text:
    Lessee of Christopher Neiswanger v. Eli W. Gwynne.
    The purchaser at a tax sale acquires no better title than, was held by the former owner at the time of sale.
    The plaintiff claimed under a patent, dated November 20, 1838, the defendant set up a deed under a tax sale, dated July 29,. 1831; held, no defense at law against the legal title of the patentee.
    But the purchaser is, under the occupying claimant law, entitled to his claim for improvements and taxes paid by him.
    This is ail action of ejectment, from Madison county, upon the following agreed statement of facts:
    “It is ^agreed that the patent for the land in controversy issued to Christopher Neiswanger, November 20, 1838, which is part of this case. That Eli W. Gwynne is in possession of the premises, claiming under a deed executed by P. McLene, auditor of Madison county (which said McLene was, and for many years prior had been auditor of said county), dated July 29,1831, to Lyne Starling, and by deed from said Lyne Starling, dated April 30,1832, to said Eli W. Gwynne for the land in controversy, both of which are made part of this case. .
    *“ If the court shall be of opinion that the plaintiff, by law, is entitled to recover, judgment shall be entered for him for one cent damages and costs; and, in that case, the defendant shall have, if the court shall be of opinion he is entitled to it, the benefit of the occupying claimant law. If the court shall be of opinion the defendant is entitled to recover, judgment shall be ontered for him, and costs.”
    The land was situated in the Yirginia Military District, and was listed and forfeited in the name of David Ross, original proprietor. The patent issued to Christopher Neiswanger, assignee of David Ross.
    Brush and Gilbert, for plaintiff:
    On the part of the plaintiff, it is insisted that the deed of the auditor, admitting that it is regularly and properly executed, can not be introduced to defeat the claim of the plaintiff at law.
    The defendant (if he possess anything by virtue of that deed) can take only' the title of the warrantee; and this, prior to the is suing of the patent, was a mere equity upon which an ejectment could not be sustained. 7 Ohio, 146, pt. 1.
    Neither the forfeiture to, nor the sale by, tho state could fortify the title. The owner could not forfeit a larger title than he had, and the state could not sell a larger title than that forfeited. Tho warrantee could not have sustained an ejectment prior to the issuing of the patent. The state could not have sustained an ejectment subsequent to the forfeiture, and it is not perceived by what operation the grantee of the state can now be enabled to exercise a right not possessed by his grantor. If the title of the defendant be not sufficient to sustain an ejectment, is it available as a defense against the legal title ? It is not, unless the title of the plaintiff, by virtue of the patent, inures to defendant; and this will hardly be insisted on in a court of law.
    It will, perhaps, be contended that this defect, if it exist at all, is cured by section 6 of the law of 1827, which provides that tho deed of the auditor shall convey a good and valid title and be roceived by all courts, etc. These ^provisions, however, are supposed to refer to “ a good and valid ” title to the title or estate of the owners at the time of forfeiture; and this, as before observed, was a mere equity.
    J. W. Andrews and G. Swan, for defendant:
    All lands are subject to taxation. 23 Ohio L. 60, sec. 1. And, by section 21 of the same act, the state has a lien for taxes on all real estate, etc., which shall not bo affected by sale or transfer. The land in controversy was entered on June 22, 1810, and the survey was returned and recorded on September 29, 1817. The patent emanated on November 20, 1838.
    Now it is admitted that, as between individuals who have no connection with the tax title, an ejectment could not lie upon any evidence of title, however perfect, short of the legal one. We, however, contend that an entry, and much more a survey, in the Yirginia military district, is such an appropriation of the land, at least while they remain unwilbdrawn, as subjects it to taxation and all the consequences of a legal title. Since the law of Congress of March 2,1807, Land Laws of Ohio, 134, surveyed lands are held by a title paramount to a patent obtained by an adversary.
    We are not prepared to maintain, nor is it necessary in this case to go so far, that, as against one in actual possession, the holder of the plat and certificate could maintain ejectment upon it; but it is clear, from principle and authority, that a patentee can not prevail against an actual possessor under a survey since the passage of the law above referred to. Lessee of McArthur’s Heirs v. Gallaher, 8 Ohio, 517.
    We should suppose there could bo no doubt but lands thus held were subject to taxation in this state, and that under our laws tho tax was a lion that every purchaser, subsequent, must take notice of. In fact it would be quite preposterous, and against all views of sound policy to hold that subsequent purchasers took the lands discharged from the tax. If this be law, the holder of lands in the Virginia military district only *needs to neglect or avoid calling for a patent and he may, through all time, avoid the payment of taxes, although the legal owner of the land, against all the world, under a survey.
    In fact, the law of January 29,1827, section 6, which was in force when this tract of land was sold for taxes, declares, in terms which admit of no doubt, that the “deed shall convey to the purchaser Or purchasers, his or their heirs or assignee or assignees, a good and valid title to the land so sold.” Counsel on the other side supposes his language means something widely different — the title of the owner. We certainly must demur to this amendment to Ihe law. As if the language quoted were not sufficiently strong to evince the legislator’s intent, the act declares, “and such deed shall be received in all the courts in this state as good evidence of title to the purchaser,” etc. We can not see how language can be more explicit to vest a legal title in the purchaser.
    It may be pretty fairly supposed that a court would not feel botind to construe a law very favorable to one attempting to evade the payment of taxes. There is a class of eases in which tho attempt to evade taxes in the shape of duties would be deemed a fraudulent act. 1 Maule & Sel. 593.
    The rule laid down in Spurgen v. McElvain, 6 Ohio, 464, is this: “If one intend to aid another in an illegal object he shall not be assisted by the law.” If the holder of a plat and certificate attempt to evade the payment of taxes by procuring a patent after the land has been sold, he deserves not the aid of tho law to enable him to obtain possession. If the plat and certificate title is gone by the tax-sale, the patent, so far as it regards the state and the purchaser, has no foundation, and ought to be hold void as against the deed of the state, which, by law, is to be good evidence of title. If the patent is paramount evidence of title, then the statutory evidence of title, instead of conveying to the purchaser a title to the land, is altogether nugatory.
    The case before the court is one very similar in principle to that of the Lessee of Jackson et al. v. Williams, 10 Ohio, 69. It was there held that a plat and certificate gave such an interest *in an estate as could be sold under an execution, and when a patent afterward emanated, it inured to the benefit of the purchaser.
    Certainly the deed of the state, declared to “ be a good and valid title to the land,” ought to have as much effect as that of an individual with a covenant of warranty; and when land has beem sold for taxes, and a patent afterward issues to the delinquent, it ought, on principles of public policy, to inure to the benefit of the purchaser, and estop the defaulter from setting up his naked, legal evidence against a fair and bona fide purchaser under the law.
    The opposing counsel can not deny but the defendant here has a clear, equitable title lo the land in controversy. He seeks to recover upon a naked, legal title against one which he says has only an equity. We deny this position; but suppose it was as the plaintiff claims, would it not prevent circuity of action and a great unnecessary expense to hold the patentee estopj>ed by his delinquencies, and suffering the land to be sold for taxes ? The action of ejectment is one within the complete control of the court, nor will it ever be suffered to be used for the purpose of oppression of aiding one who has been guilty of unfair or fraudulent conduct..
    So, when it appeared that the defendant held under the judgment debtor as tenant, it was held he was estopped to show title out of a debtor. Jackson v. Jones, 9 Conn. 182; Adams on Eject. 69, n. 1. The defendant, in ejectment brought by a purchaser, can not question the title. The sheriff stands as the attorney of the debtor. Cooper v. Gilbraith, 3 Wash. C. C. 546; Adams on Eject. 301, n. 1. Nor can one whose property has been sold by the sheriff defeat the purchaser in obtaining possession by connecting himself with one that has a good title. Tillinghast’s Adams on Eject. 301.
   Birchard, J.

The first question is, whether a purchaser at a tax-sale made under the act of January 9, 1827, admitting the same to be valid, acquires a better or different title than was possessed by the former owner. This question appears to have been settled in this court by the decision in *the case of the Lessee of Stuart et al. v. O. Parrish, 6 Ohio, 477, where it was held that the legal title of the patentee was not affected by a sale for taxes before the patent issued. Other authorities may be found to sustain this point, but as we are satisfied with this, it is not deemed necessary to cite them.

The plaintiff then has a legal title, and must prevail in this action. The defendant has, at best, but an equitable title. If the proceedings in the tax sale were regular, his remedy is a bill in equity. Until the tax title is brought before us, in such a manner as makes it material to the determination of a cause, we can not, with propriety, be called upon to determine i,ts validity.

The defendant is entitled to his claim for improvements and for the taxes legally assessed and paid by him. And the cause will be remanded to the county in order that further proceedings may be had. Judgment for plaintiff.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    David Easton et al. v. The Pennsylvania and Ohio Canal Company.
    Where parties agree that the abandonment of work to be done under a special contract shall extinguish the defendant’s liability, a per centum of the pay that has been kept back by the terms of the contract, to secure the completion of the work, can not be recovered after such abandonment has occurred.
    If it be the agreement, that A. may, in his discretion, declare the contract abandoned, the proper exercise of that discretion is a subject for inquiry and proof.
    Where such discretion has been properly exercised, the per centum retained is to be regarded as liquidated damages; otherwise, it may be recovered in assumpsit on the common counts for work and labor.
    This is a motion for a new trial from the county of Trumbull.
    The state of the case, and the points made, appear in the opinion of the court.
    *The motion was argued by P. R. Hitchcock and Wildeb, ior the plaintiffs, and by W. S. C. Otis, and Tod & Hodman for defendant.
   Wood, J.

