, for the benefit of a person not a party to the contract; and not only so, but that the vendor should resort to that lien, and exhaust the fund in the first instance. The object of the cross bill was thérefore gained, and the equitable lien enforced for the benefit and at the instance of a third person.

*So far as the principle really settled in that case has a bearing on the dictum of the chancellor, it appears to condemn it, and to favor the conclusion that it has been introduced by the carelessness or misapprehension of the reporter. It appears, however, to be the foundation of the doctrine now contended for, and to have led to all the controversy on the subject, which is found in the subsequent cases. But the object I had principally in view in turning to that case, was to distinguish it from the case before us, by showing that these defendants can not be treated as third persons in the sense in which the chancellor used the phrase. Mrs. Moore, whom Lord Hardwicke denominated a third person, waa not concerned in the sale, or purchase of the land; she had no interest, either original or derivative, in the purchase money. Her claim had no connection with the debt created by the .purchaser, or with the lien which the law created for its security. She was, in the literal sense of the words, as to that transaction, a third-person, a stranger, seeking to protect a legacy, that had no relation to the sale of the land, and in which the vendor never had an interest. Her prayer was, if the vendor did not avail himself of the lien, that the court would place her in his shoes, and transfer to her his equitable right. A simple statement of the case shows-that it is not analogous. Mrs. Newman, in this sense, is not a-third person, she can not be called a stranger to the transaction, she has succeeded to the rights of her husband, resulting from that-contract — she stands in the shoes of the vendor, and as the legal owner of the debt, claims the benefit of the security attached to it. She is the only party in interest. The lien cannot operate in favor of any other person ; she does not attempt to meddle with the rights of others, and can not therefore be denominated a third person.

The case ought not to be carried further than its terms necessarily require. Subsequent cases should not be brought within its influence by remote analogy. Mortgages are considered as inseparable from the debts to which they relate. They follow them as the shadow follows the substance, so that any act amounting to a legal transfer of the debt will carry with it the mortgage. In Martin v. Mowlen, *2 Burr. 973, Lord Mansfield states it as a settled rule that a mortgage, being a charge on the land, whatever will give the money will convey the estate in the land along with it, to every purpose. If the debt be assigned, devised; or discharged, without naming the mortgage, the mortgage will share the fate of the debt. The right in it passes by operation of law, rather than by the act of the party. Green v. Hart, 1 Johns. 580, adopts the same principle. The dictum of Lord Hardwicke, as it is expounded by the complainant, would be inconsistent with the doctrine maintained in these and other cases of similar import. But it appears to me that it can not be applied to a person who-has required an interest in the debt, and with that limitation, it has no unfavorable bearing on the claim of the defendant, nor does-it conflict with the cases just cited.

It must be recollected, however, that the matter directly in contest between these parties, is the two quarter sections not conveyed by Newman in his life. The three quarters which wero conveyed, have been disposed of. As to these quarters the defendants certainly stand on higher ground. They have the legal title, against which the complainant is setting up an equity, and the question is, whether the court will deprive them of that title, and if they will, upon what terms. In deciding this question, it is necessary to consider on what ground the complainant stands. He had no concern in the contract, and as a party, he has no interest in it. He is pursuing the rights of Beam, in the character of a creditor, and any circumstances of hardship, in his own case, are not to be considered here. He stands in the shoes of Beam, and the case must be decided as though Beam were the complainant, praying for a specific execution of his contract. Yiewed in this light the complainant must do equity before he can expect to receive it.

Whatever might have been the understanding of the parties, we find the defendants with the law on their side, and with an equity at least as strong as that of the complainant. The purchaser is insolvent, and the defendants must lose the purchase money if they are compelled to give up the title, which is the only plank on which their hopes can rest. I do *not know on what principle Beam can extort it from them, before he has complied with his part of the contract. It certainly was not the intention, or expectation of those concerned, that he should have the land without paying for it. If the title had remained in the vendor by mere accident, I could not hesitate to say that equity ought not to take it from him till the contract is fulfilled. But in this case there is both positive and presumptive evidence that Newman relied on the title and retained it as his security.

The third inquiry is, did the payment of seven hundred and fifty dollars, the sum named in the title bond, entitle the purchaser to a deed for the two quarters, before the whole of the purchase money due on the contract was paid? The counsel for the complainant have treated the case as though there were two contracts, one relating to the three quarters conveyed, and the other to the two quarters not conveyed, and on that ground they ■claim a right to the two quarters, because they allege the .purchase money for them has been paid in full. But they have certainly taken an incorrect view of the subject, for in the first place there is not anything that indicates two contracts, and in the second place, the most rational conclusion, as to the payment is, that they were not made with reference to one portion oí the land, more than another.

