author: Spalding. J.

text:
    *William Irwin’s Heirs v. Nicholas Longworth et al.
    A deed of conveyance of real estate is valid to pass the fee, even though in the granting part of the deed the grantor is also named as grantee, where the deed describes the grantor as the party “ of the first part,” and the grantee as the party of the second part, with an “ habendum” clause to the party of the second part. In such case, the fee passes to the party who is “ to have and to hold” the premises.
    A conveyance in such case is good where the grantee is described by sufficient terms to designate who is intended, though neither his Christian nor surname is used. “ That is certain which can be rendered certain.”
    Where there is no grantee named in the granting part of a deed, the party named in the “ habendum ” may take. "Where the grantor is named as grantee, it is a nullity; and the same rule applies as if no grantee were named in “ the premises.”
    Where a conveyance of real estate, not warranted "by law, is made in fee simple, “to delay creditors,” a surety of the grantor at whose instance the conveyance was so made, and who holds a declaration of trust, subsequently made for his benefit, can not set up that the deed was made to, defraud creditors, to prevent the grantor or his heirs from asserting an equity in the premises.
    Where a conveyance of real estate is made to a trustee to indemnify the surety of the grantor, and the surety, after paying the debt, takes a conveyance from the trustee in satisfaction of the debt, under an order from the heirs of the grantor, made for “the safety of the trustee,” and under an impression that they “ have no interest in the premises,” the equitable rights of the heirs are not thereby prejudiced.
    If the trustee in such case convey to the surety in satisfaction of the debt of the grantor, the surety, as to minor heirs of the grantor, takes the premises charged with the trust; and the original trustee will be responsible for a breach of the trust by his grantee.
    In such case, an order to the original trustee to convey to the surety executed by the heirs for the safety of the original trustee, is not a surrender of the equity of the heirs in the premises so conveyed, unless the order contain words which expressly or by inference surrender the equity.
    . If it is proved aliunde that the object of the order to convey was to invest the grantee of the original trustee with the perfect title relieved of all equities, such order can only be held effectual for that purpose when executed with a proper understanding and knowledge on the part of the heirs of their just rights.
    This rule applies, though there has been no actual fraud or imposition practiced on the heirs.
    Where a grantor conveys premises absolutely in fee to a third person, for the purpose of indemnifying his surety, with the assent of the surety, and the grantee executes a declaration of trust accordingly, the conveyance will, in equity, be deemed a mortgage, and the grantor and his heirs will have an equity of redemption in the premises, until it is regularly assigned» foreclosed, or barred by lapse of time.
    This is a bill in chancery, reserved in the county of Hamilton. The complainants in the original and amended bill are children and heirs at law of "William Irwin, who died in July, 1824.
    *He left, besides them, two other children : Archibald, who was his partner in business under the name of William Irwin & Son, and Louisa, then the wife of Lewis Whiteman, but now deceased, leaving three children—Harriet, William, and Louisa.

      Harriet has married ffm. P. Irwin, and they are complainants in a cross-bill. William and Louisa Whiteman are infants, and appear by their guardian ad litem.

    On August 13, 1821, William Irwin executed a deed to Thomas D. Carneal, conveying, in the ordinary form of an absolute warranty deed, sundry city lots in Cincinnati, and an undivided half of a tract of land near the city, called the “ Hill Tract,” the whole tract estimated to contain two hundred acres. The consideration named was $5,000, but no part of it was paid by Carneal, .or intended to be paid. Tho present controversy embraces only the undivided half of the hill tract

    On January 21, 1839, Thomas D. Carneal, by quitclaim deed, and for the consideration of one dollar, conveyed “ all the right, title, interest, claim and demand, which the said Carneal acquired in the premises, by virtue of the deed from William Irwin,” to Nicholas Longworth. The latter now claims to be the absolute owner, while the complainants insist that he is merely a mortgagee, and that they have a right to redeem, upon the ordinary terms. The city lots were conveyed by Carneal to Archibald Irwin, and are not now in controversy.
    It appears that, in the year 1820, Wm. Irwin was indebted to the Bank of the United States to the amount of about $18,000, evidenced by notes, upon which Nicholas Longworth was indorser for his accommodation. For this debt the bank held a mortgage from Irwin, upon a large amount of real estate in and about the city of Cincinnati, which was then deemed, by all the parties in interest, as sufficient security for the claim. The land in controversy formed no part of the premises mortgaged to the bank. At this time, Longworth was the intimate friend and legal adviser of William Irwin.
    *In 1821, Irwin, being a surety on the official bond of one Smith to the government of the United States, and being apprehensive that a suit might be brought, which would affect his credit, and cause him temporary embarrassment, consulted Longworth as to what was best to be done. The nature of this interview will best appear from the principal answer of Nicholas Longworth, a portion of which is subjoined :
    “ It was, I believe, early in the month of August, 1821, that William Irwin called on me, and stated that a suit was then pending, or that he daily expected one against him, as the security of James Smith to the government, and which would bind up, if not sacrifice his property, when, in truth, nothing was due the government, as they expected soon to be able to show, and obtain a discharge; that, in the interim, he wished to convey his real estate to me, till he could get the claim settled. I suggested his conveying to his son Archibald. This he refused, saying it would at once be said to be fraudulent, and lead to bills in equity to set it aside. I then proposed that he should make the conveyance to Thomas D. Carneal, for the same object. This he refused, and more positively, saying that it would lead to the same result, and was to him more objectionable, as it would be doing indirectly what he refused to do directly. I then observed to Mr. Irwin that the conveyance could be made to Carneal, for my indemnity; but, if done, it must be bona fide and absolute, and with the distinct understanding that it was to remain for my indemnity, till the sum or sums it was to secure were paid and satisfied; for we all three might, and probably would be called on to answer a bill, setting up the conveyance as fraudulent. He observed that he expected it, that he wished it bona fide, and so arranged as to stand the test. He then asked me to draw the deed; said he would call and get it, have it executed and handed back to me to deliver to Carneal, and take the declaration of trust to meet my own wishes and views, and in a manner to be valid. He called for the deed, had it executed, and brought it back to me. I named the subject to Carneal, who *is about as negligent as myself, and the business rested till about the-day of March following, when Mr. Irwin called, quite out of humor, having learned from Carneal, or some other person, that the matter was not yet closed; though I had, for safety, given the deed for record within six months. I immediately called on Mr. Carneal at his residence at Elmwood, and drew up a declaration of trust, and handed it to him to sign. On reading it, and discovering that, after indemnifying me as the indorser of Mr. Irwin to the Bank of, tire United States, it was to go to secure his creditors generally, he objected to accept the trust, unless a special provision was made to secure the $2,912 loaned William Irwin to pay Johnson, and for which Mr. Irwin and Mr. Carneal were under pledge to give me a note—Carneal as security. Although so to do was against my interest, 1 thought it reasonable, and, as a matter of necessity, not choice, drew up a new declaration of trust, with the provision, which he signed, and tho copy of which is hereunto attached. Its insertion, at the time, I suppose met the approbation, of Wm. Irwin, and was done by me under the discretion in me vested by Mr. Irwin.”
    It seems that Carneal had previously agreed, verbally, to become surety for Irwin to Longworth, in $2,912, growing out of a transaction with one Johnson; and he refused to accept the trust, unless he, too, could be specially indemnified. The instrument then executed by Carneal, and called the “ First Declaration of Trust,” is as follows:

      “ This may certify, that whereas William Irwin has deeded to me the equal undivided moiety of a tract of land, lying east of Cincinnati, estimated to contain two hundred acres, situate in fractional section number five, township three, and second fractional range, and also the north half of lots number one, two, and three, in square number one, in that part of Cincinnati laid off by the United States; said conveyance has been made me m trust for the following purposes, and no other: Whereas, William Ii'win stands indebted to Nicholas Longworth in the sum of $2,912, for so much money by him paid *for said Irwin to John Johnson ; and whereas the said Nicholas Longworth stands as indorser for said Irwin in the Branch Bank of the United States, in Cin. cinnati, to a large amount, this may, therefore, certify, that I hold the same in trust; in the first place, to secure said Nicholas Long-worth in the repayment of the aforesaid, sum and interest from the-date; and, secondly, to indemnify and save harmless the said Nicholas Longworth, as the indorser of said Irwin; and, thirdly, the overplus to the creditors, if any, of the said Wm. Irwin; and, lastly, to account to said Wm. Irwin,-his heirs, executors, and administrators, for the remaining balance, if any, in my hands. If said Irwin should not pay said Nicholas Longworth the aforesaid' sum of money and interest yearly, within five years from this date, and pay the several notes in the branch bank, on which said Nicholas Longworth is indorser, or otherwise obtain his discharge from liability in the same, I am to sell the aforesaid premises at private sale, or public auction, for cash or on credit, at the discretion of said Nicholas Longworth, and apply the proceeds in the manner heretofore pointed out: First, the private debt of said Nicholas Longworth; secondly, the notes in the branch bank, on which said Nicholas Longworth is indorser of said Irwin; thirdly, to pay from the surplus, if any, other debts due by said Irwin; and, lastly, to account to the said "William Irwin, his heirs, executors, admin - istrators or assigns, for the remaining balance, if any.
    “ Thomas D. Carneal.