The declaration contains the common counts in assumpsit, among which are those for work and labor performed, and materials furnished for the defendant.

The defendant plead the general issue, and gave notice of set-off. The cause was submitted to a jury in Trumbull county, at the September term of the Supreme Court, 1843, and a verdict found for tho plaintiffs for $787.

Tho defendant then filed a motion for a new trial, for tho reasons : 1. The verdict was against tho law. 2. That it was against the evidence. 3. That the damages were excessive. This motion was reserved for decision in bank.

On the trial tho counsel for tho plaintiffs, in order to maintain the issue on their part, gave evidence of labor performed, and materials furnished for the defendant, in the construction of the Ohio and Pennsylvania Canal, with the value of such labor and materials, and rested. ‘

The defendant then, in order to defeat the right of recovery thus established, gave in evidence to the jury, a certain special contract, under which all the work was done and materials were furnished, containing the following provisions:

“The payment to be made in tho following manner: The said engineer shall estimate the value of work done monthly, and upon his certificate being presented to the president, the amount thereof shall be paid, deducting therefrom fifteen per cent., if thought necessary by the president and engineer, to insure the completion of the work. And further, at the expiration of the stipulated period for the completion of this contract, if the whole.work shall be finished to the satisfaction of the president and engineer, said engineer shall estimate it, and within twenty days after presentation of his certificate-, under his hand, to the president, the balance which may remain due shall be paid.

“And the said Easton, Wandell, and Easton do further promiso and agree that they will, from time to time, during ^fche progress of the work, conform to such deviations from the present line of canal, and to such alteration in the form, slope, and dimem sions of the banks, towing paths, or any other part of the works, as the said engineer may direct. And it is mutually agreed that the decision of the said engineer shall be final and conclusive in any dispute which may arise between the said parties.

“It is further agreed between the parties, that, in ease the work upon this section shall not be commenced within ten days from this date; or if, at any subsequent period, the said Easton, Wan-doll, and Easton should, in the opinion of the president or engineer, refuse or neglect to prosecute this contract, 'with a force proportioned to the quantity of work to be done, and the period within which it is to be completed, or shall subcontract or rolet said section, or any part thereof, without the approbation of the president, as aforesaid, or shall not give personal superintendence to the work, the said president or engineer shall have power to determine that this contract has been abandoned, and such determination shall put an end to this contract, and exonerate said company from every obligation thence arising, and the president may immediately proceed to dispose thereof in the same manner as if it had never existed.

“And the said Easton, Wandell, and Easton do promise and agree to finish and deliver up this contract on or before the first day of September, in the year of our Lord one thousand eight hundred and thirty-seven.”

On the trial it was proved that said contract was declared abandoned, by the principal engineer, while the work was progressing, lor the reason, in the engineer’s opinion, that the plaintiffs wore not prosecuting the work vyibh a sufficient force to insure its cornpletion within the time specified in the contract. () The defendant also proved to the court and jury, that full estimates had been made of the work done, and materials furnished, by the plaintiffs, and full payments made, with the exception of fifteen per cent, on the amount of *such estimates, which had been retained by the defendant, to insure the completion ot' the work

It was in proof that the work was relet by the defendant after the contract was declared abandoned, at a price exceeding thirty per cent, above that stipulated for its performance in the contract w.ith the plaintiffs, owing to the rise of labor and provisions.

From this statement of the case, the inquiry arises, principally, on the first reason assigned in fhe motion for a new trial: Is the verdict sustained by the law of the case? It will be seen the object of the suit must have been the recovery of the fifteen per cent, retained by the defendant on the amount of the estimates, to insure the completion of the work.' AH but this had been fully paid, and the verdict must have been for this sum alone.

The contract may be supposed to be severe upon the plaintiffs. They were, however, by no means forced to execute. It was voluntary. By its terms, éxtonsive control over the work is conferred upon the defendant, and great confidence reposed in the honest and faithful exercise of his discretion. If the defendant has violated neither its letter nor its spirit, it is difficult to see what reason the plaintiffs have for complaint. We sit here to enforce the contracts made by others, but we have no authority to impose upon them obligations to which they have never assented.

The plaintiffs were to be paid monthly, on estimates made by the engineer. It has been done. Fifteen per cent, was to be retained to insure the completion of the work. The defendant kept back this amount. If the contract was declared abandoned, the determination of the president or engineer is conclusive. The contract is at. an end, and the defendant exonerated from every obligation thence arising Dy express agreement.

It is insisted that, when the whole work is completed, the fifteen per cent..may be recovered by the plaintiffs. Had they finished the work the position would be correct, but if the contract' is abandoned, relet, and others complete the *work, the amount retained as security is,'in its nature, liquidated damages. If it were not so intended, there would be no security in the retention of this amount. The plaintiffs need only lie by until others completed their contract, and then receive the full balance of their labor, without forfeiture or diminution for the delays, vexations, and additional expenses to which the defendant was subjected. The president or engineer is the umpire between the parties. His determination ends the contract and exempts the company from its obligations. The agreements of the parties are the law by which their rights are to be determined, and I am extremely doubtful, at least, whether any court can legitimately interfere and upset their arrangements, where an honest discretion' has been exercised, where neither fraud nor circumvention has intervened.

I am instructed by my brethren, however, to say, as the opinion of the court, that, in this class of cases, the subject is open to inquiry whether the contractors had done any act, or omitted the performance of any duty, which, within the terms of the contract between the parties, would justify the .president or engineer in declaring it abandoned; and if no such act had, in fact, been done, nor such duty omitted, the honest exercise of the discretion conferred, to abandon the contract, ought not to shield the defendant from the payment of the per centum so retained..

On the trial of the case at bar, the testimony was ample to show omissions of duty to justify the abandonment. It was in proof that the force employed was too small; the work was not prosecuted with energy; Easton had loft the work to the care of others; and the implements necessary to be used in its construction were, in his absence, sold upon execution.

We are, therefore, of the opinion, under the state of the proof, the law will not sustain the verdict, and that a new trial should be granted. New trial granted. Cause remanded.

■ ^Birchard, J., being a stockholder in the canal company, did not sit in this case.

      The contract given in evidence by tbe defendant was executed in the following form:
      “Articles of agreement entered into this day, November 26, 1836, by and between tbe Pennsylvania and Ohio Canal Company, by their authorized agents, of tho one part, and David Easton, William 0. Wandell, and Emory Easton, of the other part, witnesseth,” etc.
      [Here follow.the terms of the contract.]
      “ In witness whereof, tbe said parties have hereunto set their hands and seals, the day and year first above mentioned.
      “William Bobebsou, P. [Seal.]
      William Bayen, [Seal.]
      John W. Seely, [Seal.]
      David Easton, [Seal.]
      Wm. C. Wandell, [Seal.]
      Emoby Easton, [Seal.] ”

      The following indorsement appeared upon the contract:
      “The foregoing contract declared abandoned, January 10, 1838, the contractors having refused to prosecute the work with a sufficient force to insure its completion in the time specified.
      “ S. Dodge,
      “P. Engineer of P. & 0. Canal.”


author: *Read, J-.

text:
    The Farmers’ Bank of Canton v. Madison Raynolds.
    An agreement with the principal to give time, without a good consideration, does not discharge a surety.
    To discharge a surety, the agreement must be binding, and suspend the creditor’s right to sue.
    A mere delay to pursue remedies, or omission to enforce liens, does not operate to discharge the surety; to work his discharge, there must be some positive act of relinquishing securities or release of liens.
    This is a motion for a new trial, from Stark county.
    The action was assumpsit, on a note discounted by the plaintiffs) for $2,793.10, made by one Alanson Pcnfiold, payable at *the Commercial Bank of Lake Erie, to the order of defendant, and by him indorsed to the plaintiffs. Plea, non assumpsit.

    On the trial of this cause to the jury upon the circuit, the facts proved and admitted were as follows:
    “The note in the plaintiff’s declaration mentioned, fell due at the Commercial Bank of Lake Erie, on August 19, 1836; some time previous to which it was offered for discount, and was discounted by the plaintiff at the request of the defendant, and for his benefit; and the defendant then indorsed said note to the plaintiff, and received the proceeds thereof. That when said note fell due, it was duly protested for non-payment, of which the defendant had due notice. That suit was commenced on said note against Alanson Pcnfiold, the maker thereof, at the next term of the court of common pleas of Cuyahoga county, after the same fell due; and that such proceedings were had in said suit until final judgment, in the Supremo Court of said Cuyahoga county, held August 12, 1837; and that such proceedings were had on said judgment after its rendition, as are stated in the transcript of the docket entries hereto annexed, and certified by A. Clark, clerk of said court of common pleas.
    This transcript shows a judgment at the August term, 1837, of the Supreme Court of Cuyahoga county, in favor of the plaintiff, against Penfield, for $3,124.04, and costs and proceeds.
    “ Mandate to common pleas, and execution ordered, October term, 1837; fi. fa. issued November 23, 1837, to sheriff, and returned March 18, 1838, by order of plaintiff’s attorney, indorsed, ‘Received on this execution, $1,043.16. Deposit fees, $20.40. S. S. Handerson, Sheriff.’ ”
    “ The defendant in the above case produced the plaintiff’s attorney’s receipts; one for $200, and the other for $100, to apply on said judgment; one dated May 1, and the other August 16, 1838. ’ A. Clark, Pep. Glerk.”