The defendants allege, positively, in their answers, that the five quarter sections were sold in a body, at the average price of five dollars and fifty cents per acre, amounting to four thousand four hundred dollars. Henry Bell, Michael Newman, and Michael Beam, Jr., testify to the same fact. They prove that the land was sold in a lump, at an average price, and by a single contract. The testimony of Pearce amounts to the same thing. He heard the parties speak of the transactions as one contract, and understood from them that the land was bound. In addition to this, the nature of the transaction and the circumstances attending it, show clearly that there were not two contracts. There was a great difference in the value of the quarters, both as to quality of soil and improvements. Some-of them were entirely unimproved, a part of them were improved to a considerable extent, and yet they were sold at an average price. This could not have been the case, if they had been purchased ^separately. The sum of twelve hundred dollars paid in hand was deducted from the amount of the five quarters, and notes with security were given for the residue, without distinguishing for what particular portions of the land they were given, and all the quarters were purchased at one and the same time. From these circumstances, independent of the testimony, the inference is irresistible, that the five quarters were purchased by one and the same contract. The execution of the title bond is no evidence of two contracts. It was the natural consequence of the difference in the situation of the title. As there was money due to the United States on three of the tracts, which was to be paid by the purchaser, it was necessary to assign him the certificates for those tracts, to enable him to ■ complete the payment, and as the vendor was to retain the title of the two, for which patents had been obtained, it was natural to give a title bond, and as it was the understanding of the parties that all the land was to be bound for the purchase money, and as obligations had been given for the whole amount, the sum named in the title bond was most probably accidental. There is no rule of calculation suggested by the case, from which it can be ascer- - tained that seven hundred and fifty dollars was due on the two quarters. At the average price, they amounted to seventeen hundred and sixty'dollars. If the whole payment of twelve hundred dollars, be deducted from them, the sum due would be five hundred and sixty. If a proportionate part be deducted, the sum due would be twelve hundred and eighty dollars.

The admission so much relied on, that seven hundred and fifty • dollars had been paid, amounts to nothing, for it appears from the testimony of Mr. Parker, that at the time those declarations were made, the payments amounted to more than three times that sum, as the original debt had been reduced to eleven hundred aud sixty-seven dollars. But there is not the slightest reason to suppose that .any part of this money was paid with special reference to these quarters. Counsel have labored to give the case that aspect, but without success. The facts do not sustain it.

The fourth and last inquiry is, will the court give effect to the deed executed by the executors?

^Chancery may aid a deed, rendered inoperative by accident, or mistake, when the grantor had power to convey, and intended •to do so, but it can not generally supply a want of power. It can not give effect to deeds executed by persons who have neither title, nor authority to convey, from those who have the title. The deed from the executors of Newman to Beam was unauthorized and illegal. Its operation was not prevented by a defect in the form, or in the execution of it, but by a total want of power to convey, which no court of equity can supply. A decree may remedy a mistake in a conveyance by a person having power to convey, but it can not create a power. The former is often done, when the rights of third persons are not affected, or when equity would, in -the first instance, have decreed a conveyance. But in this case the executors attempted to convey without authority, and if their deed had taken effect, it would have been injurious to third persons. The statute has pointed out the only method by which executors or administrators can obtain power to sell real estate, orto execute jeontraets for the sale of it, made by their testators, or intestates, jit is necessary to pursue that course, in order to obtain the power, and an attempt to convey, before they have done so, must be wholly inoperative. The power must be obtained from the common pleas, and it would not be more irregular, for this court to .grant the power in the first instance, than to remedy a want of it after a fruitless attempt had been made to execute it, and besides, when application is made to the common pleas, for an order to execute a contract, it is their duty to see that the contract has been fairly made, and fully complied with on the part of the purchaser, and if they should unadvisedly, order a conveyance, while any portion of the purchase money was due and unpaid, it would be contrary to the statute, and such a fraud on the heirs or devisees as would justify the interference of this court for their protection. There are two circumstances, then, which prevent us from giving effect to the deed made by the executors of Newman : .

