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Lessee of Hannel v. Smith.

1846.

Another error assigned, is, that the Court decided that the In Bank.

Dec. Term, sale was void, because made on the 21st day, and not on the second Monday of December.

The record does not show that any such decision was made, nor is it within the recollection of the Judges who held the Court, that any such decision was made. The point was argued, but the actual decision of the Court, so far as the law is concerned, was based upon the opinion, that the description of the land upon the duplicate was vague, uncertain, indefinite and defective; and that the county auditor had no authority to make the sale. Upon the point raised by the third error assigned, we therefore express no opinion.

The last error assigned, is, that the Court rendered judgment for the defendant, when it should have been for the plaintiff. There could be no error in this. The Court having found the issue joined between the parties for the defendant, it followed, as a matter of course, that judgment should be rendered in his favor, unless some motion had been interposed, which there was not, for a new trial, or in arrest of judgment.

The record in this case shows that the list of forfeited lands in Hamilton county, contained no less than 1200 tracts, lots and parcels of land, which were sold in 1843; and this circumstance has been urged upon the consideration of the Court, as a reason why the authority to sell should not be very closely scrutinized. It is matter of regret, it is true, that in consequence of the neglect or mistake of a public officer, these sales should all be defective. But it must be remembered, that the purchasers are not without remedy. The law has secured to them a lien upon the land, until their purchase money is restored to them. All they can possibly lose, is the profits of a favorable bargain.

Counsel for plaintiff supposes that the 4th section of the act of March 2d, 1846, for the protection of purchasers at tax and judicial sales, has a bearing upon this case. The 4th section of that act provides, that whenever lands have been, or shall thereafter be sold for taxes, the purchaser may recover posses

Shroll v. Klinker.

In Bank. sion by action of forcible detainer, and that the evidence of the Dec. Term, title of the purchaser or his assignee to recover, shall not be im1816.

peached or set aside by evidence of any informality or irregularity in levying the tax, or in any of the proceedings previous to such sale. 44 Ohio Laws, 114.

This particular section of the statute has reference to proceedings in forcible entry and detainer, and there is nothing in it which requires that its principles should be extended to other cases. This is not a proceeding of that kind, and, of course, this statute has nothing to do with this case.

Upon full consideration of the whole case, this Court is of opinion that there was nothing erroneous in the judgment of the Supreme Court of Hamilton county, and that judgment is affirmed.

Judgment Afirmed.

ABRAHAM SHROLL vs. JOSEPH KLINKER.

If a vendor sell and convey land by a correct description, but, by mutual mistake of the

parties, without fraud on the part of the vendor, the vendee enters upon a wrong tract, and makes improvements, he cannot sustain a bill in Chancery to recover the value of his improvements.

This is a BILL IN CHANCERY, from CRAWFORD County, submitted upon bill, answer, replication and testimony.

The bill charges, in substance, that the complainant, being desirous of purchasing a certain tract of ground, situated near Osceola, in Crawford county, known as the west half of the southwest quarter of section 25, township 2, south, of range 15, in the district of lands then subject to sale at Marion, Ohio, containing 80 acres, with a deadening or partial clearing upon 25 acres of the same, represented as belonging to one Joseph

Shroll v. Klinker. ·

Klinker, entered into a negotiation with him for that purpose; In Bark. that said Klinker represented himself as the owner of the land Dec. Term, ..

1846. · upon which the deadening was; that complainant was wholly ignorant of the description of said.lot; that, relying upon the representations of Klinker, complainant purchased, for the sum: of $550, $50 to be paid in hand, and $ 250 when respondent should come for the same, to complainant's house, in Crawford county, and the residue in the spring following; that Klinker : entered into a written agreement to convey said land, on re.ceiving the payment of the purchase money, by deed, with the usual covenants of warranty; that the land described in this . written agreement, was the east half of the southwest quarter

of the section aforesaid; that complainant entered upon' and
:: took possession of the lot of land upon which the deadening:

had been made, supposing it to be the same he had purchased,
and made improvements — cleared, fenced, and built a house .
and barn — to the value, in all, of over one thousand dollars ;
that Klinker visited the complainant whilst residing upon said
lot, to receive his purchase money, and assured him it was the...
lot he sold; that one Adam Bear, who had made the deaden-
ing for Klinker, pointed out the land to complainant; that
Klinker and wife, subsequently, by deed, conveyed said east
half to complainant, on the 28th of March, 1839; that said east
half was wholly wild and unimproved, and the deadening was
upon the west half; that the complainant called upon. Klinker:
to convey said west half, which he refused, as having no title.'
The prayer of the bill is for a conveyance of said west half, on
which the improvements are made, or compensation for the
value of the improvements. 1.