    “ The defendant produced a receipt, dated November 22, 1838, for $100.
    “ The defendant produced a receipt, dated February 2, 1839, for $100.
    *“ The defendant produced a receipt, dated January 31, 1839, for $100.
    “ The defendant produced a receipt, dated October 11, 1838, for $300/
    “ Al. fi. fa. issued September 1, 1838, and returned by order of plaintiff’s attorney; S. S. Handerson, sheriff; foes, 40 cents. Plu. fi. fa., June 10, 1839, and returned made, $3. No goods. Not levied on goods for want of time; foes, 66 cents. M. Miller, deputy sheriff. Second plu. fi. fa., September 17, 1839, returned, levied on lot No. 1, St. Clair street, appraised at $3,100, not sold; foes, $6.65. M. Miller, deputj^ sheriff. Ven. ex., January 20, 1840, and returned sold to Commercial Bank of Lake Erie, for $2,067; fees, $4.15. M. Miller, deputy sheriff. May term, 1840, sale approved and deed ordered. Third plu. fi. fa-., January 11, 1842. Costs, on motion, for deed, 66 cents.
    “It was further proved that, in March, 1838, a letter was received from said Penfield, by John Harris, president of said Bank of Canton, and its attorney in said suit against Penfield, requesting that the execution, which had then been issued against him, might be stayed over the then next term of said court of common pleas, which was held Ajrril 17, 1838, on condition that he, Pen-field, would pay $1,000, to the credit of said Bank of Canton, in said Commercial Bank of Lake Erie, to be applied on said judgment. That said Harris exhibited said letter to the directors of said Bank of Canton, and was directed by them to accept said proposition. That said Harris accordingly wrote to said Penfield, stating that, on his paying $1,000, as proposed, and showing that loiter to the sheriff, he, the sheriff, would stay the execution as requested; and that the said $1,000 was paid, and said execution •was returned in manner stated in said transcript, March 18, 1838, and that this arrangement was made without the knowledge of the defendant. Also, that the sum of $40 was paid by said Pen-field to said bank, May 1, 1838, in addition to the several sums of $100, $100, $100, and $300, stated as paid in said transcript.
    *“ It was further proved that, at the time of the return of execution, in March, 1838, said Penfiold had sufficient real estate, subject to levy, to satisfy said judgment; that said judgment was a lien on said land, prior to all other liens thereon, and so continued until some time in July, 1839, when said Commercial Bank obtained a judgment against Penfield, in said court of common pleas, which judgment was decided to have a prior lion on said land, in the case of the Farmers’ Bank of Canton v. Commercial Bank of Lake Erie, 10 Ohio, 71.
    “It was further proved that the defendant was a stockholder of said Bank of Canton at the time of the discount of said note, and has continued a stockholder over since, and that he became a director thereof in January, 1839, and continued to be a director until the same was placed in the hands'of receivers, March 12, 1842; and that, in November, 1838, ho, the defendant, was informed by the said John Harris that the judgment against Penfiold was considered perfectly secure; and said Harris stated, on his examination, that ho might, and probably did, so inform the defendant at other times; and that the defendant has, since the discount of said note, been a resident of the town of Canton, where said bank is located, and is a brother-in-law of said John Harris, president and attorney thereof, as aforesaid. And, further, that the indulgence from time to time granted to said Penfiold, in manner aforesaid, was intended to facilitate the collection of said judgment against Penfield, the payment of which, it was supposed, would be suspended by a levy on real estate, which, during the years 1838 and 1839, could seldom bo sold on execution in Cuyahoga county, where the lands of Penfield were situated; and that such indulgence was considered, by the said attorney of the bank and its officers, to be judicious and proper, and that they acted in the premises in good faith. It was also proved that said Penfield, after a judgment obtained by said Commercial Bank, in July, 1839, became-totally insolvent, and has so continued over since, and that said judgment against him, in favor of said Bank if Canton, is uncollected and worthless.