1. They made it without having obtained a power for that purpose from the court of common pleas.

*2. As the contract had not been fully complied' with on the part of Beam, the common pleas were not authorized to grant the power, and if they had made an order for that purpose, it might have been avoided as a fraud, on those who were interested in the contract; so that the question resolves itself into this, will chancery give effect to a deed made without authority, and under such circumstances as would authorize them, if an authority had been granted, to lay their hands on it as a fraud on third persons ?

The complainant seems to rely much on the alleged equity of his case. But if he has an equity it can not aid him, because the defendants have an older and a stronger equity. It does not appear when the debt to Tiernan was contracted, nor is it material to know. His judgment was rendered in 1817. The lien of the defendants has existed since 1811. The equity of the complainant extends only to that portion of interest that would remain in Beam, after all prior equities are satisfied. On this principle he is to be postponed to the defendants who hold an older equity. The defendants have also the strongest equity. Newman was the proprietor of the whole property. He was not bound to sell it ; and after he had contracted to sell, he was not bound to convey, till the consideration money was paid. Beam had no right to appropriate it to his own use, or to the use of his creditors, further than he had made it his own by paying the purchase money. Were we now to appropriate the proceeds of this land to the satisfaction of the judgment, we should virtually decree the estate of Newman to pay the debts of Beam, without a previous liability, and without a consideration; but, on the other hand, if the complainant receives what the land is worth, more than the residue of the purchase money due on the contract he ■will obtain all the right, of his debtor, beyond which he has no equitable claim. The complainant’s counsel, to strengthen himself on this point, urged very earnestly that Beam had treated the land as his own — that it was reputed to be his — that it gave him credit — and that the world was thereby deceived.

In a contest about personal property, as to which possession is prima facie evidence of right, such facts as these are entitled to weight and are sometimes decisive of the matter in controversy, *but the occupancy of land is not considered as an evidence of title. No prudent man would rely on such circumstances, but would rather resort to the records, where the truth may be ascertained, and if he omit this precaution the consequences are chargeable to himself. But the argument drawn from this source is . wholly gratuitous, because there is no evidence to show that Tier-nan knew of such facts, or relied on them, when he gave ci'edit to Beam. If the legal title had been conveyed to Beam, and the defendants were resting entirely on their equitable lien, there might be some plausibility in recurring to these circumstances; but the fact is not so, the legal title has not been conveyed, the defendants were not bound to vigilance, they had the same right to rely on their title, as a legal mortgagee has, and the same right to reply to-the complainant, caveat emptor. It is readily admitted that facts of this description sustain the exception to the general rule made-in favor of subsequent purchasers, for a valuable consideration, without notice, as to whom the equitable lien can not be enforced. It was also urged that Hedges considered the deed from the executors as valid, and supposed that he had no right to rely on the-land as a fund to pay the purchase money for which be was bound to-Newman. This maybe so, but his ignorance does not forfeit his rights.

On the -whole, we are satisfied that the sum due to the estate of Newman must first be paid out of the proceeds of the sale, and the residue paid over to the complainaht.

      Noin by the Editor. — This case, so far as relates to the transferable character of the vendor’s lien, is re-affirmed, v. 35. As to the same point, see also xiv. 20. Talcing personal or real security, as between vendor and vendee, does discharge the vendor’s lien, xiv. 428. But so far as this last case decides that talcing real security discharges the vendor’s lien, it is reversed by the decision in xvii. 500, where the opposite doctrine is held. It (xiv. 428) also overrules^ as would seem, the law of the case to which this note is appended, so far as relates to the effect of taking personal security on the lien of the vendor. The ease in xvii. 500, has, in the argument of counsel, and the majority and dissenting opinions, an elaborate exposition of our own and other decisions on this point. It is there decided that taking mortgage by vendor does not defacto extinguish his equitable lien for purchase money. Other decisions relating to vendor’s liens, see vii. 21, part 1. As to correction of administrator’s conveyances in equity, see also iv. 469; xiii. 368.
      As to specific performance, see Townsend v. Alexander, ii. 18, and note.


author: Judge Hitchcock.