The answer denies all fraud; states that respondent had never seen the land when he purchased; that he took his certificate of purchase, given at the land office, went to see his land, and was referred to one Adam Bear, as a suitable person to point it out; that Bear did so — or pretended to; thinks he

showed him his certificate of purchase, and engaged him to · do some clearing; that he had no other knowledge of the loca

10 il

Shroll v. Klinker.

In Bank. tion of the land ; that he was not aware that the deadening was Dec. Term, not made on the east half, and denies all intentional misrepre

sentations; admits that he informed complainant that he had employed Bear to make an improvement on the east half; insists that it was complainant's own fault he went upon the wrong lot; and says that, when he called for the money, he supposed, of course, that complainant had gone into possession of the right lot.

The proof shows, that complainant's improvements were made as claimed in the bill ; that Bear pointed out to Klinker the land; that he was often employed for this purpose, and pretended to understand the location of lands; that the complainant said he had made a mistake and got on the wrong land; that the east half was in a perfectly wild state was of as much value as the west half, with the improvement * upon it.

John Scott, for Complainant. i
The case was submitted for complainant without argument.

Powell & Buck, for Respondent, argued that:

First: The statute of frauds affects this case.

Second: The maxim, caviat emptor, is here applicable. 1 Sug. on Vend. 536 and note 1 ; Ibid. 2, secs. 3, 4, 5; 1 Story's Eq. 161, sec. 148; Ibid. 159, sec. 146; 1 Sug. on Vend. 537, sec. 6; 1 Johns. Ch. Rep. 577, sec. 2; Caines' Rep. 191, sec. 2.

Third: Where the means of information are open to both parties, and each is presumed to exercise his own diligence,

there is no relief; 1 Story's Eq. 161, sec. 149; Ibid. 163, sec. . 150. This rule is applicable to this case. 4 Eq. Dig. 706, sec. 12.

Fourth: “Where each party is equally innocent, and there is no concealment of facts,” &c., the mistake, whether material or immaterial, is no foundation for equitable interference. . It is strictly damnum obsque injuria.” i Story's Eq. 164, sec. .151; Ibid. 160, sec. 147.

Shroll v. Klinker.

Fifth: The fact about which there is mistake, must be ma- In Bank.

Dec. Term, terial. 1 Story's Eq. 156, sec. 147; Ibid. 158. .

1846. Sixth: “Where there is a mistake between the parties as to m e what was sold, the court will not interfere in favor of either party.” i Sug. on Vend. 342. sec. 41.

Seventh: “A vendor, selling in good faith, is not responsible for the goodness of his title beyond the extent of the covenants in his deed ;" 5 Johns. Ch. Rep. 79. The vendee must seek his remedy at law on the covenants, if there are any, if not, he has no remedy. 2 Johns. Ch. Rep. 519; 1 Ibid. 213; 8 Amer. C. L. 281, sec. 3..

Eighth: Equity will not interfere where the damages are trifling. 12 Ohio Rep. 387.

READ, J. Taking this whole case together, it shows a mistake, for which one party is as much to blame as the other. Klinker sold the land by a right description, and if the complainant had used a little diligence he could have found the right lot. The deadening referred to by Klinker, was a matter of mistake for which Klinker was not responsible. He was himself misled as to that. He did not intend to sell or describe other land than he himself had purchased at the land office. The complainant knew as much about the land as Klinker, and probably more. Now, to hold that Klinker should lose the whole value of these improvements, would be as hard as to compel Shroll to lose it. Both parties stand upon an equal footing — both equally innocent. No fraud, no design to cheat or overreach. Now which shall lose? For here we cannot apportion or divide out a loss resulting from a common mistake, as may be done by the civil law. One or the other must lose the whole. We admit it to be a hard case; but we cannot discover any ground of relief. The land sold was rightly described, and complainant should have been more diligent in hunting it up.

Bill Dismissed with Costs.

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