      *“And upon the facts aforesaid, the court charged the jury [88 that, by law, the defendant was discharged from liability as indorser of said note, by the acts, neglect, and laches of the plaintiff) in respect to the collection of said judgment against said Penfield, and that the plaintiff was not entitled to rocovor; whereupon the jury found a verdict for the defendant.
    “And now the plaintiff, insisting that, in charging the jury as aforesaid, the court mistook the law, pray the court to set aside said verdict, and grant the plaintiff a new trial in this cause.”
    Griswold & Grant, for plaintiff, in support of motion:
    In order to give the claim of the defendant to be discharged any sort of foundation, it is necessary that he be considered a surety for Penfield, the signer of the note. We shall contend, in the course of our argument, that he does not stand in that relation, and is not entitled to its privileges, but shall first endeavor to satisfy the court that, admitting him to be a surety, in tho strictest sense of the term, there is nothing in the facts of this case to exonerate him from liability.
    In the first place, it will scarcely be seriously argued that mere delay, or neglect to proceed against the principal, will discharge the surety. The cases to the contrary are so numerous and so uniform, that such an argument can scarcely have the semblance of plausibility. “As long as the creditor remains passive, all his remedies remain.” Per Lord Eldon, in English v. Darby, 2 B. & P. 61. In this very case the Supreme Court charged that mere delay would not constitute a defense; and though their opinion was given provisionally on the main point, the agreement for delay, yet we did not understand them to intimate any doubt as to this. But if there be any doubt, we think it will vanish by consulting the following cases: King v. Baldwin, 2 Johns. Ch. 557; Rutledge v. Greenwood, 2 Desau. 389; Burn v. Poag, Ib. 604; Buchanan v. Bordley, 4 Har. & McHen. 41; Hampton v. Levy, 1 McCord’s Ch. 112; Norris v. Crumley, 2 Rand. 323, etc., the details of which we omit, supposing the point to bo too well ^settled to require particular notice. We will only add that nearly every case cited hereafter is more or less to the same effect.
    But it may be urged that in this case the plaintiff by delaying, lost a lien upon land; that is, by reason of neglecting to levy, a subsequent judgment creditor secured a prior lien. Such wo admit to be the fact, but we believe no case can be found of this nature, where an equivalent fact did not exist. Wherever a surety has made a defense, or asked to be relieved, on the ground that the creditor has delayed proceedings against the principal debtor, whether with or without agreement, he has relied upon the fact that if the ci’cditor had proceeded seasonably, he might have obtained satisfaction from the principal. The cases already referred to wore of this description, and the greater part of those cited hereafter present the same feature. In one case, McKinney v. Waller, 1 Leigh, 434, indulgence was given to the principal just as the sheriff was about to levy upon'goods, and in consequence of such indulgence the principal removed his goods beyond the reach of process; and yet the surety was held not to be discharged even in equity, and though there was an express promise of indulgence, but for no specified time. This case is of no importance with respect to the giving of time, but is a strong one to show that forbearance will not avail the surety.
    The rule seems to be well settled, and to be this: If the creditor having once taken the property of the principal debtor, whether by legal process or otherwise, afterward voluntarily releases it, or gives it up, the surety is discharged, but the creditor may refuse to take, or avoid taking, any property within his reach ; and if afterward lost, destroyed, or placed beyond his reach, the surety remains liable. Many cases make this distinction in plain terms, and in still more is it clearly implied. Sneed v. White, 3 J. J. Marsh. 526; Jones et al. v. Bullock, 3 Bibb, 468; Bullitt’s Exe’r v. Winston, 1 Munf. 269. “ The creditor, in order to discharge the surety, must part with something which he has in his possession, and not ^merely with something which he might obtain.” 13 Petersd. Abr. 778, n., citing Fell. 153.
    Indeed, any other rule would render the contract of suretyship very inadequate and unsatisfactory, for it might be a great hardship to compel the creditor to take unsalable property, like the land in the case at bar, and thus postpone indefinitely the payment of his debt. The right of the surety to compel the creditor at law to resort to the property of the principal at all, is purely statutory, so far as it exists.
    Had the bank, in the judgment against Penfield, levied upon his land and afterward voluntarily released it, or even without a levy, had, by a valid instrument, voluntarily released the lien upon it, the case presented would be totally different, and we confess that our confidence in it would be seriously impaired. Such acts would probably amount to active interference to the prejudice of the surety, to which allusion is frequently made. But numerous cases show that the creditor may bo so far active as to arrest proceedings, in any stage, without discharging the surety.
    Is, then, the alleged agreement in the case at bar such as would discharge the defendant, supposing him to be a mere surety for Penñeid ?
    If it be such an agreement, it must possess the following requisites, as we will proceed to show:
    1. It must be such an agreement as legally ties up the hands of the creditor, and would be a legal barrier against his proceeding against the principal debtor during the time stipulated; in other words, it must be binding or obligatory upon the creditor.
    2. It must prejudice the rights of the surety, which rights are either to be substituted for the creditor, or to proceed against the principal in his own name, in case he pays the debt.
    3. In order to have such effect in either case, it must be founded apon an adequate consideration recognized by law.
    We first invite attention to the language of Chief Justice Gibbs, in Orme v. Young, Holt’s N. P. 84, cited in note to Fulton v. Matthews, 15 Johns. 433. “ What is forbearance and giving time? It is an agreement which ties the hands of the creditor; *it is the act'of the creditor depriving himself of the power of suing by something obligatory, which prevents the surety from coming into a court of equity for relief, because the creditor having tied his own hands, the surety can not release them.”
    In another case, English v. Darley, 2 B. & P. 61, Lord Eldon says “that the holder, having given time, can not demand pay'ment of the surety, because if he could, the surety could at once proceed against the principal, which would be a violation, or at least an evasion, of the holder’s agreement.” But if the principal could not enforce the agreement against the creditor, he can not complain that he could not enforce it against the surety.
    In Samuel v. Howorth, Meriv. 288, in chancery (cited 13 Peterd. Abr. 778, n.), the court say’: “ The surety, when time is given, is held to be discharged, because the creditor, by giving time to tho principal, puts it out of the power of the surety to consider whether ho will have recourse to his remedy against the principal or not, and because he can not have the same remedy against the principal, as he would have had under the original contract.”
    The case of Sneed v. White, 3 J. J. Marsh. 526, which arose like the defense in the case at bar, on an alleged agreement to stayexecution against the principal debtor, we regard as a very important one, not only as it recognizes the distinction to which wo have referred, between active interference and mere neglect, but as deciding, explicitly, all the points we are now seeking to establish. “ Forbearance,” say the court, “ or positive indulgence by the obligee, will not release a surety; but any settled agreement, or active interference by the obligee, whereby the surety may be injured or suspended, in the assertion of his equitable right to force the obligee to sue the principal, or deprived of his right to pay tho debt and occupy the attitude, in equity, of the obligee, will release the surety.” “ The equitable right of the surety is to come into a court of equity and demand to sue in the name of the creditor; but if the creditor has given time to the debtor, the surety can not sue him.” S. P., 5 Wend. 85; 6 Ib. 610.
    *“If, when the creditor intends to forbear, he should apprise the principal debtor of that intention, or, in order to relieve him from anxiety, should give him an assurance of .indulgence., without binding himself by any valid contract to forbear, it is fan' from being a necessary consequence of any established principle of equity, or known, dictate of reason, that the surety should be entitled to a release.” Id.
    In this case it is said that if the creditor releases,property levied upon by execution, the surety will be discharged, because this is active interference to the prejudice of the surety. Although the court intended to settle principles, as we have stated, no final decree was made, because the court held that the proper parties were not before him.
    The case of Hunter’s Adm’r v. Jett, 4 Rand. 104, was in equity, and the surety prayed relief because tho creditor had stayed execution after judgment. Per curiam; “ A surety will not be discharged by indulgence granted by the creditor, unless such indulgence ties up tho hands of the creditor from pursuing the debtor at law.” “ The true ground or principle on which a surety is relieved in such cases, of giving time, is, that tho creditor has injured the surety by impairing his rights and remedies.” The relief prayed for was refused.
    The case of Alcock v. Hill, 4 Leigh, 622, was also in equity, and the staying of execution after judgment against the principal debtor, was the ground on which the surety asked felief.
    The opinion of the court is somewhat elaborate, and Judge Tucker, in laying down the rule by which sureties may be discharged, uses the following language: “If, indeed, a creditor engages, for a good consideration, to give indulgence, so as to tie up his hands from proceeding at any moment when ho may be re quired by the surety to do so, the surety is absolved. The con stituents of this principle are: 1. A consideration; for, without it, a promise to indulge is not binding. 2. A promise or agreement to indulge,” etc. It was held that the surety was not absolved, but on several grounds, of which the want of consideration for tbo alleged promise to forbear was one, it being doubtful whether such promise was made in consideration *of the delivery of the slave to be sold, or for any valid consideration whatever.
    Another important case is that of Peay v. Poston, 10 Yer. 111, in equity. The creditor had obtained separate judgments against the principal and surety. The principal confessed judgment at the return term, by reason of a promise that the creditor would stay execution against him for six months. The surety sought to enjoin the judgment against himself for this cause, and his counsel, admitting that a consideration was necessary to give any validity or force to the promise to forbear, contended that the confession of judgment was a sufficient consideration. The court do not decide that point, but say that, inasmuch as by the laws of Tennessee respecting sureties, the surety might, at any time, have paid the debt and proceeded against the principal, he is not discharged; thus determining that the creditor must not only tie his own hands, but also those of the surety,.else the latter continues liable.
    All the American cases cited above were in chancery, where sureties are at least as much favored as at law, and arose on alleged agreements to stay execution after judgment, so that they are strictly applicable. We might enlarge indefinitely the list of authorities which sustain the same principles. All the cases agree that mere delay or neglect, whatever its consequence may be to the surety, will not discharge him; and that if such delay be in consequence of an express and definite promise, that circumstance will not change the principle, unless such promise is founded on a consideration which would support any other contract. Nearly all the cases, also, distinctly declare, that the creditor must do some positive act by which he loses his hold of property, or which would obstruct the surety in some of his remedies against the principal, in case he should pay the debt, else he is not discharged; and several of them are explicit and pointed to that effect. Other cases establish the' same principle in different language. Thus, in Neimcewicz v. Ghan, 3 Paige’s Ch. 650, the chancellor says, that in order to discharge a surety, the creditor *must, “ by his voluntary act, disable himself from ceding to the surety his right of action, or other remedy against the principal debtor or his estate.” The same case distinctly recognizes the necessity of a valid consideration to render any agreement for delay of any effect.
    We will next refer to a few cases which differ from the foregoing in this, that they arise on agreements to forbear before judgment. In Reynolds v. Ward, 5 Wend. 501, at law, the court decide that “an agreement without consideration, by a.creditor, enlarging the time of payment of a note, does not discharge a surety to such note,” and that a promise to pay interest for such enlarged time, does not constitute such sufficient consideration. The case was decided on demurrer, and the plea alleged “that, when the note became due, the principal was solvent, and able and ready to pay the note, and would have paid it but for the agreement to extend the time.” The court say, “ to discharge the surety, it is necessary that there should be some agreement by which the plaintiff’s right to prosecute or enforce the fulfilment of his contract is suspended,” and affirm that no agreement can have that effect, unless founded on a legal consideration. In Fulton v. Matthews, 15 Johns. 433, the same question was decided in the same manner.
    In Braman v. Howk, 1 Blackford, 392, it is held, that in Indiana, giving time to the principal, even for a good consideration, does not discharge a surety, because the laws of that state point out how a surety may be discharged. The case is referred to chiefly because, in a note annexed, we suppose, by the reporter, all the principles we are contending for are recognized, and numerous authorities cited in their support.