text:
    Michael Patton v. Sheriff of Pickaway County.
    Under the judgment and execution law of 1824, levy made within a year from the date of judgment, and set aside after the expiration of the year, lien lost as against subsequent judgment creditor, whose levy is made within the year and continued until sale.
    When a levy is set aside, parties stand in the same situation as if no levy had ever been made.
    This was an amicable action, brought to decide the right of the plaintiff to certain moneys made upon execution. It came before the court, upon a case agreed, and was adjourned from the county of Pickaway.
    The plaintiff, Patton, obtained two judgments against Bentley— one in July, 1820, and one in April, 1821. Upon both these judgments executions were sued out, in June, 1821, and on the 28th of that month, levied, on the real estate of ^Bentley. In July, 1822, the appraisement and the levy were set aside. On January 23, 1823, writs of fi. fa. were again sued out, and on February 22,1823, were levied on the same property first levied upon, and on one additional lot. Alias process was sued out from term to term until January, 1826, when a sale was made.
    AtApril term, 1821, J. Allen obtained a judgment against Bentley. In June, 1821, he sued a fi. fa., which was levied on the same lots, July 21,1821, and the process was regularly continued until the sale was effected in January, 1826.
    There were other subsequent judgments, previous to January,. 1823, upon which executions issued and levies were made. But as the two cases stated embrace the point decided in the opinion, it is unnecessary to state them.

      Patton’s first judgment secured the first lien. His second judgment was of the same term with that of Allen. None of the executions were sued out within ten days. Patton’s were first sued out, and put in the hands of the sheriff. His levy was set aside in July, 1822. The levy of Allen was continued, and the question to be decided was, whether Patton lost his preference by setting aside his levy.
    The reporter was furnished with no argument on either side.
   Opinion of the court, by

Judge Hitchcock.

In the present case, the court are called upon to give a further construction to the judgment and execution law of 1824. In the case of McCormick v. Alexander, ante, 65, delivered at the last term, it was determined that, under that law, judgment creditors, who had not sued out and levied execution within one year from the date of the judgment, lose their lien and preference, as against subsequent judgment creditors, who had sued out and levied execution within the year; and this as well in cases of judgment before the enactment of the law as after it.

It has been suggested that such construction might be given to the fourth section of that act as would induce the *court to doubt the correctness of this decision. That section of the law was carefully examined before that case was decided; it has been since, with equal care, re-examined, and we discover nothing in it which can, in the least, tend to change the opinion then expressed. Although a court may, and undoubtedly sometimes do, in the examination of a statute, find some things which are not consistent with their ideas of policy or of justice, yet it would be highly improper to distort the language, or the evident meaning, in such manner as to give the statute a construction consistent with their own feelings, when such construction would manifestly defeat the intention of the legislature. The judgment and execution law of 1824 contains a system which is as well adapted, perhaps, for the State of Ohio, as any other which could be formed on the same subject. So far as it respects judgments, which shall be subsequently rendered, no one, it is believed, can, with propriety complain. If there is any complaint, it must be on the ground, that the statute extends to judgments which wore rendered before its enactment. If this be an evil, it will soon be past. And to give a construction to any part of the statute which would destroy the harmony of the whole, in order to remedy this particular evil, would be followed by consequences, the injurious effects of which can not be easily foreseen.

Section 4 above referred to, provides, “ that when two or more writs of execution, against the same debtor, shall be sued out during the term in which judgment is rendered, or within ten days thereafter; and when two or more writs of execution against the-same debtor shall be delivered to the officer on the same day, no preference shall be given to either of such writs, but if a sufficient sum of money -is not made to satisfy all executions, the amount made shall be distributed to the several creditors, in proportion to the amount of their respective demands; in all other cases, the writ of execution first delivered to the officer shall be first satisfied; and it shall be the duty of the officer to indorse on every writ of execution the time when he received >the same.” Provisions, similar in substance, have been contained in every law on the same subject for many years. '

*In order to give a proper construction to this section, we must, as in every other case, look through the whole statute, and, if possible, so construe it, that the whole may have effect, and that one part shall not defeat another. We must bear in mind, that the legislature in acting upon this subject are not legislating for a particular case. They are determining the rights of different judgment creditors, and also the rights of the judgment creditor and debtor. It is for these persons they are legislating, and as to others, they go no further than an attempt to provide, that in the contest between these their rights shall not be violated. Neither is the legislation confined-to any particular species of property. Property in possession, whethér real or personal, is taken into view.

By section 1 of the act it is enacted, “that lands, tenements, goods, and chattels shall be subject to the payment of debts, and shall be liable to be taker), in execution,” etc. Section 2 provides, “ that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered,” etc. It is this section which gives the creditor a lien upon the lands of the debtor, in consequence of the recovery of judgment, but it extends only to the lands situated in the county where the judgment is rendered. Por the same section provides that where the lands are situate in a different county, such lands, as well as the goods and chattels of the debtor, shall be bound from the time they are seized in execution.

