Lessee of Barton and others v. The Heirs of Morris. Dec. Term, 1846. held, and can claim nothing which he could not have claimed. IN BANK. The deeds from the heirs of McKay, passed to them nothing more than a naked legal title, subject to the equities arising under the contract, and the long continued possession of those entitled to that equity, or who in law represented it. It is very evident that the plaintiffs' lessor has been under a great mistake in the application of the facts to the law of his case. While he states the latter generally with much accuracy, there is a strange misapplication of the former. He even assumes that the plaintiffs' lessor, claiming under the heirs of the elder Barton, held a title by adverse possession since 1823, the date of Johnston's deed, up to the time the heirs were ejected by Morris under the deed from the younger Barton, in 1836; and throughout his argument upon this part of the case, overlooks entirely the fact that, in 1823, Edward Barton, senior, gave up his contract to Johnston, surrendered thereby the equity to his son, treated his son as the owner, and, supposing Johnston authorized to convey the legal title, directed him to convey to the son; that he did convey; and the son, to the time of the father's death, refused to release or reconvey, although he permitted the father to remain on the land while he lived. He also assumes that all the equitable title remained in Edward Barton, senior, after his fraudulent surrender, and the conveyance made by his direction, while we hold that he cannot show a particle of equity without showing the fraud; and, as a matof law, counsel admit, that to permit him to do that would be grossly erroneous. I have endeavored to make our views known. They are satisfactory to ourselves, and with that we must be content. Judgment for Defendants. N. B. -An application for new trial and reargument, was made by Mr. Jolliffe, which was overruled. 1 Arbuckle's Executors v. Tracy's Administrators. IN BANK. Dec. Term, 1846. ANDREW ARBUCKLE'S EXECUTORS VS. BENJAMIN F. If notes be delivered to an executor to indemnify the estate against a liability where the testator was a surety, such notes and the money collected on them are not the property of the estate, and the estate is not liable for the misconduct of such executor, in respect to such notes and money. Under such circumstances, the executor is a trustee for the person delivering the notes, and he alone is responsible for a faithful application of the money collected. THIS is a CASE IN CHANCERY reserved in the County of LAKE, and comes before this Court upon bill, answer, replication and testimony. The facts disclosed are these: June 30, 1829, B. F. Tracy, Charles M. Reed and Samuel Hayes became sureties for Andrew Arbuckle, on a note, in the sum of $559.11, and on the 25th April, 1833, they also became his sureties on another note in the sum of $689.29, on both of which notes there are now judgments against said Tracy's estate. Arbuckle's estate has paid about $700 on said notes, leaving from $1,000 to $2,000 now due. Tracy died January 5, 1834, and by his last will and testament appointed V. J. Card his executor, expressing the wish that he "should take the whole management of settling his affairs and estate," and giving him "full power to settle each and every demand in law and equity." Card accepted the trust, gave bonds, and acted as executor until April or July, 1840, when, his account having been filed and approved, he resigned, and respondents, Foote and Russell, were appointed administrators de bonis non. After said notes became due, and before suit upon them, to wit, April 9, 1835, Arbuckle, whether at the instance of Card or of his own mere motion does not appear, placed in Card's hands sundry notes amounting to the sum of $396.08, and took from him a receipt, as follows: "Received of Andrew Arbuckle the notes, of which the foregoing is a list, as collateral security to indem Arbuckle's Executors v. Tracy's Administrators. Dec. Term, 1846. 'nify me as executor of the last will and testament of Benja- IN BANK. 'min F. Tracy, deceased, against the payment of two certain 'notes," describing them, and adding: "Now, if the said 'Arbuckle shall save harmless the estate of the said Tracy from the payment of the notes specified in the receipt, and so 'signed by the said Tracy and others, as aforesaid, then I am to account to the said Arbuckle for the notes received of said 'Arbuckle, as per the foregoing list. Dated April 9th, 1835." Signed "Varnum J. Card, Exr. of Benj. F. Tracy." Of these notes, Card collected part, using his name as executor, and, by reasonable diligence, might have collected most of the balance; but no part of said notes or of the money collected thereupon ever came to the use of Tracy's estate, or was applied for its benefit, or in any way intermingled with its Card's account, filed, showed him largely indebted to Tracy's estate, but embraced none of the collections from these