      The case of McLemore v. Powell, 12 Wheat. 554, is too pointed to pass entirely unnoticed. The defendant was an accommodation indorser, or mere surety, and the plaintiff had made a definite agreement with the principal to extend the time of payment for a specified time, which was acted upon; yet, being made without consideration, the defendant was held liable. These points were presented and decided, unembarrassed with any other questions.
    *We deem it unnecessary to take up the time of the court with additional cases of this sort, though they are very numerous. Many to which we have not alluded will be found in 2 Bar. & Har. Eq. Dig. 401, 408; Tit., Prin. and Surety, sec. 2.
    Let us next inquire if the alleged agreement in the case at bar was founded upon any legal consideration. Wo strongly suspect, indeed, that it was never understood or intended, by either of the parties, to be an agreement binding in law, or anything more than an honorary pledge; but we will not dwell on that point. If there was any consideration, it was the payment of $1,000, part of the judgment on which indulgence was to be given. But no principle is bettor settled than that payment of part of a debt which is due is not a legal consideration for any contract. It is so laid down in the elementary books, and appears to have been nettled in the infancy of the English law. In the modern case of Peabody v. Knox, 12 Johns. 426, it is also distinctly decided. But we are not forced to rely upon the general principle, for we find it applied to cases exactly similar to that before the court. Among these we refer to Hall et al. v. Constant, 2 Hall’s N. Y. C. 185, where this point is distinctly made and decided — a case which also appears to us to decide in our favor every point made in the present case, and differs from it only in the agreement for delay being made before suit, which we suppose to be of no importance, and, in the feature believed to be important, that the defendant was an accommodation indorser, or mere surety. A part of the debt was paid, and the creditor, by reason of such payment, agreed to extend the time of paying the residue, and extended it accordingly ; yet as part payment was held to be no valid or sufficient consideration, the defendant was decided to be liable.
    We have remarked that there are some reported cases in which giving time has been held.to discharge a surety or indorser, though the agreement to give time does not appear to have been founded on any good consideration. The English cases of this description are, we believe, all referred to in *Chit. on Bills, 10 Am. ed. 408, n. m. The note cites six cases in all; in three of which, however, a consideration, viz: a new security, distinctly appears, leaving only the three following, in which the want of a consideration can be presumed: Anderson v. George, Trin. Term, 1757, cor. Ld. Mans.; Tindall v. Brown, 1 Term, 179; Clark v. Devlin, 3 B. & P. 363. In all these cases, however, the court base their decisions on the fact of giving time, the necessity of a consideration not being adverted to.
    With reference to these decisions, Chit. on Bills, 10 Am. ed. 413 (the passage is not in the older editions), remarks as follows: “ It seems that, in the older cases, any absolute and distinct agreement to give time, was considered as discharging the drawer and indorsers, without any distinction whether such agreement was •founded on a sufficient consideration to bind the party making it [here the note m, page 408, citing the cases just mentioned, is referred to]; but of late a distinction has been taken, and a new doctrine sprung up and been acted upon, namely, that even an express agreement not to sue, made after giving notice of nonpayment, and without taking any new security, being nudum, \pactum, will not discharge the other parties.”
    None of the cases now under consideration seem to have been very carefully considered. The same may be said of two cases in Ohio, Beaver v. Butler, Wright, 367; Reddish’s Ex’rs v. Pentheuse, Id. 538, where giving time was held to discharge a surety without making any mention of the question of consideration.
    We come, finally, to a decision in our own highest court, Jenkins v. Clarkson, 7 Ohio, pt. 1, 72, which appears to us to settle every position which we have been laboring to establish by authorities elsewhere. The defendant was admitted to be a mere surety; and the creditor, totally disregarding the earnest solicitations of the surety, had delayed until the principal had become utterly insolvent, while, if the creditor had proceeded in time, the debt might have been collected of the principal. Such was the ease made by the demurrer; and *it was also proved that a portion of the delay was in consequence of an agreement, made by reason of a payment of $150 on the debt; but it did not appear that the agreement was to forbear for any specified period. The case proves : 1. That mere delay, however disastrous to the surety, will not discharge him. 2. That an agreement for delay, in order to discharge the surety, must be a valid one, and founded on a good consideration, and must tie up the hands of both creditor and surety; and 3. That the payment of a part of th.e debt is not a sufficient consideration. All these points are distinctly made and decided in the case, although another point is made material, namely, that the agreement was for no specified time.
    It should be recollected that, in the case now before the court, the lien on the land was not lost by reason of any delay under the pretended agreement which is set up. This agreement was made about March 18, 1838, and extended only to the 17th of the next month, a period of thirty days, or, at farthest, only till the end of the term of the court which commenced on that day. Yet the lien continued good until July, 1839, fifteen months afterward, and six months after the defendant became a director of the bank. It was then lost b^- reason of a judgment obtained against Penfield by the Commercial Bank of Lake Erie, which was decided, after litigation, to have the preference.
    Harris and Starkweather, for defendant.
    If a creditor gives time to the principal debtor without the knowledge or assent of the security, such security is discharged,, especially where the time given operates in fact as an injury to the security.
    This is a doctrine from the civil law, and is as old as the best days of Rome. 1 Story’s Eq. Jur. 320. It now forms a part of the common law of the land, and can be taken advantage of as well at law as in equity, especially as in this case, when the claim has not passed into judgment. *Chitty on Bills 444, and case there cited; 2 Bos. & Pul. 60; 3 Bos. & Pul. 363, see notes; 8 East, 577; Metcalf and Perk, Dig 1, 472; 5 Ohio, 214; 7 Ohio 72; Wright 538. But it is urged that there was no valid contract for delay in this case, as there was no consideration paid by Penfield, and that the payment of $1,000 as part of the claim, was not such a consideration as to make the contract binding, and was therefore no valid contract.
    It is admitted that by most modern decisions it is held that a contract for delay, in order to discharge the surety, must be for a period certain, and for a valid consideration. As to the period it is held in some of the cases, that if the right to prosecute is delayed,
      “ oven for a moment,” it discharges the security, and none attempt to fix any length of time, so that the period is definite.
    As to the consideration it may be answered, that the payment of a part of a debt, at a particular place whore the defendant in the judgment was not obliged to pay it, may have been a valuable consideration to the plaintiff, and was in this case all the consideration which the plaintiff could have taken, as this court has determined in the ease of the Rank of Chillicothe v. Swayne et al., that no consideration for delay of payment can bo taken by a bank without discharging the debt. In this case there was a contract in writing, as the agreed case shows that all was done by letter-writing, founded on the only consideration that could have been accepted by the plaintiff in this case (was not a desire to benefit Penfield by delay, a good consideration, and sufficient to sustain a contract between him and the plaintiff?); and for a clearly defined period, the end of the next term of the common ple&s court of Cuyahoga county, which was fixed by law at the time.
    But this contract was fully executed on both sides. Both parties had complied with the terms of it, and we submit that when a contract had been made and executed on both sides, fully complied with by both parties, it does not lie in the mouth of either party to say that no valid contract existed for the want of a valid consideration. Beaver v. Butler and Hall, Wright 367.
    *But we think this case may bo decided on grounds entirely distinct from the question of giving time, whether with or without consideration, whether executed or not executed.
    The principle alluded to is, that when the creditor has collateral security in any form, either by judgment, lien, mortgage, levy of execution on personal property, or in any form whatever, whether taken with or without the knowledge of the surety, he is bound so to conduct himself as not to injure or destroy that collateral security, and if he fails so to do, either by acting, or neglecting to act, the surety is discharged to the extent of the collateral security so lost by the acts or negligence of the principal debtor, which in this case is the entire claim. For the general doctrine see Story’s Equity, 320 et seq., whore it is distinctly laid down that any act done, or negligence suffered by the creditor to the injury of the surety, the surety is thereby discharged.
    This doctrine is clearly illustrated and fully sustained by many cases, both in England and in the United States, to a few of which we shall direct the attention of the court.
    In 2 Swanst. 185, it.was determined that when an execution was levied on the goods of the principal debtor and withdrawn by the creditor without the knowledge or assent of the surety, the surety was discharged. The language of the judge in delivering the opinion of the court, is: “I think it clear that where execution was levied on the goods of the principal debtor, and the creditor afterward withdraws the execution, he discharges the surety both at law and in equity, though the creditor might have remained passive if he chose.”
    This doctrine is fully sustained in 8 Serg. & Rawle, 458, where it was decided by the court, that if a fieri facias issued and was levied on the goods of the principal debtor and the execution is stayed by the creditor without consulting the surety, the surety is thereby discharged : the language of the court is, “ That when the creditor has the means of satisfaction in his own hands, and chooses not to retain it, but suffers It to pass from his hands, the surety can not be called on.”
    *The same doctrine is laid in 13 Serg. & Rawle, 158. That . was a case where a landlord executed a lease and took security for its fulfilment, and afterward neglected to distrain the goods of the tenant as he had a right to do, and might have done, delaying his distress until the goods had been disposed of by the tenant, that the surety was discharged. The court quote the preceding case and fully recognize the doctrine there held.
    In 16 Serg. & Rawle, 252, is a case which fully confirms both the last cited cases, and overrules a distinction attempted to bo drawn, by which it sought to take it out of the reason of the previous eases.
    A case is reported in 7 Leigh, 244, which is strongly in point. It was held in that case, that when an execution was issued and delivered to the sheriff, though not levied, (the delivery of a ft. fa. to the sheriff creates a lien in Virginia, on the personal property of the defendant,) and the creditor ordered the execution returned, the security was discharged ; and in that ease the judgment was against the principal and surety both, the court; holding that the relation of principal and surety continued after judgment. The court say that the principle applies as well to securities by contract as by operation of law; and they fully recognize tho doctrine that when a creditor has, by operation of law or by con tract, obtained a lion or collateral security of the principal debtor, either before or after judgment, he is bound sacredly to preserve that lien or collateral security; and if by either his acts or his negligence to act, loses such collateral security, the surety is discharged to the extent of that lien or collateral security thus lost, which undoubtedly covers the whole ground of this case.
    The case in 2 Ohio, 303, though not directly in point, or analogous to tho present case, yet shows with what vigilance this court guards the rights of sureties. That was a case whore tho surety had given notice under our statute for the relief of securities, and the creditor on receiving such notice, instead of suing the principal debtor and security, had sued the surety alone, and the court held that, although the creditor had *pursued the strict letter of the law, he had not complied with its spirit, and the surety was discharged. The case reported in 4 Johns. Ch. 123, is also strongly in point.
    We ask, docs not the case at bar, rim on all fours with tho case from Swanston, and the several cases from Sergeant and Rawle, and is it not strongly analogous to the ease cited from 4 Johnson’s Chancery Reports ? In the case at bar, the creditor had ample security by the lien ho hold on the real estate of Penfield. That lien was lost by the acts and negligence of the plaintiff, and this without any act or fault of the surety, and he is therefore discharged.
    The lien created by a judgment while it remains unimpaired, is equivalent for all the purposes of security to a levy on personal goods, or a mortgage on land. Tho plaintiff undertook to control and did control the business, and while thus controlling the matter, so conducted himself that the lien, which was an ample security for the debt, was lost: not only is the debt lost, but while tho fatal period was running which destroyed the lien, the defendant was lulled into security by the plaintiff.
    We have examined many of the authorities cited by tho counsel for plaintiff, but find none that materially change the principle of tho cases we have cited. They are mostly cases where the court have decided that a consideration is necessary, and that a definite time should be agreed on, both of which we have endeavored to show is comprised in this ease. That a definite period was fixed is beyond all doubt. That the payment of $1,000, at a place where the defendant and Penfield were not obliged to pay it, is a consideration, if any consideration could have boen taken by the bank, as the law allows no other consideration. And will it be pretended that a bank can make no valid contract for forbearance in the payment of a debt? If it can, what would be a considereration to support such a contract ?
    In answer to the distinction taken by the counsel on the other side, between an accommodation indorser and other sureties, %e will refer the court to the case of McLemore v. Powell, 12 Wheat. 554, cited by the plaintiff's counsel for other purposes. In that case, the court declare that there is no difference between an indorser or a security in any other form, without ever hinting at the distinction between an accommodation indorser or any other kind of an indorser, which is attempted to be urged by the counsel.
    In addition to the authorities already cited, attention is called to the following:
    In Baird v. Rice, 1 Call. 21, it was decided that the execution being levied on property and restored to the principal debtor by order of the creditor on payment of part of the money, and a further day given for the balance, was a total discharge of the surety, although judgment was rendered against the surety. Hill v. Bull, Gilmer, 151, giving time alone, without consideration when it was executed, released the surety. Reese v. Barrington, 2 Ves., Jr., 540. Barrington, creditor, sues the principal debtor, .but, without the privity of the surety, agrees to stay the execution, the surety is discharged. Varnum, Fuller & Co. v. Milford, 2 McLean, 74, giving time with a promise to pay the debt “ out of a certain judgment they were to obtain the following September,” was held to discharge the surety; all the authorities seem to treat an agreement executed as needing no consideration beyond mutual performance.
    Griswold and Grant, in reply.
    The counsel for the defendant, assuming him to be a surety, have cited some cases to show that he is discharged by reason of the neglect of the bank to levy on Penfield’s land, until the lien upon it was superseded by a younger judgment. We do not think the cases cited establish the principle contended for. Those in in Swanston, 8 Sergeant & Rawle, and 16 Sergeant & Rawle are all cases whore the creditor having levied upon the goods of the principal debtor, afterward, by some positive *and voluntary act, released his lien acquired by such levy. We have already intimated that had the plaintiff in this case done the like, we should strongly suspect that the defendant, his claim of surety-ship being allowed, would be discharged.
    But the case of Lichtenhaler v. Thompson, 13 Serg. & Rawle, 158, is somewhat peculiar, and perhaps demands special notice. The defendant was surety for the payment of rent by a tenant to his landlord. The landlord had a lien on the goods of his tenant on the premises, created by law, and during the subsistence of this lien the goods were levied upon by an execution. The surety thereupon gave the landlord notice to avail himself of his lien, which he refused to do until it was lost, and the surety was held discharged. Unless this case can be reconciled with the other authorities by means of this latter fact and the other peculiar circumstances, wo have only to say it is in conflict with a current of decisions, which is, so far as we can find, marred by no other irregularity.
    The case of Chichester v. Mason, 7 Leigh, 244, even if apparently in favor of the defendant, will be found on examination to be far otherwise. The county court had decreed in favor of the surety, and its decree came before the court of appeals for reversal. Two of the judges, Carr and Brockenbrough, were in favor of reversal; the two others, Cabell and Brooke, were in favor of affirmance; but a reversal requiring a majority, the decree was affirmed, But the judges were all agreed in the correctness of the principle for which we contend, but were divided as to its application to the facts of the case. The position of the two who hold the surety discharged is thus defined by Cabell, J.: “1 put the discharge in this case on the ground that the creditor had, by putting his execution into the hands of the sheriff, acquired a lien on all the unincumbered goods of the principal debtor for the payment of his execution, and that by the arrangement made, he voluntarily and fraudulently parted with that lien without the knowledge or consent of the surety.” But the present case is not at all analogous in its facts, as the bank acquired no lien by issuing execution, and lost none by its return.
   *Read, J-.