      “March 16, 1822.”
    Irwin was not consulted as to the terms of this instrument, thus executed by Carneal and placed in the possession of Longworth. When he came to know them he was much offended. Harsh words passed between him and Longworth, and they never spoke to each other again. In their last interview, however, Longworth had proposed to “ cancel all transactions ” if Irwin would procure his release from the bank. This the bank refused. Carneal then interposed his friendly offices. He proposed to persuade Long-worth to let the property %-emain in him “ as further security to Longworth” for his liability as indorser, “alone.” To this Longworth assented, or, as he says, “ went a step beyond,” by releasing Irwin from all other liabilities to him. Longworth drew a paper to this effect, which Carneal showed to Irwin, who agreed to the substance, but not to the. “ wording.” Carneal drew another, which obviated Irwin’s objection. It has no date, but was signed by Irwin and Longworth,' and left with Carneal for safekeeping. JVo other person ever saw it until it was exhibited in this case.
    This paper, called, by way of distinction, “The Second Declaration of Trust,” reads as follows:
    “ The real estate transferred to Thomas D. Carneal-, to continue as collateral security for Nicholas Longworth’s indemnity, as indorser of William Irwin, in the Bank of the Hnited States, or until said Irwin releases said Longworth from said indorsements.
    “ The claim against Phillips to bo assigned when judgment is obtained, to be applied to the discharge of Jabez Longworth’s debt, due from Farmers and Mechanics’ Bank. Longworth to give a receipt for any balance due him on the amount paid for William Irwin, on account of Farmers’ and Mechanics’ Bank, and release said Irwin from the debt due for moneys paid Johnson and look to the Farmers’ and Mechanics’ Bank for the same.
    (Signed,) “ William Irwin,
    “Nicholas Longworth.”
    Of this second declaration of trust, Longworth, in his answer, gives the following account:
    “ I concluded to go a step beyond the proposal of Mr. Carneal. I accordingly said to Mr. Carneal, ‘ I will go beyond tbe proposal; I will absolutely discharge William Irwin from the $3,900, or about that sum, due me (being the amount of a debt I paid of his to the Farmers and Mechanics’ Bank), and also release him from the payment of the $2,912 lent him, and its interest, and for which he was to have given his note with *your indorsement, and look to the bank for it, if they should ever be able to pay it.’ Tho latter was a sum borrowed of John Johnson by William Irwin, to relieve the bank, and lent by me to Irwin to pay Johnson; and this was an additional reason with respondent, at the time of the loan, to require the note with Carneal’s indorsement. For, respondent having been (if not then) a director in the bank, he was apprehensive that Mr. Irwin would be less particular about paying it. I proposed that Mr. Irwin should have the Phillips claim prosecuted to judgment, and, when in judgment, assigned to me, on account of the Jabez Longworth money loaned him, to which they agreed, and it was inserted in the trust.
    “And respondent did, as part of the same proposal, agree that tbe deed of trust to Carneal should continue for his indemnity as indorser in the Bank of tho United States alone, and should be given up whenever that debt was paid by Irwin, or respondent’s release obtained. Mr. Carneal stated this arrangement to Mr. Irwin, who, he informed me, was highly pleased with it, and had requested him to have'it reduced to writing, to prevent future misunderstanding. It was drawn by Mr. Carneal, under the supervision of Mr. Irwin, and was by us signed, and by us left in the hands of Mr. Irwin for safe-keeping.”
    On the death of Wm. Irwin, Carneal, the trustee, and White-man, the son-in-law, were appointed administrators, with the will annexed. Tho estate was probably insolvent, although no such return was made by the administrators; nor has there ever been any formal settlement of the estate by them. Longworth has never presented to them any account or vouchers for his claim against the estate. In the,meantime, the property mortgaged by Irwin to the United States Branch Bank, has been all sold, and left a deficit, which Longworth says amounted, with interest, on January 1, 1839, to $19,000. This amount he claims to have paid.
    On January 11, 1839, the heirs of Wm. Irwin (Lewis Whiteman . acting for his children), executed an order *of conveyance without any consideration paid to them, directing Carneal to convey the city lots to Archibald Irwin, and the undivided half of the “ hill tract,” to Nicholas Longworth. Of this paper the following is a copy :
    “Whereas, on August 13, 1821, William Irwin, deceased, deeded to Thomas D. Carneal a certain lot of ground on the corner of Fourth and Ludlow streets, in the city of Cincinnati, and the undivided half of two hundred acres of land on the hills east of said city, in trust for the use of Archibald Irwin, to discharge the debts of William Irwin & Son; and whereas, subsequently the said William Irwin, deceased, did, by written memorandum, agree that the property aforesaid should be hold for the security of Nicholas Longworth, as his indorser in the Bank of the United States; now> know all men by these presents, that we, the undersigned, heirs of William Irwin, deceased, do hereby authorize said Thomas D. Carneal to execute a deed to said Archibald Irwin for the lots aforesaid, and to the said Nicholas Longworth a deed for the land aforesaid, and do hereby express our free consent and approbation to the same, as heirs of said deceased. Witness our hands and seals at Cincinnati, January 11, 1839.
    “L. Whiteman, [l. s.]
    “ J. F. Irwin, [l. s.]
    “ W. Irwin, [l. s.]
    “A. Irwin, [l. s.]
    “ Witness: N. MoRill.”
    Under this order, Carneal, the trustee, on January 21, 1839, conveyed the city lots to Archibald Irwin, and the hill tract to Nicholas Longworth, they having agreed to such a division of the property, after contending for maDy years that the trust had been created for the single benefit of the one or the other, as the claim happened to be preferred. On executing these conveyances, Carneal took from the grantees receipts, of which copies are as follow, viz:
    “Received, Cincinnati, January 17, 1839, from Thomas D. Carneal, Esq., a deed for the lot mentioned in the within *memorandum, which I acknowledge to be in full of all claims against the estate of William Irwin, deceased, for liabilities for debts of William Irwin & Son.
    “Archibald Irwin.”
    “ I have received from Thomas D. Carneal, a quitclaim deed for one hundred acres of land, more or less, east of Cincinnati, which conveyances wero made me by the order of the heirs of William Irwin, deceased, and which I accept in full of all claims and de: mands against the estate. Nicholas Longworth.
    “Cincinnati, January 21, 1839.”
    Indorsed on the back:
    “ The conveyance is for the undivided half of two hundred acres, more or less. Nicholas Longworth.”
    The following is the explanation given by Thomas D. Carneal, Archibald Irwin, and N. Gr. Pendleton, as to the manner in which the above order for a conveyance was obtained, and the purpose for which it was required. Carneal says:

