Lessee of Barton and others v. The Heirs of Morris. Third: The lessors of the plaintiff hold the legal title to IN Bank. the several shares for which they sue. 1. We then claim that we ought to recover upon an actual, notorious and adverse possession, for upwards of twenty-one years before the commencement of this suit. 2. As parceners, whose right to recover the defendant cannot dispute, until he shall have previously established his legal title to the whole land, by a verdict and judgment in ejectment in his favor upon that legal title. 3. Because we hold the legal title under the deeds of such of Edward Barton, senior's heirs, under whom we claim, who, before they conveyed to the lessors of the plaintiff, had got in the legal title of all of Haines' heirs, except Madison McKay. But if these deeds passed nothing to us by reason of previous deeds to Johnston, then, under the deed from Johnston, united with the deeds from Barton's heirs, we claim the legal title in the same manner as if Johnston had conveyed it to Barton's heirs before they conveyed to the lessors of the plaintiff. 4. Even the possession of Mrs. Barton and her children, after the death of her husband, claiming, as they did claim, title to their respective shares, would be sufficient to enable the plaintiffs to recover, unless the defendants have shown a better title; 3 Ohio Rep. 240, 388. The possession of one or more coparceners is the possession of all. Either of these grounds is sufficient to enable the plaintiff to recover. Fourth: The defendant claims his title under the deed from James T. Johnston and wife, made to Edward Barton, Jr. 1. This deed passed nothing more than the interest of Johnston and his wife. It did not pass any part of the interest of Haines' heirs. See Combs' case, 6 Co. 18; Strange, 705; Frontin v. Small, Paley on Agency, 152; Wilks v. Pack, 2 East 142; 4 Mass. Rep. 595; Fowler v. Shearer, 7 Mass. Rep. 14; Sumner v. Williams, 8 Mass. Rep. 162; 1 Ohio Rep. 349; 2 Wheat. 56. Dec. Term, 1846. IN BANK Dec. Term, 1846. Lessee of Barton and others v. The Heirs of Morris. Johnston, at the time he made this deed, had a power of attorney from part only of the heirs of Amos Haines. It is signed by Joseph Canby and wife, Noah Haines, Nathan Haines and Robert Haines, and is dated 21st May, 1823. The acknowledgment of Mrs. Canby is not sufficient; 2 Chase's Stat. 1139, sec. 2, 1140, sec. 6; 6 Ohio Rep. 358. There is no acknowledgment by Robert Haines; 2 Chase's Stat. 1140, sec. 6. The power of attorney has never been recorded in Clermont county, where the land is situated; 2 Chase's Stat. 1140, sec. 7; Taylor v. McDonald's heirs, 2 Bibb, 423. It has never been signed by Mrs. McKay, or any of her heirs. It has but one subscribing witness; Lessee of Patterson v. Pease and others, 4 Ohio Rep. 190; Courcier v. Graham, 1 Ohio Rep. 330.. The deed from Johnston and wife to E. Barton, Jr., was a mere nullity, except so far as it conveyed the interest of Johnston and his wife. All the title of Haines' heirs remained as it was before it was made. Fifth The defendant contends that by the deed of Noah Haines and wife, Nathan Haines and wife, and Margaret H, Canby and her husband, dated April 5, 1825, and the deed of Robert Haines, dated 9th of June, 1824, the parties conveyed to James T. Johnston, their interest, title, &c., to the land sold by Amos Haines to Edward Barton, sen. These deeds convey no title to the Barton farm, and were not intended by the parties in any manner to affect that farm. 1. The deed from Robert Haines is of "the estate, real or 'personal, of which Amos Haines was possessed at his decease - to have and to hold the above estate or estates, with all the privileges and appurtenances, he and his heirs and assigns for ever." Both the grantor and grantee had actual personal and positive notice that E. Barton, sen., was in actual possession of the farm in question; that he had bought and paid for it, and, therefore, held it by title adverse to Haines; and this deed ap Lessee of Barton and others v. The Heirs of Morris. plies only to land of which Amos Haines had the possession IN BANK. at his death, either actual or constructive.. 2. The deed from Canby and wife, Noah Haines and Nathan Haines, does not pass the legal title of Mrs. Canby, because the statute (2 Chase's Stat. 1139, sec. 2,) required that upon the private examination, the wife should acknowledge the signing and sealing of the deed. Here the certificate does not state that she acknowledges the "sealing" of the deed, nor is there equivalent words. In Connell v. Connell, 6 Ohio Rep. 358, it is held, "that before the rights of the wife to lands are affected, the second section ' requires an acknowledgment that she voluntarily sealed and ' delivered" the deed. As this is not done, her title did not pass. She had but a naked legal title, unaccompanied with the right of possession. Her husband had no interest; his only right being to take the rents, issues and profits - none of which could exist in this case. 3. As to Nathan and Noah Haines, the certificate to the