The question of law in this case is, whether the agreement made, or the loss of the judgment lien by neglect to levy, discharges the defendant from his liability as indorsor.

A change of contract, or the extension of the time of payment on good consideration, or the relinquishment of securities, or the release of liens, or any positive act which suspends the creditor’s right to sue or the sureties’ right to pay, will work his discharge unless done by his consent. But an agreement to give further time for the payment of a debt due, which is not binding for want of consideration, or a mere delay to pursue remedies, or an omission to enforce liens, will not release him.

Theso principles are supported by authorities too numerous to be cited; I refer, therefore, only to our own reports: Bank of Steubenville v. Adm’rs of Carroll, 5 Ohio, 214; Same v. Hoge et al., 6 Ohio, 17; Jenkins v. Clarkson, 7 Ohio, 72.

In this case the agreement to give time was without valid consideration; the loss of the lien was a mere omission to act; and not for a moment, since the debt fell due, has the right of the creditor or the surety been suspended. A new trial must therefore be granted.

New trial granted; cause remanded.


author: Lane, C. J.

text:
    Trustees of Springfield Township v. Ellison Demott.
    Where money is expended by the trustees of a township, in a county having a poor-house, for the support, as a pauper, of a wife abandoned by her husband, the moneys may bo recovered from him, in a suit by the trustees, without her removal to the county poor-house.
    This is a writ of error to the court of common pleas of Lucas county.
    An action of assumpsit was brought by the trustees of Springfield township against Demott, for the amount ^expended for the support of his wife. The bill of exceptions shows that Demott had deserted his wife; that she had her settlement in Springfield ; that she required assistance for her support; that the trustees gave notice of her suffering condition to the defendant, who refused all aid, although possessing sufficient ability; that she received the necessaries for her support as as a pauper, she being too unwell to bo removed, with safety to the county poorhouse, and requiring immediate help. This suit is brought to recover the money expended for this purpose. The common pleas gave a nonsuit upon this proof, expressing, for reasons in the bill of exceptions, that the plaintiff being a corporation — a creature of the law — and limited to the exercise of express powers only, could recover no moneys except those expended after the strictest compliance with the statute.
    Young and Waite, for plaintiff, cited:
    ' Swan’s Stat. 635, sects. 5, 6, 7, 8; Ib. 640, see. 9; Township of Hanover v. Turner, 14 Mass. 227; Crittenden v. Wilson, 5 Cow. 165; Alna v. Plumer, 4 Greenleaf, 258; School District v. Wood, 13 Mass. 192.
    John Fitch, for defendant, cited :
    Swan’s Stat. 949; Angel and Ames on Corporations, 16; Fourth School District v. Wood, 13 Mass. 192; Swan’s Stat. 635; Ib. 611; 2 Strange, 1122; Clancy’s Rights of Married Women, 28.
   Lane, C. J.

It is a new element of limitation to corporate powers, and a novel inference deduced from the decision of the case of the Bank of Chillicothe v. Swayne, 8 Ohio, 257, that the trustees of townships can not administer to the wants of paupers, even to save life, except through the forms which regulate their ordinary official acts.

*But we are relieved from the necessity of adjudicating most of the points in this case by following previous decisions. In Howard v. Whetstone Township, 10 Ohio, 365, this court determined that a husband is liable for money expended for the support of his wife, as a pauper, under the common counts of assumpsit.

The only point in this case not covered by that decision, is, whether the trustees of townships in counties having a poor-house, can recover expenditures made by themselves, by suit.

Section 5 of the act for the relief of the poor, Swan’s Stat. 635, requires that the trustees of a township in a county having a poorhouse, finding a person ought to be relieved at public expense, shall issue an order for the directors of the poor-house to receive him.

The act establishing poor-houses, Swan’s Stat. 640, directs tho support of such pauper in the poor-house, and section 8 provides for the payment of the expenses of the removal, and of the exjjenses immediately preceding; these are borne by the county.

But we can not regard the removal to the county poor-house as a condition precedent to a recovery from the person upon whom the burden of support ought to fall. The pauper may recover, or may die before a removal becomes practicable. Indeed, it appears to us that if the township trustees chose to waive its right to indemnity from the county, and look to those who ought equitably and ultimately to sustain the burden, there occurs to us no valid objection to the claim. It is rather advantageous than injurious to the debtor, because the amount is not enhanced by intermediate expenses. Judgment reversed.


author: Birchard, J.

text:
    *Zion Rains, Balaam Thompson, and William McDaniel v. William Scott.
    A court of equity will not relieve against a judgment, on the ground that it has been taken for a greater rate of interest than six per cent., where the defense might have been made at law.
    Nor will equity aid, unless the debtor tender the amount justly due for principal and legal interest, or show a sufficient reason for not making such tender.
    Former decisions of this court respecting legal interest are in this case examined and explained.
    This is a bill in chancery, from Highland county.
    The bill sets forth that, for the sum of forty dollars, and a note of sixty dollars, complainants executed to respondent a note for $125, payable in 341 days, with a power of attorney to confess judgment thereon. That on January 25, 1840, and soon after said note fell due, complainants being in straitened circumstances, and Scott threatening to take a judgment, they raised thirty dollars and paid it to Scott, who consented that two of complainants should give a note to the third for $118.75, payable December 25, 1840, and that he should indorse it to Scott, which was done, and the first note was surrendered and canceled. That when the second note fell due, under like circumstances as attended the discharge of the first, complainants gave a new note for $150.56, payable December 25, 1841, upon which suit was commenced in the court of common pleas, and judgment by default was rendered at the July term, a.d., 1842, for the sum of $150.56 debt, $6.10 damages, and $11.68 costs of suit. That there was no other consideration for the note than the said sum of forty dollars, and the note of sixty dollars, but that the entire balance was made up of usurious interest. That complainant has issued executions, and is about to levy, etc. That they could not make defense to the suit at law, because the facts were not susceptible of proof. The bill avers a tender of the sum actually due, and avers that the same is in court. Prays a discovery, an injunction, and for relief.
    The defendant demurs.
    ^William Scott, in support of demurrer:
    At the time of filing the bill and demurrer, and for a long timo subsequent, there was no pretense of a tender of money, nor was there-any statament in the bill in regard to a tender. That statement was made afterward, and without authority. Tet the bill, as it now stands, is regarded as so defective, that the demurrer ought to be sustained.
    It is defective because:
    1. It does not show what amount of money was tendered and deposited in court.
    This is material, for if the demurrer is overruled, the. court ought in justice at once to give the money deposited to the defendant; but this they can not do, because the bill does not show, nor is there any evidence in the case to show the amount. Besides, although the court would not probably require the same strictness as in a plea of tender at law, yet, a tender of the amount less than the sum which the complainants admit to be due, would be regarded as no tender. The statement in the bill on this subject is, therefore, thought to be too vague to avail the complainants. Rogers v. Rathbun, 1 Johns. Ch. 367; Tupper v. Powell, Ib. 439.
    2. The bill does not show that the complainants had not complete and adequate remedy at law. On this point the following authorities are referred to:
    Usury is a good defense at law, and can not be set up in chancery, when it might have been made in a court of law. Morgan v. England, Wright, 112.