      “ That order [to convey] was obtained through N. Gr. Pendleton, Esq., who acted, in the negotiation of compromise, as the friend of Mr. Archibald Irwin, and in this way. I said to Mr. Pendleton, Longworth and Irwin having agreed, I, as trustee, will not make the conveyance unless so ordered to do so by the heirs of Mr. William Irwin. That order must be given for my safety. Mr. Pendleton agreed with me in opinion—agreed to obtain the order; it was obtained, and I made the conveyances accordingly, immediately after the order was given. ... At the time the order was given on me by the heirs of Mr. William Irwin, deceased, to make the deeds to Archibald Irwin and Nicholas Longworth, there was an unpleasant misunderstanding between Mr. Archibald Irwin and myself, or his brothers, Mr. William Irwin, or Mr. James E. Irwin; henee, I had no conversation with either, on the subject of the order, and, through Mr. N. G-. Pendleton, required the order of the heirs to make the deeds to Longworth and Archibald Irwin, before I would make the deeds.”
    ^Archibald Irwin, in his deposition, says :
    “ My brother William was fifteen years old in the January preceding the execution of that deed, and my brother James was thirteen years old in April of that year, 1821. They never had any means of knowing the trust under which the property was conveyed or holden, within my knowledge. I never talked with either of them of the trust deed subsequently. They knew, generally, that there was a controversy between Mr. Longworth and myself about some property, but they never knew anything about the details of that controversy from me. . . There was no personal interview between Mr. Longworth, Mr. Carneal, and myself, in regard to the compromise, ly friend, Colonel Pendleton, passed between myself and Mr. Carneal, and Mr. Longworth. He, Colonel Pendleton, brought me a paper, which ho said Mr. Long-worth requested, or required I should sign, and asked me whether I thought my brothers would sign it. I told him that I had no doubt that they would sign anything that I would, adding that they had no interest, as I verily believed, at the time, that they had not. If I had not believed that my brothers had no interest, I should never have made the compromise......They had no knowledge that they had any interest in the trust property —that I aim aware of; and I verily believe that they had no knowledge whatever that they had any legal claim. I never, as I have before stated, viewed them as having any rights. I considered that the property equitably and justly belonged to myself. I had no conversation with them prior to, and at the execution of the paper above referred to, to the best of my knowledge and belief, in relation to the subject. I did not go to them with the paper for their signatures. . . . Neither William nor James took any part in the compromise between Longworth and myself, that I knew of, except signing the paper. 1 have no knowledge, nor do I believe that they, at the time, had any knowledge of a receipt given to Carneal, by either Longworth or myself. . . . They had no knowledge, to the best of my belief, of the state of the ac-
    counts ^between the estate of their father, William Irwin, and Mr. Longworth; if they did, they knew more about it than I did myself.”
    N. G-. Pendleton says: “By the authority of Archibald Irwin, 1 informed Carneal, that, in order to settle their conflicting claims to the trust property, if he would convey to Irwin the lots on Fourth street, he might convey the country property to Long-worth. After some time, Carneal informed me that Longworth assented to their arrangement; but that he (Carneal), for his security, must have the assent of the heirs of William Irwin in writing. Such assent was procured, and thereupon Carneal convoyed the property according to the arrangement. ... To the best of my recollection, I had no conversation with William Irwin or with James F. Irwin with respect to the negotiation.”
    Lewis Whiteman says that the administrators never considered that this “hill land” constituted any portion of the estate, for the reason that Archibald Irwin insisted that his father had created .the trust in Carneal to secure him for debts and moneys which he had advanced and was bound to pay for William Irwin & Son; and that Mr. Longworth claimed that the property conveyed was to secure him for his indorsements for William Irwin, and consequently that the whole would be absorbed in satisfying these several claims. . . . He says he has no recollection of holding any conversation with William Irwin and James E. Irwin on the subject of signing the paper. They were not present when witness signed.
    The granting clause of the deed from William Irwin to Thomas L. Carneal is irregular in this, that it names “William Irwin” as grantee, instead of Thomas D. Carneal. The habendum, etc., is “ to the only proper use and behoof of the said Thomas D. Carneal, his heirs and assigns forever.”
    Longworth had taken possession of the property in controversy some ten years before he received his deed from Carneal. In July 1831, he wrote a letter to C. K. Smith, the then owner *of the other undivided half of the “ hill tract,’ in which he used this language:
    “ I go east soon, and before going I am anxious to bring my business to a close with Irwin’s estate. This will be effected by my releasing to the heirs, on their paying me a certain sum, or my buying out their equity of redemption. In either case it will be important for me to buy your reservation, and the more so to effect a • division, if I release to them.”
    The property is now confessedly of great value. Is is believed that, from the mass of pleading, evidence, and exhibits, enough has been extracted and abstracted to present with fairness the controlling facts in the case.
    Wm. M. Corry, T. Walker, T. Ewing, H. H. Hunter, and Pugh & Pendleton, for complainants.
    T. Walker, for complainants, argued :
    I. That Longworth acquired from Carneal the exact title, and •no more, which Carneal acquired from Irwin; so that Longworth became trustee, first, for his own indemnity, and secondly, for the representatives of Irwin, who yet have an equity of redemption not divested by foreclosure, conveyance, or lapse of time.
    II. The effect of the order to convey, executed for the safety of Carneal, merely divested him of the trust, and devolved it upon Longworth.
    III. The order did not have the effect to release the equity of redemption of Irwin’s heirs, because they were not aware of any such right. They signed it under 'the mistaken belief that they jjaid no interest in the property. 1 Story’s Eq., secs. 122,140, 147; Farnam v. Brooks, 9 Pick. 212; Turner v. Harvey, 1 Jacob, 169 ; 4 Cond. Eq. 79 ; and see Cholmondeley v. Clinton, 2 Merivale, 171; Willan v. Willan, 16 Ves. 72; Bowles v. Stewart, 1 Sch. & Lef. 209; Barstow v. Kilington, 5 Ves. 593; Bell v. Gardiner, 4 Man. & Gr. 11, or 43 E. C. L. 16; D’Oliff v. South Sea Co., cited 6 Ves. 601; Washburn Merrills, 1 Day, 139; 4 Kent’s Com. 158; Fonblanque, 107 ; Hullet v. Collins, 10 How. U. S. 174.
    IY. The complainants are within the rules established by these authorities. They executed the order in ignorance of the material fact, that they could have claimed a reconveyance by reimbursing Longworth for what he had paid to the branch bank. A circumstance, not only tending to prove their ignorance, but to account for it, is the false statement of a most material fact, contained in the recital of the order to convey. The statement is, that their father conveyed this property to Carneal “ in trust for the use of Archibald Irwin, to discharge the debts of William Irwin & Son.”
    Again, the total want of consideration is a very pregnant circumstance. It is- not pretended that complainants ever received one cent for relinquishing their claim.
    T. Ewing, on same side, argued:
    That the deed from Irwin to Carneal did not convey the legal title. 4 Kent’s Com. 468 ; 2 Black. 298; Goodtitle v. Gibbs, 5 Barn. & Cres. 709; Deaver v. Rice, 3 Battles’ N. C. 433; Seymour’s case, 10 Coke, 419; Sammes’ case, 6 T. Coke, 467; Baldwin’s case, 2 Coke, 22; Windsmere v. Hobart, Hob. 482, 313 b, and note; Dodwell v. Gibbs, 5 Barn. & Cres. 709; 12 Eng. C. L. 359; Coke Lit. 231, a; Shep. Touch. 75 ; Shyne v. Topham, 3 East, 115.
    H. H. Hunter argued, on the part of the complainants:
    I. That they were induced to give their order to the trustee, Carneal, to convey, in ignorance of their rights and of the truth of the facts upon which their rights depended, and by reason of an untrue (though not a fraudulent) representation of the facts embodied in the writing containing their order, in regard to the trusts under which Mr. Carneal in fact held the title.
    II. That there was not, in truth and fact, any contract or agreenient made between said Longworth and the heirs ; or *between him and the administrators of the estate of William Irwin, whereby they agreed to give, and he to receive, said lands in pa^H^ ment of his claims against said estate; and, '■

    III. That if it had been so agreed, under a condition of igno-., ranee on the part of the complainants, as aforesaid, of their rights, and to their injury, a court of equity will, upon the equitable terms of full payment to the respondent of his demands, for the security of which the trust was created, let them in to redeem.
    Y. Worthington, for defendant Longworth :
    I. What was the effect of the deed to Carneal, without some declaration, in writing, executed by him, specifying the purposes for which he hold the lands convoyed to him ? There is no trust apparent in the deed, which puiqiorts to be in consideration of $5,000, which in fact was not paid. If the deed to Carneal was made by Irwin with intent to defraud his creditors, then it is within the statute of frauds, and void as to those creditors, but valid as to all other parties, and transmits the legal title to Carneal, beyond the control of Irwin or power of Longworth. Neither, if such be the purpose of the transaction, can coerce Carneal, at law or in chancery, to execute the trusts, for which ho had in writing declared he received the title to said lands. 18 Ohio, 418; 16 Ohio, 54; 15 Ohio, 430; 14 Ohio, 54 ; 10 Ohio, 162 ; 7 Ohio, pt. 1, p. 78 ; pt. 2, p. 70 ; 4 Ohio, 418; 3 Ohio, 527 ; 1 Ohio, 469. If, then, the deed was made with the intent to defraud creditors, without or with the declaration of trust, it transmits the legal title to the grantee beyond the control of the grantor, or of the beneficiaries in the declaration of trust.
    If the deed was made, not with an intent to defraud creditors, but with intent that Carneal should in good faith hold the property on special trust to secure Longworth or Archibald Irwin, then the deed would transmit the legal title to Carneal, and he would hold the property in his own right, and *would be liable for 'the consideration expressed in the deed, unless he executed, in writing, a declaration in trust, as required by the statute of frauds. 4 Russell, 423; 9 Conn. 96 ; 6 Hill, 219; 2 Story’s Eq., sec. 1199, n. 2; 2 Murphy, 279

      It is true, implied or resulting trusts are raised simply by operation of law, and require no written declaration or written proof; but express trusts must be evidenced by writing, though they even be created by parol. 5 Ohio, 255 ; 4 Kent’s Com. 306.
    We then conclude, the effect of the deed to Carneal, without the declaration of trust, signed by him, of March 16,1822, or some-other declaration'of trust signed by him, would be to transmit to him absolutely the lands thereby conveyed, and he would be liable only for the consideration money expressed in said deed.
    II. What was the effect of the declaration of trust executed by Carneal, March 16, 1822? The deed vests in him the legal title, by virtue of which he could recover possession. 7 Ohio, pt. 1, p. 76 —pt. 2, p. 70; 15 Ohio, 408. If, then, as we maintain, the deed and declaration of trust were intended to defraud the creditors of the grantor Irwin, he could receive no aidln chancery to enforce the trust, but would be repelled. The complainants in both bills—his heirs at law—are in no better condition than he was. 15 Ohio, 430; 4 Bibb, 70.
    This brings us to consider the document executed by Irwin and Longworth, and deposited with Caracal. It is no part of the deed to Carneal, nor the declaration of trust executed by him. It is not under seal, and it is made at a different time. It is in fact a distinct and independent agreement, binding upon Longworth and Irwin alone. 3 Bibb, 10; 10 Ohio, 438; 5 Ohio, 518; 9 Conn. 378. After this arrangement, the property remained in Carneal in trust, as before, except so far as that arrangement changed the rights of Longworth ; but, as between the original parties, it did not purify the original grant and certificate of fraud, and make them valid. 5 Cowen, *571. The trust might have been abandoned and re-arranged. 10 Ohio, 232; 12 Ohio, 339.
    This point has no other bearing upon the case than this: If it does not purify the original arrangement, it does not enable the complainants to invoke the aid of the chancellor in the execution of the trust, any more than the original arrangement would, and presents no grounds for their aid, or to prevent their rejection from a court of equity. But if it does purify the original arrangement, and cleanse it of all fraud, and make it tractable in a court of chancery as to Longworth, upon the principles announced in 8 Ohio, 533, then the complainants may ask the enforcement of the trust.