The lien which is thus created, is by subsequent provisions of the-statute regulated as to other bona'fide judgment creditors; as to all the rest of the world it appears to be perpetual.- By section 9 provision is made that if an execution be levied upon the lands of the debtor, and it shall appea,r by the inquisition required by the statute, that the lands thus levied upon, at two-thirds their appraised value, are sufficient to satisfy the execution with all costs, the judgment upon which such execution issued “ shall not operate as a lien upon the residue of the debtor's estate to the prejudice of any other bona fide judgment creditor. Section 17 determines the character, or continuance of this lien. ^Without repeating this section, it is sufficient to say, that by its provisions the lien is to continue one year, and fora greater length of time provided an execution be sued out and levied within that period. But if an execution is not levied within the year, the judgment shall not operate as a lien to the prejudice of “ any other bona fide judgment creditor."

Taking these parts of the statute together, it is apparent that a judgment operates as a lien upon the lands and tenements of the debtoi’, and that this lien is secured to the creditor for the term of one year. Within that time no individual can deprive him of it.. But if not enforced within that period, it is inoperative so far as respects a mere diligent creditor.

If, in giving a construction to section 4 of the statute, we were to pay no attention to the priority of judgments, upon which executions were issued; if we were not to regard the description of property upon which such executions were levied, but were to determine that unless the executions were issued within ten days after the term in which judgment was rendered, or unless the executions were delivered to the officer on the same day, the one first delivered should be first satisfied, all that is said in the statute upon the subject of judgments, operating as liens upon the lands and .tenements of the debtor, would be rendered nugatory. Lands and tenementSj as well as goods and chattels, as to any beneficial effect, would be-only bound from the time they were seized in execution. Such could not have been the intention of the legislature.

What construction, then, can this section receive, which will give it full effect, and, at the same time, not interfere with the other parts of the law. It appears to me that the intention of the legislature is easily ascertained. In this section, they intended to provide for cases where there were two or more judgment creditors,. having equal rights, and where there is no priority of lien, as when the judgments are recovered in the same term; for cases where the judgment does not operate as a lien, but the property is bound only -from the time when seized in execution, as goods and chattels, or lands not situate in the county where the ^judgment is recovered ; for cases where the creditor, in consequence of not having •an execution levied within one year from the date of his judgment, has lost the benefit of his lien so far that it “ shall not operate to the prejudice of any other bona fide judgment creditors." If this section is •construed to extend to these different classes of cases, it will be found to be beneficial; if extended further, it will defeat some of the essential provisions of the statute.

The case before the court differs only in one particular from the case of McCormick v. Alexander. In that case no execution issued upon the judgment of Evans, one of the creditors, within twelve months from the date of his judgment. In this case, Patton caused execution to be issued and levied upon part of the property which was eventually sold, within twelve months from the first day of the term in which his judgment was recovered. At the July term of the court of common pleas, 1822, however, this levy and the appraisement made in pursuance of it, was, on motion of the plaintiff, .set aside.

It remains, then, to consider the effect of setting aside a levy. It would seem that upon this subject there could be but one opinion. If the levy is set aside, as to all subsequent proceedings, the course to be pursued must be the same as if no levy had been made. Before the property can be sold, it must be again seized in execution. Had theft, fa. been levied upon goods and chattels, so .soon as the levy was set aside, the goods and chattels must have been restored to the debtor. Patton, while he abided by his first levy, was safe, but having elected to pursue a different course, if that course operates to his injury, he must abide the consequences.

The first levy of an execution issued upon the plaintiff’s judgment, which can be noticed by the court, is the one which was made on February 22, 1823. This was more than one year after the date of the judgment. It follows, that according to the principle settled in the case of McCormick v. Alexander, he lost his lien so far, that the same could not operate to the prejudice of other bona fide judgment creditors, whose executions had been levied within twelve months after the date of their respective judgments. This being *the opinion of the court, and it appearing that the money made will not be more than sufficient to satisfy judgments which must be preferred to that of the plaintiff, according to the terms of the agreed state of facts, judgment must, in the present case,' be entered for the defendant.

      NoTE bx the Editob. — There will be found in x. Ohio, 74, a most admirable summary of the legislation and judicial decisions in Ohio, relating to thft law of liens [note “ a See also note to McCormick v. Alexander, ii. 65. The act of 1831, now in force, Swan’s Stat. 479, sec. 23, is a re-enactment of the statute of 1824, on which this decision is based. See also note “b,” on that page. -
      When mortgaged land is levied on, levy may be set aside and other lands taken, xi. 444; but not unnecessarily, ib.