      A court of equity will not relieve against a judgment at law, when there was a defense equally available at law. 2 Story, 178. So relief will not be granted when complainant has been guilty of laches, or might have procured the necessary proof at law as by filing a bill of discovery, etc. Ib. 179.
    A court of equity will not entertain a bill of discovery to assist a suit in another court if the latter is competent to grant the same relief. 2 Story’s Eq. 710; Galston v. Hough, 1 Johns. Ch. 547.
    *The complainants should have made a defense at law, and during the pendency of that action, filed their bill of discovery against the plaintiff at law, fully setting forth the nature of their defense, that the aid of a court of chancery was material, and that the matters upon which they asked a discovery, rested in the knowledge of the plaintiff at law alone, and were susceptible of no other proof. McIntire v. Mancius et al., 3 Johns. Ch. 45; 1 Ib. 543; 2 Marsh. 323; Brown v. Swan, 10 Pet. 502.
    After verdict and judgment at law without defense, complainants are not entitled to relief by discovery. Duncan v. Lyon, 3 Johns. Ch. 357; Thompson v. Berry and Van Buren, 3 Johns. Ch. 395; Brown v. Swan, 10 Pet. 502.
    Chancery will not relieve against a judgment at law, unless the defendant was ignorant of the fact in question pending the suit, or it could not be received as a defense. 1 Johns. Ch. 219, 98; 4 Ib. 510; 6 Ib. 87.
    To show that complainants are too late in asking for discovery or relief, and that the demurrer in this cause ought to be sustained, the court are particularly referred to the case of Duncan v. Lyon, 3 Johns. Ch. 357; Brown v. Swan, 10 Pet. 502; Story’s Eq. 422, 429.
    The complainants can not allege that they were taken by surprise in the case at law, because they acknowledged service of the writ when the suit at law was commenced, and there was a period of four months between the service and final judgment against the»complainants, without their taking any steps for their defense.
    The complainants had a remedy at law, if anywhere, which they have neglected, and a court of chancery can not, without departing from well-settled rules, take jurisdiction of their case.
    Jambs H. Thompson, for complainants:
    As the transcript does not show when the amendment to the original bill was made, or when the demurrer was filed, the court must presume that the demurrer was intended to meet complainants’ *whole case case, and to deny that there is any equity presented by the bill as amended, though it alleges that the money has been tendered, and is now in court.
    Upon the assumption that the court will hold the demurrer as intended to meet the whole case, I do not regard .the objection made by the defendant, that the amount tendered and brought into court is not specified, as availing anything in the present attitude of the pleadings, because the demurrer must admit the statement made in the bill as' true, and as by calculation the amount due can be ascertained, the objection can only fail on final hearing, when, if the fact be untrue, and it be found that a sufficient amount has not been tendered, the court would refuse relief, and then only would the objection avail.
    This case then, considered in the true light in which the pleadings present it, brings up but one question, to wit, Whether, after judgment at law on a usurious contract before satisfaction, a court of equity will grant relief against the payment of the usury, when the borrower offers to do equity by tendering the principal with legal interest?
    The case is not analogous in its principles to the case in Shelton v. Gill, 11 Ohio, 417, because the money due has been tendered and is brought into court, and the usury has not been paid, and there is no reported decision touching the question, except the one in Brockway v. Clark, 6 Ohio, 51, where relief was granted under somewhat similar circumstances without a tender. But as I suppose the court on the circuit regarded the proposition as an open question, I present it without any reference to the above cases.
    At law, according to the more recent authorities, the complainants bad a remedy, but they show sufficient i*easons why they did not avail themselves of it by the averment that they had no proof of the facts other than that which was to be found in the disclosure of the defendant, and which could only be obtained from him by a bill of discovery. Now it is true, under some circumstances, this bill of discovery might be used to aid a defense at law, but as a court of chancery *takes jurisdiction for one purpose, is not this in that class of cases where such court, having the case in possession, will afford the remedy concurrently with the courts of law? The jurisdiction of the court of chaneery is founded, in cases like this, on the assumption that the contract by construction is fraudulent, and as it grants relief in cases of fraud, the only proposition necessary to be maintained, is to show in what manner the fraud has been perpetrated. In all cases of this kind, the courts have decided that a usurious contract like the present is against public policy, and in violation of the statutes forbidding the taking of usury, and on this ground, from time immemorial, relief has been granted. 1 Story’s Eq. 300, and authorities there referred to.
    There is another reason, still more urgent on the enlightened judgment of the chancellor, requiring his interposition, and which excludes all doubt as to his power, to wit: that the contract in this case is against all conscience, and is grossly unreasonable and oppressive. 1 Story’s Eq. 324.
    On this last ground I rest the case, perfectly satisfied that on the statement of facts, the court can not hesitate. The law says, the lender shall have six per centum per annum. How is this case?
    January 12, 1839, money and note advanced, $100.
    January 20, 1840, paid in cash...........^........................ $ 30 00
    Executed a note for................................................... 118 75
    148 75
    Usury in this note, $42.75.
    On March 10, 1841, note executed for........................... $150 56
    Due on March 10, 1841, about..................................... 113 00
    37 56
    Add amount paid January 20,1840.............................. 30 00
    Usury of note sued on............................................... 67 56
    Intdrest on this note in judgment about........................ 5 00
    Total usury.............................................. $72 56
    Can such percentage be tolerated?
    ^McDowell and Collins submitted an argument on the same side.
    Scott, for defendant in reply:
    The counsel for the complainants in their brief, quote the cases of Brockway v. Clark, 6 Ohio, 45, and Shelton v. Gill, 11 Ohio, 418, to show-that a court of chancery will take jurisdiction of such cases as the one now before the court.

      In Brockway v. Clark, the bill was filed in aid of an action at law then ponding. Had the bill in this case been filed during the pendency of the action at law, and contained the proper averments, we do not deny but that the court might have granted relief.
    In Shelton v. Gill, the bill was dismissed: 1. Because no tender of the money acknowledged to be due, was alleged to have been made (which is in fact the case here). 2. Because the interest alleged to be usurious had been paid, and could not recovered back. And, 3. Because the comjfiainant had adequate remedy at law. And the court held either of these grounds to have been sufficient to defeat the bill.
    The first and third grounds are appli cabio to the present case, and ought to defeat, instead of sustaining the bill. Some of the material statements in the complainants’ bill are untrue, and should the court overrule the demurrer, the defendant will ask leave to answer.
   Birchard, J.

Two points are relied upon in support of the demurrer:

1. That the averment of tender is insufficient.

2. That defense should have been made at law.

As to the first objection it may be remarked, that in this respect the bill is vague and indefinite. Admitting that it is not necessary in a bill in chancery to sot forth a tender of money with the same precision that is required in a special plea at law, it is still necessary to state in substance the amount ^admitted to be due, so that the party may, if he desires, at once receive it, and if the precise amount duo is unknown, the bill should state that .fact, and aver the tender of a sum certain, charging it to be sufficient to cover any amount that, upon equitable principles, could be found against him. An averment of a tender of the amount admitted to be due is indispensable, in all bills of this description. It is held by all the elementary writers to be a general rule, that whatever is essential to the rights of the complainant, and is necessarily within his knowledge, should be alleged positively, and with precision. The same degree of certainty necessary in many casos of pleading at common law is not required. It is sufficient if the material facts are plainly and succinctly alleged with the necessary circumstances of time, place, manner, and other incidents. Mitford’s Equity Pleadings, 41.

The pleader in this case has not ventured to aver that he tendered any specific sum of money, at what time his tender was made, the manner of making it, or in what it was made. The bill says it was all that was due. He should have informed us how much he actually tendered, the time when the tender was made, and the manner of making it, and have averred that no more was due, leaving to the court to judge whether he could sustain his averment by proof, and if sustained, whether the ten-, der was sufficient.

We come then to the second point. The law is well settled, that where a party has had an opportunity of making his defense at law, and has neglected to do so, chancery affords no relief.

The allegation of the bill, upon which chancery jurisdiction is sought to bo given is, “ that the various matters of fraud and error alleged by your orators, are not apparent upon the record of said judgment, so as to be corrected at law, the whole matter having been so managed by the said Scott, as to deprive your orators of all remedy, without discovery from himself.” The bill does not anywhere inform us what was the peculiar management here alluded to, which prevented the facts of the case from appearing of record. We'are left in *the dark upon this point. Was there any specific act of fraud, which deprived the complainants of the right to appear, defend, and place upon the record, in the form of a bill of exceptions, the facts of the case? Nothing of the kind is averred; and certainly nothing of the kind can be inferred, when we consider the last clause of this vory vague statement, where the summing of the whole matter is, that a defense was not made for the want of a discovery of the facts from Scott. But the bill offers no reason, and states no matter of fraud which tends to excuse the neglect to file a bill for discovery in aid of the defense at law. The case is left, then, in this position. A bill is filed for discovery, substantially in aid of a defense at law, but after the suit at law is determined, and after it is too late to make any use of the discovery if allowed. This must be the true character of this bill, if, as we shall show, all the relief now sought could have been had, by making the proper defense to that suit. A court of equity will not entertain a bill for relief when a party, being sued on usurious notes at law, suffers judgment to be taken against him, without making a defense, or applying in due season for a discovery. 3 Johns. Ch. 395; 2 Story’s Eq. 178, 179.