      Can the complainants assume they executed the order of January 11,1839, without consideration and under a mistake?
    1. As to the consideration. The order is under seal, and a seal always imports a consideration.
    But it may be said, we can not go out of the order to show the inducement to its execution. We believe it is every day’s practice between parties, to go back of a deed to ascertain the real consideration. You can not contradict the consideration expressed in the deed to have passed, but you can show a further or other consideration. 1 A. K. Marsh. 582; 2 Ohio, 185; 5 Ohio, 258. When fraud is charged, the whole matter is open for examination. 15 Ohio, 600.
    These complainants are certainly charged with constructive, if not actual notice. The legal effect of notice, constructive or actual, is the same. 2 Hill, 461. They are chargeable with their ancestor’s knowledge of the trust. 2 Ohio, 386; 6 Ohio, 238; 7 Ohio, 80, pt. 2; 8 Ohio, 221; 15 Ohio, 430. Notice to their trustee is notice to them. 11 Wheat. 78; Story’s Agency, secs. 139, 140; 2 Hill, 461; 5 Ohio, 425; 10 Ohio, 83, 465. The order was sufficient notice to put them on inquiry. 1 Gall. 41; 7 Conn. 324; 9 Conn. 286; 3 Conn. 446; 4 Cowen, 717; 4 Ohio, 446 ; 5 Ohio, 425, 452 ; 8 Ohio, 251; 10 Ohio, 83, 415; 13 Ohio, 426. *Longworth was in possession of the hill lands, and that was notice. 5 Ohio, 425, 452; 7 Ohio, 84, pt. 2; Ohio, 288; 13 Ohio, 426. There was no such mistake, or ignorance of material fact, as will avoid the deed to Longworth. 1 Story’s Eq., secs. 140, 157 ; 2 Kent, 484, 490; 5 Mason, 577; 11 Conn. 143; 2 Sumner, 390, 394; 3 Story, 700; 1 Ohio, 450; 18 Conn. 108; 9 Pick. 212. The resulting equity of the heii-s was transferred by the order to convey, and deed in pursuance of it. 13 Ohio, 426; 8 Ohio, 217; 15 Ohio, 427; 2 Story’s Eq., sec. 1199; 8 How. 248, 235; 8 Peters, 582; Fell on Guaranties, 39, sec. 28; 1 Bos. & Pul. 158; 1 Greenl. Ev., sec. 281; 5 Ohio, 257.
    Carneal, as trustee, had power to sell; and after such sale the right of redemption would be gone, except for extrinsic causes. 10 Ohio, 204; 1 Bald. 154; 4 J. J. Marsh. 466; 2 Johns. Ch. 23; 4 Ired. Eq. 137, 288; 2 Gill, 376; 16 Ohio, 478, 76; 15 Ohio, 427; Sug. on Powers, 475; 7 Ohio, 79, 113, 216, pt. 2; 8 Ohio, 221; 12 Ohio, 193; 2 Ohio, 194.
    The administrators of Irwin, by assenting to the sale to Long-worth, as they did by the deed to him and order to convey, cut off the resulting trust in favor of the heirs. 6 Ohio, 287; 7 Ohio 80, 73, pt. 2; 15 Ohio, 696, 427; 5 Ohio, 540; 8 Ohio, 24; 17 Ohio, 356 ; 2 Johns. Ch. 23.
    As the legal title was in Carneal, Whiteman only had courtesy in his deceased wife’s resulting equity ; and by the order of January 11, 1839, that passed to Longworth. 4 Kent, 27; 1 Hill. Dig., sec. 38; 8 Johns. 207; 5 Conn. 235 ; 1 Powell on Mortg. 312 ; 5 Pick. 146; 3 Powell on Mortg. 922; 1 Sumner 128; 4 Mason, 414; 9 Paige, 168; 16 Pet. 54; 7 Wheat. 548 ; 4 Pet. 506 ; 6 Pet. 402; 2 Johns. Ch. 216 ; 7 Johns. Ch. 125 ; 7 Merivale 360. As to what i» a mortgage or deed of trust: 8 Ohio, 24; 11 Ohio, 334; 16 Ohio, 76, 469; 17 Ohio, 356 ; 15 Ohio, 427; 19 Ohio, 215. The deed to Carneal was not a mortgage, but a deed of trust. When the trust is satisfied, there might be a resulting trust, but no equity of redemption. 3 Hill, 101. Carneal could sell ^absolutely, to execute his trust. 4 Kent, 318 ; 19 Conn. 134.
    Henry Stanbery, for Longworth :
    The trust to Carneal was coupled witti a power to sell absolutely. Sug. Vend. 393, 169; 3 P. Wms. 9; 2 Vern. 153; Long v. Long, 3 Ves. Jr. 445 ; Kenworthy v. Bate, 6 Ves. Jr. 795 ; Barr v. McEwen et al., 1 Bald. C. C. 154; 9 Ves. Jr. 52; Osgood v. Franklin, 2 Johns. Ch. 26. The deed to Carneal was not a mortgage. Morris v. Way, 16 Ohio, 217. A sale even under a mortgage containing a power to sell, divests the equity of redemption. 1 Powell on Mortg. 12; Doolittle v. Lewis, 7 Johns. Ch. 50; Turner v. Johnson, 10 Ohio, 208.
    George E. Pugh & Pendleton, for complainants,
    in reply, argued the following propositions :
    I. The trust is evidenced by the paper which Irwin and Long-worth signed.
    1. The trustee could not convey without the consent of the heirs.
    2. The trust was not fraudulent.
    II. The administrators did not and could not release the equity of redemption.
    III. The original complainants are entitled to redeem the real estate.
    1. The order to the trustee does not release their right.
    2. The order was without consideration.
    3. They were ignorant of their rights at the time.
    4. The order receites a material falsehood.

      5. There was suppressio veri throughout the transaction.
    IT. Of the general equity of the mortgagor’s heirs, and herein of the right to an account, and the principles for stating the same.
    I. Had the trustee a power of sale ?
    1. Under the first declaration of trust.
    *The counsel for the defendants has insisted that the paper which Irwin and Longworth signed, can not be taken as a declaration of trust, because it wants the trustee’s signature. And he claims, hence, that Carneal’s declaration, notwithstanding Irwin’s repudiation of it, must be taken as evidencing some part, if not all, of the trust. We do not understand any of the authorities which he has cited as supporting that doctrine. 1 Pow. Mortg. 151; (Nottingham v. Fletcher, 2 Atk. 155.
    2. By virtue of the absolute deed.
    The following authorities cited in Mr. Stanbery’s argument, have no application : Sug. Pow. 393; Barr v. McEwen, 1 Bald. 154; Long v. Long, 5 Ves. 445; Kenworthy v. Bate, 6 Yes. 795.
    See the following: Cooper v. Whitney, 3 Hill, 101; Greene v. Dodge, 6 Ohio, 80; Kramer v. The Steubenville Bank, 15 Ohio, 253; McConnell v. Scott, Ib. 401. In Morris v. Way, 16 Ohio, 469; Turner v. Johnson, 10 Ohio, 208; Doolittle v. Lewis, 7 Johns. Ch. 45; Brisbane v. Stoughton, 17 Ohio, 482, there was an express power of sale. The Trust Company v. Reeder, 18 Ohio, 35, is decisive.
    3. Was the trust fraudulent?
    I refer, on this point, to Tripp v. Vincent, 3 Barb. Ch. 603; Swan’s Stat. 422, Stat. of Frauds; Swan, 717, 718, Ch. Act; Barr v. Hatch, 3 Ohio, 527; Repplier v. Orrich, 7 Ohio, 147, pt. 2; Stevenson v. Agry, Ib. 248; Renick v. The Chillicothe Bank, 8 Ohio, 533; Swift v. Holridge, 10 Ohio, 232; 12 Ohio, 339; 16 Ohio, 78; 7 Ohio, 78, pt. 2; 13 Ohio, 584.
    II. Did or could the administrators release the equity of redemption? Barr v. Hatch, 3 Ohio, 527; Howard v. Babcock, 7 Ohio, 78, pt. 2; Ludlow v. Cooper, 13 Ohio, 584.
    They did not, we answer, for several reasons.
    1. Neither of them professed, at the time, to act in that character. Whiteman acted as an heir, and Carneal as a trustee.
    2. They neither acted together, nor in concert, at any stage of *the business; yet the office of administrator, though confided to two, is a joint office.

