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Bayless v. The Belmont Bank of St. Clairsville.
ish their obligation. The bond was good without his aid, or In Bank. good for nothing in spite of him. As a common law bond, vecigasi then, there must have been a consideration. In this case, the sole consideration was that it should operate to supersede the ca. sa. on which McKee was held in custody. It was executed upon this supposed consideration, and so delivered to the clerk. But we have already seen that it had legally no such effect already seen that third parties could not add any vigor to it beyond what had been imparted to it by its makers. Suppose Judge Rogers had not erred, but had held, as he should, that the writ of error did not supersede the execution, where, then, would have been the consideration which would have sustained the bond at common law? It is very clear that there would be none. The fact that he did not so decide can make no difference. A judicial error of an Associate Judge of the Common Pleas was not the thing contracted for, or if so, was not a valid consideration. The discharge of McKee by him was not what was stipulated for. If it were so, another serious objection would exist: it would be void as a bond given for ease and favor. The common law would not sustain a bond having no other consideration than the violation of duty by a public officer. We therefore are constrained to say that the Court of Common Pleas erred in refusing to give the second and third instructions, as prayed for by plaintiff's counsel, and in charging that' the discharge of McKee was the consideration, and sufficient.
This disposes of the case, and renders it unnecessary to pass upon any of the other points made. ' But thus far I have proceeded without noticing one of the cases cited by counsel. This has been done solely with a view of enabling me to make the decision as clear as possible. The questions are intricate and interesting in themselves. The case in which questions of this kind have been considered with most ability, is Zinn's case, 15 Pet. Rep. That sustains the cases in replevin cited for defendant from the Massachusetts Reports, and 10 Ohio Reports.
Bayless v. The Belmont Bank of St. Clairsville.
In Bank. Our decision, upon the closest scrutiny, will be found to con
tain nothing in conflict with the sound principles established in those cases. In each one of those cases the obligors received the precise consideration contracted for, and that consideration existed as executory or executed, at the delivery of the bond.
Another position has been taken for the defendant in error which deserves notice.
It is said that McKee and his surety, Bayless, are estopped from denying that the bond superseded the ca. sa. That the main object of filing the bond was to procure the release of McKee, which object was attained, under circumstances amounting to an estoppel in pais. Let it be always borne in mind that Bayless is a surety, that his only act in the whole matter was the affixing his signature as surety of McKee, at the date of the bond, and his happening to be in Court and remaining silent during the proceedings upon the habeas corpus. What had been done prior to that trial by him was altogether beyond his control. He then had no right to interfere with that proceeding, and his silence in no sense operated as a fraud upon the bank. There is no ground to say he is estopped from averring the truth.
Gillett v. Webster and others.
IN Bank. Dec. Term,
1846. GEORGE G. GILLETT vs. Smith WEBSTER and others.
A judgment creditor having a lien upon land, when sold for taxes cannot file a Bill
in Chancery to avoid the sale as invalid, without first refunding the amount of the tax, penalty and interest, or an offer to do so.
This is a Bill in CHANCERY, reserved in the County of Ash TABULA.
The facts of the case will be found stated in the opinion of the Court.
Perkins &. Osborn, for Complainant.
R. P. Ranney, contra.
No arguments were furnished to the Reporter.
Wood, C. J. The bill in this case states that Smith Web ster was seized of certain lands in fee, in lots No. 20 and 21, in Kingsville, in the county of Ashtabula, on the 25th of June, 1839, and, on that day, conveyed by deed in fee, absolute on its face, to Horace Luce, one of the defendants; that this conveyance was in fact a mortgage, in security to Luce for indorsing Webster's note. Webster afterwards paid the note, and, at his request, in order to keep the land beyond the reach of creditors of Webster, Luce conveyed in fee to Webster's wife, without consideration, on the 13th of April, 1840. On the fifth of the succeeding May, the complainant recovered judgment, in the Court of Common Pleas of Ashtabula county, against Webster, for $140.45, and on the second day of March, 1841, execution issued and was levied on the land in controrersy.
The bill also states, that Jonathan Warner claims to have purchased the land, at a tax sale, in December, 1840, and re
Gillett v. Webster and others.
In Bark. ceived the county auditor's deed, but that the sale was void for Dec. Term,
", the want of a pertinent description, being only described as
“twelve acres, in range two, township 13, inlots 20 and 21." That Mrs. Webster died without will. leaving minor heirs; that Webster has no other property, and that the debt on which the judgment was recovered was contracted before the conveyance to Mrs. Webster, and that the judgment remains unsatisfied and in full force.
It is also stated in the bill, that before Warner obtained the deed upon tax sale, the complainant called upon him and offered to pay him the tax, interest, and penalty, which was a very small sum, but which Warner refused. The prayer of the bill is, that the deeds to Mrs. Webster and Warner be declared void, and that Luce and Warner release to Webster; that an account be taken of the judgment, taxes, interest, &c., and that the land be sold, and the judgment and taxes paid from the avails ; and for further relief.
Smith Webster has not answered. The minor heirs of Mrs. Webster answer by their guardian, and call for proof. Warner answers, admitting his purchase at the sale for taxes, but insists that he acquired a good title, and denies that the complainant ever tendered him the amount of tax, interest, and penalty, as stated in the bill, but says he was once called upon by the complainant, who was desirous of purchasing the tax certificate, but they could not agree upon the terms, and the complainant went away. A replication was filed and testimony taken.
The depositions of Horace and Artemas Luce prove the complainant's case, against all the defendants, except Warner, and, against them, there is no reason perceived by us why the complainant may not take his decree. Warner, however, occupies different ground. By the act, entitled “an act for the protection of purchasers at judicial and tax sales,” Ohio Laws, vol. xliv., 114-15, it is provided that, whenever a sale for taxes shall be invalid, the purchaser shall have a lien upon the land for the amount paid, &c. Of this lien, therefore, if his
City of Cincinnati v. Bryson.
tax title be defective, he cannot be divested, without, at least, IN BANK.
Dec. Term, an offer to refund to him the money advanced. The complainant's solicitor was aware of this, and the bill contains the necessary allegations; but has he not failed entirely in his proof?
There is no evidence, but the answer of Warner, and that, in our opinion, falls very far short of furnishing the necessary proof. The complainant called upon the respondent to purchase his certificate of sale, but they could not agree," and not a lip is heard of any tender or offer to pay. Upon familiar principles, the complainant is not rightly in equity, until he has done that justice, or offered to do it, which he exacts from others. It is a condition, precedent to any right to institute his suit, and, for that reason alone, the complainant's bill must, as to Warner, be dismissed.
This view of the case renders it unnecessary to examine the tax title; and sufficient for the day is the evil thereof.
Bill as to Warner dismissed.
CITY OF CINCINNATI vs. PETER BRYSON.
The City Council of Cincinnati has power to license and regulate draymen, and may
require a reasonable sum, by way of excise, on the special employment. The right to license and regulate, confers no taxing power over the draymen.
This is a WRIT OF ERROR to the Court of Common Pleas of HAMILTON County.
The writ is prosecuted to procure the reversal of the judgment of the Court of Common Pleas, reversing the judgment of the Mayor of Cincinnati, rendered by that officer in a complaint pending before him, prosecuted by the city against the defendant, for a violation of the city ordinance.
The original complaint before the Mayor of Cincinnati, was “ for neglecting or refusing to take out license for a dray, in the