We will next consider whether, upon the facts stated, a defense at law could have been made. The case at law, as shown by the bill, was debt upon a promissory note for $150.56, which was without any other consideration than the sum of $70, and interest thereon at the rate of six per centum per annum, from the date of the original loan. It was a clear ease of suit upon a note, as to which there was a partial failure of consideration. Since the passage of the act of 1834 (Swan’s Stat. 685), such a defense is allowed. Prior to the passage of that act, equity alone could afford relief. The observance of this change in the law will tend much to aid careless reasoners in reconciling, what they now suppose, conflicting decisions of this court upon questions of excessive interest.

The statute fixing the rate of interest is not a statute against usury, technically so called. It does not avoid the contract, for anything except interest beyond six per centum per annum. *It has been held, therefore, that on a contract to pay more than six per cent., the principal, with six por cent., maybe recovered. Lafayette Society v. Lewis, 7 Ohio, 80, pt. 1. That illegal interest once paid, can not be recovered back again. Shelton v. Gill, 11 Ohio, 417; Commercial Bank of Cincinnati v. Reed, Ib. 498; Spalding v. Bank of Muskingum, 12 Ohio, 544.

That when a note is renewed from time to time, and illegal interest added in, the jury may, in a suit upon the last note, examine the whole transaction and give the lender only the sum loaned, with six per cent, interest thereon. Baggs v. Loudenback, 12 Ohio, 153.

A slight examination will show that these decisions are consistent with each other, with the statute, and with reason. Interest once paid, can not be recovered back, fii’St, because if paid to a cox’poration prohibited from taking it, both parties are in pari delicto, Spalding v. Bank of Muskingum, 12 Ohio, 544; or, second, because if the contract be between natux’al persons, it has been paid on an executed contract which the parties were not forbidden to make, and changes the right of property. Illegal interest unpaid, whether sued for in an oi'iginal, a renewed, or sepai’ate note or bond, can not be l’ecovered, because the act of 1824 declares that six per cent, shall be recovered, and no more; ” and the act of 1834 allows the defense to be made at law.

Counsel have relied much upon the case of Brockway v. Clark, 6 Ohio, 51, and perhaps it deserves some notice in this connection. The bill in that case was filed while suits upon the notes were pending in the court of common pleas, on appeals from the judgments of a justice of the peace.

It was tried before the passage of the act of 1834, and at a time when a partial failure of the consideration of a note could not bo established at law. It is not a case in point.

The main ground taken by complainants’ counsel in support of the bill, and upon which they profess to rely with entire confidence is, that “ the contract in this case is against all conscience, and is grossly oppressive.” Far be it from us to apologize *for conduct like this. Yet in this case, as not unfrequently occurs in practice, the complainants have, by their own neglect, placed themselves in such a situation that relief can not be extended to them without adopting a rule contrary to well-settled law, and that would work much wrong if established.

The injunction must be dissolved, and decree entered under the statute for the amount of the judgment at law, with interest and penalty. Decree accordingly.


author: Read, J. Birchard, J.,

text:
    Deborah W. Silliman v. Samuel Cummins and David Cummins.
    A married woman can only be divested, during coverture, of her interest in ber husband's estate, in the manner pointed out by the statute.
    "Where the statute in force, when a deed was executed by a married woman, required that the contents of the deed should be made known to her, she is not barred of dower unless it appear, from the magistrate’s certificate, that such requisition was complied with.
    The curative acts, to render valid such imperfect acknowledgments, are themselves void, and the doctrine of Good v. Zercher, 12 Ohio, 365, is affirmed.
    The defect can not be cured, so as to bar dower, by showing dehors the deod that the woman did know its contents at the time of its execution, and intended to pass her dower.

      This is a petition for dower from Muskingum county.
    The complainant seeks to be endowed of certain lands of which her late husband, Wyllis Silliman, was seizod during coverture.
    The defendants set up against her claim a deed executed by Wyllis Silliman and the complainant, as his wife, having the following acknowledgment:
    “ State of Ohio, Muskingum county, ss.

    “ Before mo, the subscriber, a justice of the peace in and for said county, personally appeared Wyllis Silliman and Deborah W. Silliman, his wife, the within-named grantors,'and acknowledged ^the within to be their voluntary act and deed, for the purposes therein mentioned; and the said Deborah W., being ex amined separate and apart from her said husband, did acknowledge that she executed the same of her own free will and accord, with out coercion or compulsion from her said husband, and that she also freely and voluntarily relinquished all right and title of dower in and to the premises. Witness my hand and seal, this April 8, 1815.
    “ Christian Spangler, [l. s.]

      11 Justice of the Peace.”

    The defendants allege that at the time of the execution and acknowledgment of said deed, the complainant was above the ago of twenty-one years; that-the contents of the deed were fully known to her, and that she intended, by such execution and acknowledgment, to convey and bar all her claim or right of dower in the land therein described. And they require her, under oath, to answer the following interrogatories, touching such knowledge and intention :

      Interrogatories to Deborah W. Silliman, the Complainant.

    Interrogatory 1. At the time you signed the deed, of which exhibit A in defendants’ answer is a copy, did you know the contents of the said deed, or of any part thereof, and, if so, of which part; or did you know the object and purposo of the said deed? State fully and particularly all the circumstances of your signing the said deed, and particularly whether the contents or object and purpose of said deed were concealed from or untruly stated to you, and if so, by whom, and where and when such misstatements were made.
    Interrogatory 2. At the time you acknowledged the deed, of which exhibit A in defendants’ answer is a copy, did you know the contents of said deed, or of any part thereof, and if so, which part? or did you know the object or purpose of said deed? State fully and particularly all the circumstances of your acknowledging the said deed, and particularly whether the contents or object and purpose of the said deed were concealed or untruly stated to you, and if so, by whom, and where and when such misstatements were made.
    *In ter rogatory 3. If, at the time you signed or acknowledged the said deed, you did not know tho contents nor the purpose or the object of said deed, what did you then believe to be the contents or object and purpose of the said deed, and what was your purpose in signing and acknowledging the said deed ?
    The petitioner demurred to.these interrogatories.
    G-. N. Cummins', for petitioner.
    R. Stillwell, for defendant.
    The reporter was furnished with no arguments.
   Read, J.

It is the settled law in Ohio that the interest of a married woman in real estate can only be transferred in the mode, and by full compliance with the statutory requisitions, prescribed to be pursued and be performed to authorize her to convey. Connell v. Connell, 6 Ohio, 358; Brown v. Faran, 3 Ohio, 140; Carr v. Williams, 10 Ohio, 305; Lessee of Good v. Zercher, 12 Ohio, 364; Meddock v. Williams, 12 Ohio, 386.

In the case of Good v. Zercher, this court decided that the curative act of March 9, 1835, could not give effect to the deed of s\ feme covert, void, as to her, for want of a compliance with the requisitions of the statute, and was, to that extent, unconstitutional and void. We reassert the principles of that case to be of binding constitutional obligation.

Tho-ceriificate of acknowledgment, therefore, not showing that she was made acquainted with the contents of the deed, forms no bar to her recovery.

The remaining question is, whether a court of equity will aid the defective execution so as to bar her claim, upon its being shown dehors the deed that she was acquainted with its contents, and acknowledged the instrument with intent to pass her dower.

A married woman has no legal existence or power to transfer her interest in real estate, except through the statutory *channel. The mode of executing the conveyance confers upon her the power to convey. Where the power exists independent of its mode of execution, and has been defectively executed, it is not a case of want of power, but of defective execution, which a court of equity will aid. But where the power and mode of execution are inseparable, the power resulting from, the mode, and that mode has not been pursued, it is not a case of defective execution, but a want of power, which a court of equity can not aid. Hence, when a married woman attempts to convoy, and lacks power from not pursuing the proscribed mode, courts of equity will not relieve, because to amend the mode is to create the power.

Curative statutes must conform to the same principles, and have constitutional validity only within the same limits. A statute may carry into effect a defective execution of a power, by converting an equitable into a legal estate, but can not give validity to that which is void, for want of power.

Neither the legislature nor courts can create powers, because the creation of a power is the assumption of dominion and control over the disposition of property, without the consent of the owner. Legislative enactments, like courts of equity, can only aid the defective execution of power by persons having capacity to convey, but can not operate where, as in the case of married women, the power itself depends upon a prescribed mode that has not been pursued. Whatever, therefore, the complainant may have intended to do, or whatever knowledge she may have possessed, the jtatutory provisions, from whence alone her power to act was derived, not having been complied with, the act itself is void. So that neither her intentions, nor knowledge shown dehors the deed, can give it validity so as to divest her of any rights, or constitute any equitable bar to her dower.

Demurrer sustained, and d'ecree for complainant.

Birchard, J.,

dissented. For reasons of dissont, soo opinion in Good v. Zercher, 12 Ohio, 364.