      3. Archibald Irwin sent his receipt to Carneal on the back of the original order, and that suggested to Carneal the propriety of taking a receipt from Longworth also. But Whiteman did not even know of this transaction.
    4. The administrators did not consider this property as part of the assets of their intestate, and never acted in respect of it, consequently, as administrators.
    5. Carneal, the trustee, required the order of the heirs before he' would convey; and it did not then occur to him, strangely, that Whiteman’s signature and his own, as administrators, would suffice.
    6. The administrators and Archibald Irwin never had any dealings or account between them.
    7. The administrators never had any account from Longworth in respect of this land.
    8. The administrator had, long previously, settled the estate.
    III. Did the trustee execute any power of sale? 3 Sug. Vend. 228; 1 Powell on Mortg. 123, a, and the pages subsequent; 3 Sug. Vend. 240; 2 Barb. Ch. Pr. 191; The York Buildings Company v. Mackensie, 8 Bro. Parl. Cas. 42. As Longworth had possession, and did not account for profits, it is a good cause for ordering an account and redemption.
    As to the order of January 11, 1839, I claim that its legal effect is only to change the trustee, and not to destroy the trust. The order can have no operation, beyond its legal import, for several reasons:
    1. It contains a false and material recital
    2. It was executed by William and James F. Irwin, whilst utterly ignorant of their rights.
    3. The character of the trust, the state of the accounts, the condition of the property—all were concealed from them at that time. Le Neve v. Le Neve, 3 Atk. 646; Foster v. Swasey, 2 Woodb. & M. 217; Veazie v. Williams, 8 How. U. S. 134; 3 Sug. Vend. 453; 1 Story’s Eq. 5 : Leger v. *Bonaffe, 2 Barb. S. C. 475; Williams v. Champion, 6 Ohio, 170; 2 Phil. Ev. (C. & H. Notes) 209; Hobbs v. Norton, 1 Vern. 136; Raw v. Pote, 2 Vern. 289; Neville v. Wilkinson, 1 Bro. Ch. 543; Bruce v. Ruler, 2 Mann. & R. 3; Evans v. Bicknell, 6 Ves. 182; Louisiana Civil Code, art. 1875, and art. 116 of the Code Napoleon; 1 Story’s Eq. 207, 208, 4 ed.; Pearson v. Morgan, 2 Bro. Ch. 385; Hobbs v. Norton, 1 Vern. 136; Roosevelt v. Fulton, 2 Cow. 129; Smith v. Richards, 13 Pet. 37; Evans v. Llewellyn, 2 Bro. C. Cas. 150; Perkins v Gay, 3 S. & R. 331.
    4. There was no consideration to William and James F. Irwin for their signatures. 2 Johns. Ch. 30; St. John v. Turner, cited in 1 Powell on Mortgage, 122, 116 ; Longworth v. Flagg, 10 Ohio, 300 ; 10 How. U. S. 185; 1 Vern. 8; 1 Eldon, 59; 7 Johns. Ch. 40; 2 Cow. 332; 4 Dow’s Parl. Cas. 16.
    IY. Was this trust, in equity, anything but á mortgage ?
    I answer in the negative. Baird v. Kirtland, 8 Ohio, 23 ; Henry v. Davis, 7 Johns Ch. 42 ; Clark v. Henry, 2 Cow. 331; Marshall v. Stewart, 17 Ohio, 357; 1 Powell on Mortgage, 116, 119, 125; 1 Powell on Mortgage, 157, a, note: the estate of the mortgagor is said to be an equitable freehold, and an equitable estate of inheritance.
    As to the objection that the interest of Irwin’s heirs could not bo sold on execution at law, see Jackson y. Williams, 10 Ohio, 69, and Scott v. Douglas, 7 Ohio, 228, part 1. Woodruff v. Robb, 19 Ohio, 212, is conclusive.
    V. Worthington, in reply,
    cited.the following authorities as to defects in the deed from Irwin to Carneal: Fisher y. Butcher, 19 Ohio, 406 ; 2 Greenl. Cruise, 306, sec. 29; 10 Mod. ; 2 Ventris, 196, 141; Ellicott v. Slupes, 2 N. Hamp. 525; Cole v. Hulme, 8 Barn. & Cres. 568; 15 Eng. C. L. 300; Carr v. Williams, 10 Ohio, 305; 2 West. Law J. 68; Purcell v. Goshorn, 17 Ohio, 124; 2 Hilliard, 353, sec. 149; Ib. 325, sec. 15; Big. Dig. 211; Stearns v. Godfrey, 4 Shep. (Me.) 158; 4 Dev. & B. *(N. C.) 433; 4 Kent, 468 ; Bridge y. Wellington, 1 Mass. 219 ; 2 Thos. Coke, 240; Shep. Touch. 98, 75, 88; 2 Prest. Conv. 440; 3 East, 115; Cro. Eliz. 903 ; 7 Wend. 287; 20 Pick. 514; 2 Hilliard, 326, sec. 19 ; 2 Greenl. Cruise, 348, sec. 69; Ib. 351, sec. 85 ; 16 Johns. 172; 4 Mass. 136; 2 Dana, 23 ; 5 Iredell, 580; 7 Monroe, 544; 13 Ohio, 127; 2 Bl. Com. 296; 4 Kent, 495 ; 10 Johns. 456.
   Spalding. J.

The questions presented in this case derive their chief importance from the supposed magnitude of the property in controversy. They are not new, and, of course, not difficult of solution, if we give to them the same effect, whether applied to estates of two thousand or two hundred thousand dollars value.

I shall first examine the objection started to the deed under which Carneal held the land in controversy. It is said that this deed, did not transfer the legal title in the premises from Irwin to" ■Carneal, because, in the granting clause, it purports to be a conveyance from William Irwin to “William Irwin,” and not to Thomas D. Carneal. The objection is not tenable. If we recur to the deed itself, it sufficiently appears, even in the premises, that Irwin had no intention of retaining the fee in himself. It purports to be an indenture made between “ William Irwin, of the first part,” and “ Thomas D. Carneal, of the second part.” It acknowledges a consideration of five thousand'dollars as paid by Thomas D. Carneal to the said William Irwin, from which consideration springs the grant made, nominally, to William, Irwin, but completely repudiating him as the “holder of the legal title,” in language that can not be misunderstood, and which follows the description of the lands thus: “ And all the estate, right, title, interest, claim and demand of him, the said William Irwin, of, in, and to the said premises and every part thereof.”

The parties to a deed must be truly and sufficiently described, but conveyances are good when made to a grantee by a certain-designation, without the mention of either the Christian or surname, *for “ id est cerium, quod potest reddi cerium.” 4 Kent’s Com. 462.

“ Astriet, literal, and grammatical construction of an instrument, in its various parts, taken separately, would sometimes be absurd, sometimes contradictory, and frequently unjust; because against the manifest intention of the parties. But a liberal consideration is to be had of the whole instrument, in relation to the subject matter, to discover what was the true intention of the parties.” Sumner’s Adm’r, etc. v. Williams, 8 Mass. 174.

Certainly, if we adopt these rules of construction the objection disappears, for no intelligent mind can read this whole instrument and be at a loss for the true intent and meaning of the parties. But in a more critical view of the subject, the deed we are considering is effectual to pass the fee.

William Irwin could not convey to himself. The insertion of his name as the grantee is a nullity. The deed then stands as if no grantee was named in, the “premises,” and where that is the case, one named in the “habendum” may take. 2 Hilliard on Real Prop. 355, sec. 149.

“ If one give or grant land, habendum, to B., and his heirs, and he is not named in the premises, yet this is a good deed to make an estate in fee simple.” Sheppard’s Touchstone, chap. 5, p. 75,

Here, then, we have a deed, absolute on its face, conveying the land in controversy to Thomas D. Carneal. It is admitted that Carneal did not pay, and that he was never expected to pay one dollar of the consideration money, named in the deed to William Irwin, for the land.

He says, in his deposition, that William Irwin called upon him in the year 1821, and said to him: “With your consent, I shall make to you a deed for some lots in Cincinnati, and for my interest in a tract of land near this city, held jointly by Wm. H. Harrison and myself. Mr. Nicholas Longworth will prepare the deed and hand it to you, executed by me, and take *from you such a paper as will make the conveyance bona fide and stand good in law.”

For what purpose was the deed made? In August, 1838, Nicholas Longworth made a voluntary affidavit, in respect to the particulars of this transaction, and the same is now produced as evidence in the cause.

In this affidavit Longworth says he is “ as positive as he can be of any fact, after the lapse of so many years, that the sole reason given by William Irwin to him for the conveyance, was to prevent, certain claims against Irwin & Son from becoming a lien on said real estate, and for no other reason.”

This is somewhat variant from the reason assigned in his principal answer, which was, that Irwin feared the sacrifice of this property by means of a judgment about to be obtained against him by the government, as the surety of Smith. • It is a matter of no moment, however, so far as the decision in this case is concerned.

Either version, in connection with what Longworth further says in the same affidavit, will seem to satisfy a mind of less than ordinary quickness of apprehension, that Irwin wished to “ hinder and delay creditors; and that Longworth at first consented to make Carneal a trustee of the property, ostensibly for his benefit as an indorser at the bank, but in reality, to hold the same for the use of Irwin.

The explanation of Longworth, as given in his affidavit, is this :

“ I then told him that, to stand the test, the conveyance must be bottomed on a real bona fide transaction. ‘If I have anything to do with it, it must be so that if called upon we can answer under oath. I am your indorser to the Bank of the United States, who Lave your mortgage ; 1 do not ask or claim other security. If you wish, I am willing the property shall be deeded to Carneal to save me harmless from any eventual loss as your indorser to the bank. This can not be ascertained for years, and I will hold the property safe; but remember, *we may both bo called to answer under oath ; if so conveyed we must distinctly understand that it is to be held bona fide for that purpose, and that you hereafter wholly rely on my pleasure whether to let you use or dispose of any of the property or not.’ To this he readily assented.”

We do not entertain a doubt that up to the moment of the execution of the “second declaration of trust,” upon an exhibition of the testimony adduced in this case, a court of chancery would have given to the general creditors of .William Irwin the benefit of the property embraced in his deed to Carneal. We lay entirely out of view, then, the first “declaration” signed by Thomas D. Carneal, as well because it was part and parcel of a scheme to delay general creditors, not warranted by the law, as because it never received, in many of its important details, the sanction of William Irwin, and was finally abandoned by the parties in interest.

Nicholas Longworth may not impeach this deed of August 13, 1821, for fraud. As a quasi creditor of the grantor, he chose, by joining in the second declaration of trust, to regard it as valid collateral security for the bank debt, and will be bound thereby. G. & W. Renick v. Bank of Chillicothe, 8 Ohio, 533.

We now “take our departure” with a deed of the premises from Irwin to Carneal, and a written “ declaration of trust,” signed by Irwin and Longworth and lodged with Carneal, specifying that the estate transferred by said deed to Carneal “ shall continue as collateral security for Nicholas Longworth’s indemnity as indorser of William Irwin, in the Bank of the United States.”

This is “plain sailing.” The immediate and direct securities given to the bank by Irwin, and supposed to be ample, were to be first exhausted. In the event of a deficit, however, the land and town lots held by Carneal as a naked trustee were to be made available for its payment.

At this period it must have been considered by all the parties in interest, that there was a large resulting trust in William '¡"-Irwin. He could, at any moment, call for a reconveyance of all the lands held by Carneal, by paying his bank debt, or by procuring the release of Longworth in some other way. If matters were pushed to extremities, it was believed that the property directly pledged to the bank would sell for enough, or nearly enough, to liquidate the whole claim, and leave intact the greater part of the trust property.