notes. Card died intestate, September 1, 1840, and Backus is his administrator. Tracy's estate is solvent, Arbuckle's probably so, and Card's utterly insolvent. assets. The object of the bill is to subject the estate of Tracy to the payment of the money collected by Card on the notes. placed in his hands by Arbuckle. Perkins & Osborn, for Complainants. Card, the executor of Tracy, in procuring and receiving the notes of Arbuckle to indemnify the estate, was acting within the scope of his authority, as executor, and in the faithful performance of his duty. It was his duty to protect the estate from loss, and, if possible, procure an indemnity; Off. of Ex. 171, note 1. It would have been his duty, if necessary, to have filed a bill in chancery for that purpose, and he might as well receive the indemnity without suit as with. Stump v. Rogers, 1 Ohio Rep. 225; 1 Law Lib. Prin. & Sur. sec. 245. An executor has large discretionary duties. He may exchange securities; he may continue the business of the testa Dec. Term, Arbuckle's Executors v. Tracy's Administrators. IN BANK. tor, and do many other acts for the benefit of the estate. Swan's Ex. 116; Toller's Ex. 164; Off. of Ex. 174, 187; Williams on Ex. 1177. 1846. An executor is regarded as the agent and trustee of the estate, and, when acting within the limit of his powers, the estate is bound for whatever he does. Within this limit he received these notes, and, consequently, and especially, as the estate of Tracy has never paid any thing for Arbuckle, it is bound to refund the amount with interest. Tanksley v. Anderson, 4 Dessau. 44; 2 Bar. & Har. Dig. 396. See, also, Tousant v. H. Foote, for Defendants. The notes were not placed in Card's hands on any contract therefor, express or implied, between Tracy and Arbuckle. Had Tracy contracted with Arbuckle for the notes afterwards delivered, as collateral security against his becoming surety, it would have placed the matter on entirely different ground. But Card acted on his own responsibility. His naming himself as executor, does not change the character of the transaction. Mc Coy v. Gilmore, 7 Ohio Rep. 268, part I.; Waldsmith v. Waldsmith, 2 Ohio Rep. 156. It is not competent for Card, as executor of Tracy, to originate liabilities or make contracts to bind the estate, under pretence of taking security against a contingent liability. Forster v. Fuller, 6 Mass. Rep. 58; Thatcher v. Dinsmore, 5 Mass. Rep. 299. It was no part of his duty to receive the notes of Arbuckle. It was not settling up the estate. It was not getting rid of liability, but prolonging it. Swan's Stat. 877. Under the arrangement made between Card and Arbuckle, Card became the agent and trustee of Arbuckle. He was trusted by Arbuckle in a matter beyond the sphere of his official duties, and is, therefore, only responsible to Arbuckle in his individual capacity. Lessee of Paine v. Mooreland. It was the IN BANK. READ, J. Tracy was security for Arbuckle. duty of Arbuckle to discharge the original debt. Tracy was liable only collaterally. Arbuckle, on the decease of Tracy, delivered over to Card, his executor, the note in question, as indemnity or collateral security. When collected, the money did not belong to Tracy's estate, but was to be applied to discharge the debt of Arbuckle's estate. Neither the note nor the money collected belonged to Tracy's estate, but was held in trust to be applied to the benefit of Arbuckle's estate. Card was a trustee or agent for Arbuckle, and was to account to Arbuckle. Hence, if he violates his trust or duty as agent, the loss must fall upon Arbuckle. It would be a novel principle, indeed, to permit Arbuckle to constitute Card his agent, to do exactly what in law he was bound to do, and then hold Tracy's estate bound for the faithful performance of the trust by Card. If Card had collected any money, and applied it to the benefit of Tracy's estate, to that extent the estate would be liable; but this is not pretended. Bill Dismissed. Dec. Term. 1846. LESSEE OF BENJAMIN PAINE VS. BAZALEEL MOORE LAND. A person executing a defective deed for the conveyance of land, which deed has not been recorded, has an interest in the land capable of being attached. If attached and sold as the property of the vendor, a purchaser, without notice of the equity, takes a good title as an innocent purchaser without notice. The Court acquires jurisdiction in attachment, by the issuing of process, predicated upon the requisite affidavit, and the attaching of the property; and if, after thus obtaining jurisdiction, the Court proceed to render judgment, without the publication of notice, such judgment is not void, and cannot be impeached collaterally, but must be reversed upon writ of error. THIS is an ACTION OF EJECTMENT, reserved in the County of LICKING, and is submitted to the Court upon the following agreed statement of facts: Both parties claim title under David Letts, the grantor of one William Farmer, who held the legal title. The deed from |