acknowledgment has no seal. It is dated June 6, 1825, and governed by the act of February 24, 1820; 2 Chase's Stat. 1139. The first section of this act requires the justice to subscribe his name and affix his seal to the certificate of acknowledgment. The act of December 28, 1825, first page of the third volume of Chase's Statute, provides, that it "shall not be necessary to the validity of any deed or other instrument of 'writing hereafter to be executed, that a seal shall be affixed'to the certificate of office before whom the acknowledgment 'shall be taken." From May, 1818, until the act just quoted, a seal was required to the acknowledgments of all deeds in Ohio; see Paine and others v. French, 4 Ohio Rep. 318; Swan's Stat. 269, note a. At the time this deed was made, it did not pass the legal title of Noah and Nathan Haines in the land in dispute. Johnston took nothing by it in that land. The case comes within the rule in Good v. Zercher, 12 Ohio Rép. 366. Independently of the constitutional guaranty, it is beyond Dec. Term, 1846. Dec. Term, 1846. Lessee of Barton and others v. The Heirs of Morris. IN BANK. the compass of legislative powers to take the title of one and confer it upon another, without trial, process or compensation; Fletcher v. Peck, 6 Cran. Rep. 78; Bowman v. Middleton, 1 Bay. 252; 1 Kent's Com. 4th ed. 451; Vanhorne v. Dorrence, 2 Dall. Rep. 204; Calder et ux. v. Bull et ux., 3 Dall. Rep. 386; 1 Kent's Com. 451. The deeds described no land-no location is given to it. They are, therefore, void for uncertainty; Boardman et al. v. Lessees of Reed and Ford et al., 6 Pet. Rep. 345; Mc Chesney's Lessee v. Wainwright, 5 Ohio Rep. 452; Blake v. Doherty, 5 Wheat. Rep. 359; 3 East Rep. 171; Brown v. Jackson, 3 Wheat. Rep. 449; Shobe's Ex. v. Carr et ux., 3 Munf. 10; Adams v. Caddy, 13 Pick. Rep. 460; James' Lessee v. Avis, 4 T. Rep. 321; Dor ex. dem. Spearing v. Buckner, 6 T. Rep. 610; Crosswright v. Hutchinson, 2 Bibb, 410; Sandford v. Raiker, 1 Meri. Rep. 644; Breckenridge et ux. v. Duncan et al., 2 Marsh. Ky. Rep. 51; Cooke v. Oakley, 1 Peere Williams, 302; Daniel's Lessee v. Miles, 6 East Rep. 494; Runington on Eject. 309; 13 Johns. Rep. 313; Crawford v. Jarrit's Admr., 2 Leigh's Rep. 633;. Barkley v. Barkley, 3 M'Cord's Rep. 269; 3 Johns. Rep. 388; Livingston v. Ten Brouck, 16 Johns. Rep. 14. The estate conveyed was that of which Amos Haines was possessed at the time of his death, and the parties to the deed could not have intended to convey more than they supposed he possessed at that time. Subsequent development of facts, unknown to the parties at the time of the conveyance, cannot affect the construction of the deed. 8 Johns. Rep. 495; Van Wick v. Wright, 18 Wend. Rep. 157; Moore v. Jackson, 4 Wend. Rep. 52; Corbin v. Jackson, 14 Wend. Rep. 619; Jackson v. Hudson, 3 Johns. Rep. 375; Jackson v. Van Antwerp, 8 Cowen's Rep. 273; Jackson v. Blodett, 16 Johns. Rep. 172; Austin v. Sawyer, 9 Cowen's Rep. 39; Jackson v. Bodle, 20 Johns. Rep. 184; Hunt's Lessee v. McNeal, 1 Wash. C. C. Rep. 70. Lessee of Barton and others v. The Heirs of Morris. was IN BANK, 12 Parol evidence is admissible to prove whether a deed delivered, and whether it was accepted by the grantee. Wend. Rep. 105; 6 Cowen's Rep. 617; 12 Johns. Rep. 418; 5 Mason's C. C. Rep. 60; 1 Johns. Cases, 114; 4 Ohio Rep. 157; 1 Wend. Rep. 478; 2 Wend. Rep. 308. Sixth But if the title did not pass under these deeds to Dr. Johnston, then, under the deed from him to the lessors of the plaintiff, they hold the legal title, The doctrine of estoppel does not apply to this case. Greenleaf's Evidence, 30; Jackson v. Mills, 13 Johns. Rep. 463; 2 N. H. Rep. 167. Where a person without title conveys by deed with warranty, and afterwards receives title as trustee from the rightful owner, for the purpose of transmitting it to a bona fide purchaser, the doctrine of estoppel does not defeat the trust estate. Burchard v. Hubbard et al., 11 Ohio Rep. 316; 1 Sug. on Vend. 211; Avery v. Dufrees, 9 Ohio Rep. 145; House v. Beatty, 7 Ohio Rep. 84, part II; Buckingham et al. v. Smith and Dille, 10 Ohio Rep. 288. It is the right to recover back the same land, in the event of eviction, that works the estoppel; where that right does not exist, there can be no estoppel. Allen's Lessee v. Parrish, 3 Ohio Rep. 116; Patterson v. Pease et al., 5 Ohio Rep. 190; 2 Ohio Rep. 269; Thallhimer v. Brinkerhoof, 6 Cow. Rep. 90; Douglass v. Scott, 5 Ohio Rep. 194; 4 Kent's Com. 4th ed. 261, note b; Co. Litt. sec. 446; 14 Johns. Rep. 193. It is wholly by operation of law, in cases of estoppel, that the after acquired title inures to the benefit of the grantee. It is not the act of the parties. Brown v. Swearingen, 1 Ohio Rep. 412; Cruise's Dig., Tit. 5, chap. 1, sec. 27; 2 Hovenden on Frauds, 100; Nellis v. Clark, 20 Wend. Rep. 25. If there was fraud in procuring the deed to be made to young Barton, the law will not lend itself to aid either party, but will leave them as they are. Smith v. Hubbs, 1 Fair. Maine Rep. 71; Ferris v. Norris, 9 Dana's Rep. 317; Raguet v. Roll, Dec. Term, 1846. |