In 1824 William Irwin died, and from that period onward the equitable interest of Irwin and his heirs se'ems to have become obscure. The fee of the land was in Carneal, and from 1829 the possession and apparent ownership existed in Longworth. It is true that Archibald Irwin occasionally gave demonstration that Longworth was a usurper of his exclusive right. But for long years, and whilst these complainants were passing from childhood to manhood, no voice was heard to whisper that the personal representatives or heirs at law of William Irwin had any available interest in this great property. Longworth was in possession and claimed the whole. Archibald Irwin, although out of possession, claimed the whole, or at least the claims of each were predicated upon an alleged expenditure of money for William Irwin to so great an amount as to place the property entirely beyond the hopes of the administrators on the estate, saying nothing of the heirs and devisees.

In this condition of things, some time in the year 1838, or in the beginning of 1839, Archibald Irwin, through his friend N. G. Pendleton, proposed to Nicholas Longworth a division of the trust property. The proposition was accepted, and Carneal, the trustee, agreed to convey the lands in conformity with their arrangement, if the heirs of William Irwin would sign an. order for his safety. Col. Pendleton, the common friend of Nicholas Longworth and Archibald Irwin, applied to the latter to ascertain if his brothers, the present complainants, would probably sign the order. Archibald replied that “they would sign anything that he would, but that they had no interest.” The order was obtained and the deeds were made, by which ^Thomas D. Carneal conveyed to Nicholas Longworth all the interest in the “hill tract” which he had acquired by virtue of the deed from William Irwin; and to Archibald Irwin all the interest in the city lots which he had acquired from the same source.

Before the execution of this quitclaim deed by Carneal to Long-worth, no one had the boldness to deny the existence of an outstanding equity of redemption in the heirs of William Irwin. Whether the property was worth the serious exertion of the right when made subject to the somewhat magnified claims of both Nicholas Longworth and Archibald Irwin, is another and different question. Longworth himself admitted, in the most explicit terms5 in his letter to C. K. Smith, that the heirs of Irwin had “an equity of redemption ” in this property.

How has the conveyance from Carneal affected this right ? So far as it concerns the interest of the children of Louisa Whiteman, deceased, the condition of things is not changed at all, except that Thomas D. Carneal has devolved his trust upon Nicholas Long-worth, who will be made answerable to these children in his stead. If, however, by any unforeseen reverses of fortune, Longworth should no longer possess the ability to respond to this class of cestui que trusts, we do not see how Carneal can escape liability for a palpable breach of the trust. As it respects the complainants, wo find nothing in their written order of January 11, 1839, which purports to convey to Longworth their equity in the property. •Upon its face, the instrument -is nothing more than a safeguard to Carneal in executing deeds to Longworth and Archibald Irwin. He procured the order to be made, not to pass an equity from the heirs of Irwin to anybody, but for Ms own safety in conveying the fee of the land to Longworth and Archibald Irwin. He is author-' ized by the order, so far as the complainants are concerned, to make the deeds. If we travel outside of the order, and attempt to establish, by evidence aliunde, that the object had in view by the parties was to place the whole title to the “hill tract,” legal *and equitable, in Nicholas Longworth, we shall ascertain, by the same species of evidence, what is equally fatal to his claim, to wit, that William -Irwin and James F. Irwin, the complainants, were not acting in this business of directing conveyances with that knowledge and understanding of their just rights which they should possess before they can be bound thereby. 3 Serg. & Rawle, 331; 1 Story’s Eq., sec. 122.

Not only was there an error in reciting, in the paper itself, the uses to which the estate had been subjected in the hands of the trustee; but, if we may believe the testimony, these complainants were taught to believe, by their elder brother, that they had no interest in the trust property. Under such circumstances, wo should feel bound to interfere and set aside the instrument, if it did, indeed, contain an express relinquishment of their equity of redemption.

In Evans v. Lewellyn, 2 Brown’s Ch. 151, a conveyance was set aside as improvidently entered into, where the plaintiffs were uninformed of their rights, though there was no actual fraud or imposition. The authorities are numerous to this effect, and I shall only cite, in addition, the strongly marked case of Hallett et al. v. Collins, recently decided in the Supreme Court of the United States, and reported in 10 How. 174: “ The assignee obtained releases, for an inadequate consideration, from the heirs of Collins, who had just come of age, were poor, and ignorant of their rights. These releases were hold void.”

We are entirely satisfied that the defendant, Nicholas Longworth, holds the premises commonly called the “hill tract,” consisting of one hundred acres, more or less, of land, near the city of Cincinnati, as the same were conveyed to him by Thomas D. Carneal, in the character of a mortgagee, for the security of any unpaid balance of the debt due to the late United States Branch Bank, at Cincinnati, by William Irwin, deceased, upon which the said Long-worth was surety for said Irwin.

The complainants, as heirs at law of said William Irwin, ^deceased, have a right to redeem the premises upon payment of the mortgage debt and interest. •

A decree will be rendered accordingly.

Hitchcock, C. J., dissented. See his dissenting opinion in Appendix B.


source: Caselaw Access Project

author: Spalding, J.

license: Public Domain

text:
    James Griffith et al. v. The Commissioners of Crawford County and the Ohio and Indiana Railroad Company.
    Pending a suit in the common pleas, this court has no constitutional jurisdicdiction of a motion to dissolve an injunction therein.
    A special legislative enactment will not confer jurisdiction upon this court to prevent the operation of an injunction allowed by the common pleas, in a case of which that court has taken jurisdiction.

      Obiter dictum by Judge Spalding alone:

    That the legislature has no constitutional power to authorize the majority of citizens in a county to vote a subscription of stock to a railroad company, that shall be binding on the property of the minority.

      This is a motion to dissolve an injunction reserved in the county of Crawford.
    The complainants filed their bill in the court of common pleas of said county, representing that they are citizens and tax-payers therein; that at the annual election, held in October, 1848, the question of authorizing the commissioners of said county to subscribe $100,000 to the capital stock of the Ohio and Pennsylvania Railroad Company was submitted to the legal voters of said county, under the provisions of an act of the general assembly of the State of Ohio, ^passed February 26, 1846 (44 Ohio L. L. 192), and a majority of the votes cast on said question was in favor of such subscription; that said Ohio and Pennsylvania Railroad was not located through said Crawford county, or to the town of Bucyrus, and consequently the commissioners of said county refused to subscribe stock thereto; that on the 20th day of March, 1850, the Ohio and Indiana Railroad Company was incorporated by an act of the general assembly of Ohio (48 L. L. 297), and that afterward, on'the 23d day of March, 1850, the same general assembly passed an act authorizing and requiring the county commissioners of said Crawford county to change the subscription of stock authorized to be made to the “ Ohio and Pennsylvania Railroad Company,” and subscribe the same to the capital stock of any company which was then, or thereafter might be, incorporated to construct a railroad commencing or terminating at any point in, or jtassing through or adjoining the town of Bucyrus, the county-seat of said county (48 L. L. 277) ; that pursuant to the provisions of this last-mentioned act, the county commissioners did subscribe $100,000 to the capital stock of said “ Ohio and Indiana Railroad Company;” that said commissioners issued the bonds of said county for $10,000, and delivered the same to said company, and that said bonds are now in the possession and under control of said company; that the balance of said bonds have not yet been issued by said commissioners, but that the officers of said company are importuning them for the same; that said subscription was contrary to law, etc.
    The prayer of the bill is, that the company may be restrained from selling, or in any manner disposing of said bonds; and that the commissioners be enjoined from issuing additional bonds, as well as from levying a tax for the payment of those already issued, and for general relief.
    On November 6,1850, an injunction was allowed by the president judge of said court of common pleas, which has continued in force until the present time.
    *On March 24, 1851, the general assembly of the State of Ohio enacted, that in any cause in equity, pending in the counties of Wyandot and Crawford, wherein an injunction has been allowed by the court of common pleas, or the president judge thereof, the party against whom such injunction has been allowed, “ may file a motion in the Supreme Court of the county in which such cause is pending, or in the Supreme Court in bank, with copies of the papers in the cause in the common pleas; and the Supreme Court in the county, or the court in bank, shall have competent power and jurisdiction to hear and determine said motion; and such determination shall be duly certified back to the common pleas, by the clerk of the Supreme Court or the court in bank, as the case may be.” 49 Local L. 321.
    Under this act, the motion to dissolve the injunction in this case, was filed in the Supremo Court for Crawford county, at its last term, and was reserved for the opinion of all the judges here.
    It is objected by complainants below:
    1. That the question, as to the dissolution of the injunction, is not properly in this court for its decision.
    2. That the act authorizing the county of Crawford to subscribe to the capital stock of the railroad in question, is void; for the reason, that it is in violation of the great and essential principles of liberty and free government, as recognized and established by the “ bill of rights.”
    C. K. Watson, O. Bowen, and W. H. Gibson, for complainants.
    0. Bowen claimed:
    1. That the following authorities warrant the intervention of chancery in all cases of this description : Mohawk & H. R. Railroad v. Archer, 6 Paige, 88; Oakley v. Trustees of Williamsburg, Ib. 164; Gardner v. Trustees of Newburg, 2 Johns. Ch. 162; Belknap v. Belknap, Ib. 463; Cooper et al. v. Alden, Harrington’s Ch. 72 ; Bonaparte v. The *Camden and Amboy Railroad Co., Bald. C. C. 205; Corning et al. v. Lawrence, 6 Johns. Ch. 440; Livingston v. Livingston, Ib. 497; Shand v. Aberdeen Canal Co., 2 Dow. 519; Bradley v. Comm’rs, 2 Humph. 428. See, as to this case, U. S. Eq. Dig. 67, art. 122.
    2. It is claimed, that the bills are multifarious.
    All of those who sue have a common interest to avoid the imposition of the proposed tax upon them. Story’s Eq. Pl., sec. 112; Mitford’s Pl. 408; Cooper v. Alden, Har. Ch.; Corning v. Lawrence, 6 Johns. Ch.; 4 Cow. 682; 2 Sim. & Stu. Ch.
    Under the act of February 28, 1846 (44 Gen. Laws, 82), and the act of March 23, 1850 (48 Local Laws, 277), a vote of the people was required before a subscription could be made, or even “ changed.” Smith’s Com. 879 ; Rex v. Lexdale et al., 1 Burr. 447; Church v. Cook, 2 Mass. 21.
    C. 31. Watson maintained that the case is not properly in this court for decision. This court acquired no jurisdiction by virtue of the act of March 24, 1851. Const. of Ohio, of 1802, art. 3, sec. 1; sec. 2, same art.
    To what class of cases does this motion belong ? Does it confer original jurisdiction? We think not. The court-of common pleas took original jurisdiction by bill, and two courts can not hold original jurisdiction of the same subject-matter. Is such jurisdiction appellate? We think not. It is an appeal from nothing in the common pleas. The motion in the Supreme Court vacates no order or decree in the common pleas. The acts authorizing the county of Crawford to subscribe to the capital stock of the railroad in question, are void, for the reason that they are in violation of the general, great, and essential principles of liberty and free government, recognized and established by the bill of rights.
    The right of acquiring, possessing, and protecting property and holding it inviolate, subservient only to the public welfare, on payment of compensation in money, is expressly secured. It follows that the grant of legislative power in the Constitution *of Ohio, must be in harmony with the great principles and objects of free government. The bill of rights thus becomes the basis on which the general assembly is authorized to exercise legislative power. To determine the extent of the legislative authority under our constitution, we are not confined to the letter of the constitution, but we may properly look to its declared principles and objects ; and a statute violating these, is as clearly void as one violating the letter of the constitution. Take, for example, the oft-repeated illustration of a law making a man a judge in his own case; such a law would contravene a declared principle only of our state government. The declaration of principles in our bill of rights, “that all men are born equally free and independent, and have certain natural, inherent, and inalienable rights, among which are the enjoying and defending life and liberty.—acquiring, possessing, and protecting property—and pursuing and obtaining happiness and safety,” would be subverted, so far. as it secures equality of right among citizens. It would not be true that two citizens enjoyed equal freedom, if one had power under the law to judge and determine their disputed rights. According to this declared principle, each citizen has an equal right with his fellows to have his claims submitted to an impartial tribunal; and any statutory violation of that right, would be void, for want of power in the general assembly to pass it.
    This is by no means a new rule of construction, as applied to constitutional law. It is distinctly recognized by Judge Brooke, in his dissenting opinion, in Godden v. Crump, 8 Leigh, 150; Rice v. Foster, 4 Harrington, 485; Parker v. The Commonwealth, 6 Barr, 507; Lexington v. McQuellin’s Heirs, 9 Dana, 513; Sutton’s Heirs v. The City of Louisville, 5 Dana, 28; The People v. Brooklyn, 6 Barb. (N. Y.) 215.
    We must be pardoned for our inability to see how a railroad in the hands of a private corporation, becomes a public improvement, calling into requisition the right of eminent domain and.*the power of taxation. It certainly seems to us like an entirely private affair, with nothing public about it.
    But to bring the cases in controversy within the range of proper constitutional taxation, they must be shown to present a case of equality of burden throughout the community.. Is this shown? The subscription, authorized in these cases, is by counties, towns, and townships; and to be valid, should be by the state. Bank U. S. v. Planters’ Bank of Ga., 9 Wheat. 907.
    The acts authorizing the subscription to the stock of railroads, in the county of Crawford, are void, because they delegate legislative powers to the county.
    The cases of the City of Bridgeport v. The Housatonic Railroad, 15. Conn.; Godden v. Crump, 8 Leigh; Nichol v. The Mayor of Nashville, 9 Humph.; and Talbot v. Dent, are particularly relied upon as authories to sustain these statutes.
    In reply to these cases, we say that they can not be relied upon by this court as binding authorities. They all relate to subscriptions made in pursuance of corporate powers confined to cities. The distinction between the legal powers of cities and those of counties and townships, is broad and unmistakable. Ang. & Ames on Corp. 10, 16; Dowat’s Civ. L. 457. The commissioners have legislative discretion in making selections of projects. A. fund is placed in their hands to purchase an improvement for the town of Bucyrus, at the expense of -the county.
    Henry Stanbery, M. Birchard,, and T.. W. Bartley, for respondents.
    Henry Stanbery, for respondents:
    I. As to jurisdiction to hear these motions'—special act of March 24, 1851. 49 Local L. 321. The terms original or appellate, cover all jurisdiction.
    *In this case the jurisdiction is original. It is to try and determine an original motion filed in Supreme Court upon copies of the papers, and to certify decision to common pleas.
    No question can bo made of the power to confer a special jurisdiction on Supreme Court—power often exercised, as in Hampson v. State; Seely v. State; tax appeals from decisions of auditor and attorney-general to court in bank.
    The decision on the motion binds the common pleas, and the cases then proceed in common pleas to final decree.
    II. We make objections :
    1. That the bill is multifarious. Armstrong v. Treasurer of Athens County, 10 Ohio, 235.
    2. That it does not make a case for the interference of a court of equity.
    The relief asked is to enjoin the levy of a tax upon all the taxable property of the county. The plaintiffs show.no special interest in tho subject—none that is not common to the whole body of tax-payers in the county.
    Tax is contingent—the injury contingent and slight.

    Bills are premature. Should wait until proceedings are had for .a sale.

    Remedy at law ample. McCoy v. Corporation of Chillicothe, 3 Ohio, 378; Le Roy v. Corporation of New York, 4 Johns. Ch. 352.
    The extreme cases—for equity jurisdiction against tax—are Osborn v. Bank U. S., 9 Wheat. 738; Burnet v. Cincinnati, 3 Ohio, 73; Culbertson v. Cincinnati, 16 Ohio, 577. All cases of irreparable injury, or affecting title to land.
    III. It is objected that the subscription was made without a popuular vote. None was required under the act of March 23, 1850. 48 Local L. 277. The first section of this act is:

      “ That the commissioners of Crawford county be and they are hereby authorized and required to change the subscription, heretofore authorized by a vote of the people of Crawford county to be made to the Ohio and Pennsylvania Bailroad, and to subscribe to
    the capital stock of any company or companies *which are now, or may hereafter be, incorporated to construct a railroad, commencing or terminating at any point in, or passing through or adjoining the town of Bucyrus, the county-seat of said county, the sum of $100,000.”
    It is said that this special act must be construed in connection with the general law passed February 28, 1846, which provides, that when county commissioners shall thereafter be authorized to subscribe to the capital stock of railroads, a popular vote shall be taken before the subscription is made.
    "We answer to this :
    1. That this special law is not simply a law to authorize a subscription, but to change a subscription heretofore authorized by a popular vote; and it does something more than merely authorize that, for it requires the act to be done.
    2. That the construction contended for would render the special act useless.
    It is claimed that the acts authorizing these subscriptions are void, because such subscriptions are not within the corporate purposes of a county. County purposes now embrace a great field of the usual subjects of legislation. The support of the po’or, the care of the insane, the subject of education, the public buildings, the subject of roads and highways—these are all legitimate county purposes.
    As incident to these corporate purposes, and to carry them out, a board of commissioners is provided for each county, representing the corporate body, with power to contract, to sue and be sued, and, within certain limits, to levy taxes. Hitherto the general assembly has been acknowledged as the proper authority to create and define the corporate purposes of a county.
    No one can question the power of the legislature to authorize a county to make a railroad, as well as a plank-road; but it is argued that the legislature can not authorize a county to aid an incorporated company in constructing the road. What is this but denying to the legislature the choice of means to carry out a lawful purpose ? If it be admitted that the construction *of railroads in a county is a legitimate county purpose, then, whether the authority is given to the county to construct the road entirely with its own funds, or to lend its funds to others in aid of its construction, can, in a constitutional point of view, make no difference. When it comes to that—a mere question of the mode by which a legitimate power is to be carried out—it ceases to be a judicial question, unless, indeed, there were a constitutional prohibition of the means used. Here there is nothing of the kind. The legislature are left at large—free from any restraint as to the particular mode by which the roads and highways in a county are to be constructed.
    It is said that county funds are public funds, and that they can not be used in matters of private concern. But is a railroad a mere private concern ? It may belong to individuals, so far as its management and profits are concerned, but it is essentially a public thing; and it is precisely on that ground, and no other, that a railroad company can appropriate private property for its track.. It is a public use.
    When this point was under discussion in the opening argument, a significant question was put from the bench. It was asked, whether the legislature could authorize a county to subscribe to a cotton factory within the county? The question, with due submission, is not to the point. The manufacture of cotton is not a public use, like a road. It is altogether a matter of private enterprise. But perhaps the question is best answered by putting another—and that is, can a cotton factory appropriate private property for the site of its works ? A question easily answered. Private property can not be taken for a cotton factory, nor can public property; but either may well be appropriated to a railroad, just because that is a public use—whether made by the public or-by an incorporated company.
    Our statutes are full of precedents in favor of this sort of legislation. One signal instance occurs to me in relation to the surplus revenue received from the United States. That was distributed by the state among the counties, by way of loan at ^interest, with authority to the counties to loan their proportion to any incorporated railroad or canal company, whose road or canal was-“within the county, or connected with it.” The property of the county was made subject to taxation, to secure the payment of the interest and the final payment of the principal.
    Not a decision has been found that sustains this objection.

      Godden v. Crump, 8 Leigh, 120; Bridgeport v. Housatonic Railroad, 15 Conn. 475; Nicol v. Nashville, 9 Humph. 252; Talbot v. Dent, 9 B. Mon. 526; Chesney v. Hooser, Ib. 330; Thompson v. Leland, 24 Wend. 65.
    M. Birchard, for respondents:
    I. The facts make no ease for chancery. 3 Ohio, 378 ; 16 Ohio, 577 ; 4 Johns. Ch. 352 ; 9 Johns. Ch. 738; 1 A. K. Marsh, 412, 555.
    II. The laws in question are constitutional.
    1. The power of assessing taxes by law, authorizing general and local taxation, is a necessary ingredient of government.
    2. It is a power to be exercised by the general assembly, subject to no control by the judiciary.
    3. The defining of the powers of counties is exclusively a matter ■of legislative jurisdiction.
    4. In construing the state and United States constitutions, this distinction is to be observed: By the first, all legislative power is vested which pertains to a sovereign state, and is not limited by the constitution of the state or United States. By the latter, only delegated powers may be exercised.
    5. Before a court is authorized to declare a law unconstitutional, it must be able to point directly to the clause of the constitution with which it conflicts, and it can not declare a law void upon any theoretical notion of a conflict with what the judges may suppose are elementary principles of government.
    6. The authority to subscribe stock, on condition that a majority
    *of a county vote for subscription, is not a delegation of the legislative power.
    7. It is not a taking of private property for public use, within the meaning of article 8, section 4, of the old constitution.
    8. The fact that a way may be authorized to be constructed by an incorporated company, in no sense affects its character as a public road demanded by the public wefare, and can not affect the -question of the'power to exercise the right of eminent domain.
    To sustain these positions, we cite—
    Rutherford’s Inst. 272 ; Calden v. Bull, 3 Dall. 400 ; Marsh. on Const. 521, 181, 409; McCulloch v. Maryland, 4 Wheat. 436; P. Bank v. Billings et al., 4 Pet. 565 ; Thomas v. Leland, 24 Wend. 69; 25 Wend. 282; 15 Conn. 496; Bennett v. Boggs, 1 Bald, 76; 9 B. Mon. 335, 520; 9 Dana, 521; Godden v. Crump, 8 Leigh, 154; People v. Wren, 4 Scam. 269 ; Same v. Reynolds, 5 Gilman, 15; 19 Ohio, 197, 418; 18 Ohio, 513; 3 Ohio, 378; 16 Ohio, 579; 4 Johns. Ch. 352; 9 Wheat. 738 ; 1 A. K. Marsh, 412, 555; 7 Ohio, 112, pt. 2; 11 Ohio, 393; 6 Ohio, 488; 4 Har. 495; 6 Barr ; 8 Barr; Nicol et al. v. Mayor of Nashville, 9 Humph, 252; 8, 10 and 11 Barr; Norwich v. Co. Comm’rs, 13 Pick. 60 ; Sawyer v. City of Alton, 3 Scam. 127; Vanderbilt v. Adams, 7 Cow. 349; Trustees of Paris v. Berry, 2 J. J. Marsh. 483; 3 Harr. 355; Aurora v. United States, 7 Cranch, 382; 3 Kent, 278; West. Law Jour. 1849-50, p. 218.
   Spalding, J.

The motion in this case has been considered in connection with one of a similar character reserved in the county of Wyandot, in the absence of the chief judge, who was called! home by reason of sickness in his family.

The decision is made by the three remaining members of the court, who are all clearly of the opinion that the motion to dissolve the injunction, allowed in the common pleas, is irregularly ^before this court, and that the same should be dismissed for want of jurisdiction.

The constitution of Ohio, in force at the time of the special enactment of March 24, 1851, provides, that the Supreme Court shall have original and appellate jurisdiction, both in common law and chancery, in such cases as shall be directed by law ; that the court of common pleas shall have common law and chancery jurisdiction in all such cases as shall be directed by law.

Section 1 of the act directing the mode of proceeding in chancery provides, that the court of common pleas shall have jurisdiction in all cases properly cognizable by a court of chancery, in which plain, adequate, and complete remedy can not be had at law.

Section 2 provides, that the Supreme Court shall have con-* current jurisdiction with the courts of common pleas, in all cases properly cognizable by a court of chancery, where the title to, or any contract in relation to land is in question, or the sum or matter in dispute exceeds one thousand dollars in value ; and appellate jurisdiction in all cases regularly brought before them from the chancery decisions of the court of common pleas.

Section 50 provides, that the Supreme Court, or any judge thereof, and the court of common pleas, or any president judge thereof, may allow injunctions in all cases, where it is usual for courts of equity to interfere by injunction, on petition filed, showing good cause in equity for such injunction, and verified by affidavit.

The bill in the case was regularly filed in the court, of common pleas of Crawford county; which court had undoubted jurisdiction, under our constitution and laws. That court, or the presi. dent judge thereof, allowed an injunction, “ on petition filed, show-! ing good cause in equity, and verified by affidavit.” The cause is still pending there, awaiting a trial upon its merits.

The common pleas having obtained jurisdiction, it follows, as a *necessary consequence, that the only jurisdiction which this court can take of the cause, under the constitution, is by appeal. Our original jurisdiction (if the amount involved is sufficient to give the two courts current jurisdiction) is gone, by reason of the complainantshaving elected to file their bill in the common pleas. The fifty-second section of the practice act provides, that any person may appeal to the Supreme Court for any final sentence or decree pronounced in any suit in chancery, in the court of common pleas, on giving notice, etc. The time, therefore, has not arrived for the exercise of our appellate jurisdiction in this case. We can not, and will not, interfere with the constitutional powers of the common pleas, which are, in their own proper sphere, as sacred as those that appertain to this tribunal. If, however, we may rightfully take cognizance of this motion, we are at a loss to see what possible good can result from it. Upon the supposition that we allow the motion to prevail for the dissolution of the injunction, there is nothing to prevent the court of common pleas from making another, and repeated orders, enjoining the party, so long as they have possession of the cause. The most casual observer will see that this would end in a clashing of jurisdiction, that would be simply ridiculous; and this might be the least of its evil consequences. We think the legislature improvidently passed the act allowing this motion to be filed in the Supreme Court while the cause was yet depending in the common pleas, and that they have failed to give to this court that sort of jurisdiction which is recognized and required by the constitution. The motion will therefore be dismissed, with costs.

In making known this determination of the court, I claim the right to say, that no one can regret more than myself that the case was not presented in such a shape as to enable us to decide the second point made by complainants’ counsel. Without committing this court, or any member thereof other than myself, to any particular construction of that sort of legislation which enables a majority in a county to vote the property of the minority into a joint-stock company, I can not forbear the ^remark, that it seems to me, not only a violation of the essential principles of liberty and free government, but in direct derogation of section 4, articles, of the late constitution of Ohio: “Privateproperty ought and shall over be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.” It is an important matter to know whether the security of the citizen and the safety of his property rest in the discretion of the legislature, or in the guaranty of the constitution.

Much of the curious speculation afloat, in regard to the absolutism of legislative power in these American states, is drawn from the notions formerly entertained of the British parliament. According to Lord Coke, “the power and jurisdiction of parliament is so transcendent and absolute, that it can not be confined, either for causes or persons, within any bounds. Of this high court,” he adds, “it may be truly said, si gntiquitatem species, est vetustissima; si dignitatem est honoratissima; si jurisdictionem, est capctcissima.” This is very far from being the case with our state legislatures. Wo all ought to know and feel, that in this country there is no absolute sovereignty except that which resides with the body of the people.

Legislative bodies are, at best, nothing more than limited agencies, constituted by the peoj)le for their own convenience, in carrying on the necessary functions of civil government. They have a right to tax the people for the ordinary expenses of the government. They havo a right, under the constitution, to take private property for public use, by paying a compensation in money to the owner. But they have no right to say themselves, much less to give to one class of the people the right to say, that another class shall be taxed on their property to support stage, steamboat, or railroad transportation.

It need not be denied that railroads are, in many instances, public improvements of great usefulness. But because they accommodate individuals and advance the public interest, it will not do to say that they are such a public use that private *property may be taken, without the consent of the owner, to construct them. If an incidental benefit, resulting to the community from the manner in which individuals, in pursuit of their own interestr use their property, will constitute a public use of it, it will be found extremely difficult to set bounds to the power of appropriating private property. As it is only on the plea that railroads are public highways—in other words, “a public use”—that the right is claimed to legislate a man’s money from his pocket "to make them,, whether he desire or not to take part in the work*

I have no uncommon sympathy for that class of our population who will suffer most by this internal improvement piracy ; but if the rights of minorities are not observed, it will not be long before the majorities will be in bondage. I look upon this thing of taking private property, or subjecting it to unusual burdens without the consent of the owner^as a great stride toward despotic power. The people of a county, by the vote of a majority, have no more right, under legislative sanction, to say that a single unwilling citizen shall mortgage his farm to build a railroad through their district, than they have to say he shall help support a line of stages running through the same territory.

It will not do to talk about the:, discretion of the legislature in this matter. The framers of our constitution took care to insert a clause, at the close of the last article, which is pregnant with meaning: To guard against the trangression of the high powers which we have delegated, we declare that all powers not hereby delegated remain with the people.” Amongst the most important of those powers remaining with the people, is, in my.apprehension,, the right of every citizen to manage his own private property in his own private way.

Motion dismissed for want of jurisdiction.

Hitchcock, C. J., prepared an opinion dissenting from some of the principles maintained above, for which see Appendix A.