1854. HUNT Nov. Term, the intention of the parties, as deduced from the circumstances which surrounded them. Salisbury v. Andrews, 19 Pick. 250.-Hodges v. Strong, 10 Verm. 247.—Mayo v. Blount, 1 Ired. 283.- Venable v. Mc Donald, 4 Dana 336.Thatcher v. Howland, 2 Metcalf 41. V. FRANCIS. Nor are we at liberty to overlook the rule, that a grant is to be taken most strongly against the grantor. Let us first inquire what, from all the circumstances, Hunt meant to convey? He knew the line dividing the parcel of land sold to Chappell from that retained; for he had placed his fence on that line about the time of the sale. He had constructive notice of the plat recorded by Chappell, and that there was four feet between his land and the recorded alley. Like every one else, he knew the law-knew the consequences of conveying land to which he had no title. He had seen that after Morgan and Spooner became the owners, the alley was thrown open to its full extent, corresponding with the alley of which it was a continuation. He was aware that for years the public had been permitted to use it, thus opened, as an alley. Under all these circumstances, the plain inference is, that Hunt, in his deed to Francis, meant the sixteen feet alley as opened and used. How was it with the Messrs. Francis, the vendees? They had at least constructive notice of Chappell's recorded plat. Hunt's fence was on the line at the time they purchased. They could see that the fence corresponded with one side of the alley extended from the old plat through the new. That fence was a monument. If instead of being a rail or board fence, it had been cut stone, with iron railing on the top, it would have been a monument so marked, on the line of the alley de facto, as to leave no doubt of the intention of the parties, or which alley they had in contemplation. The fence that was there was a monument of the very same kind, though less in degree, less fixed and permanent. Still, in the absence of any fraud or misrepresentation as to the boundary on the part of Hunt, that fence, with the other circumstances surrounding the parties, is an almost unfailing index to the mind and intentions of the vendees. In other words, they bought with reference Nov. Term, to the alley as then used and the lot as thus defined. From the whole circumstances, therefore, it is clear that both the vendor and the vendees treated the alley, in common with the public generally, as a sixteen feet alley. The length of time it had been used, the manner in which it was opened, and its correspondence with the other alleys, had induced the belief that it was permanently opened to the public. It was accordingly, in the contemplation of both parties, referred to in the deed as a boundary. Nor could the Court presume in the face of the facts, viz.: that Hunt had already conveyed up to the line of the alley de facto; that Morgan and Spooner were the owners of the strip, four feet by forty-seven, between the exterior line of the alley de facto and the corresponding line of the alley de jure;—from these facts the Court could not presume that Hunt intended to convey the strip in question. Indeed the contrary is strongly implied. Had Hunt actually owned up to the recorded alley, then construing the deed most strongly against the grantor, would have carried the boundary up to the line of that alley. But we can not carry the presumption against a vendor to such an extent as to convey land to which he has no title, unless the terms of the deed, or the fraudulent misrepresentations of the vendor as to boundary, show that such was the intent. The rule is this: Where there are two objects or lines answering the calls of the deed, and it appears that the grantor owns up to the first, but does not own the space between the two, that which the call first meets is the boundary. So that whether the alley was private property, or had been dedicated to the public, was wholly immaterial; for it answered the purpose of a boundary equally well either way. In the contemplation of both the grantor and grantees, the fence on Hunt's line, between his land and the alley as open and used by the public at the time of the conveyance, was the boundary described in the deed thus: "thence south-westerly with the alley forty-seven feet." By any other construction, we would involve ourselves 1854. HUNT v. FRANCIS. 1854. SMEAD V. GREEN. Nov. Term, in endless embarrassment and absurdity. We would be imputing to Hunt the fraud of conveying to Francis four feet by forty-seven, which he had already conveyed to Chappell, and which lay outside of the fence or monument erected as a boundary, and standing there at the time of the conveyance. And as to Francis, we know of no consideration upon which he could even fancy that any other boundary than the fence was intended. It was at least sufficient to put Francis on inquiry. Per Curiam.-The judgment is reversed with costs. D. S. Major, A. Brower, and J. Ryman, for the plaintiff. 5 308 150 382 150 388 SMEAD and Another v. GREEN and Another. By the common law illegal interest paid might be recovered back. note. Tuesday, ERROR to the Switzerland Circuit Court. PERKINS, J.-Assumpsit upon a promissory note of which the following is a copy. "$2,500. Cincinnati, March 11, 1846. Thirty days after date, we or either of us promise to pay William Smead & Co., or bearer, twenty-five hundred dollars, for value received. And it is understood that the liability of neither of us is to be affected by further time being given for payment; and in case said sum should not be paid when due, we or either of us do hereby empower any person duly authorized, to confess a judgment without process, and without notice given to us, before any Court of competent jurisdiction, for the above sum and costs, with release of errors, &c., waiving the right of appeal. [Signed] Martin Nov. Term, R. Green, Eliphalet Case, Jr." The defendants pleaded payment, with notice of set-off, &c. Replication, denying the payment and the set-off. The statutes of Ohio on the subject of interest were set out in the declaration and given in evidence. The record states, that "It was admitted by the defendants upon the trial, that the promissory note declared on was made by them at Cincinnati, Ohio, at its date, and that the plaintiffs were, at that date, partners, and that the note was payable to them. One Scott Carter testified that he had heard the plaintiffs say that the defendants agreed, at the date of the note sued on, to pay the interest on the note at the rate of 2 per cent. per month, and that they had paid the interest, at that rate, on the note, up to the 3d of September, 1850, on that part of the principal remaining unpaid. It was proved that 500 dollars of the principal was paid on the 3d of December, 1846, and 900 dollars on the 3d of April, 1848." This was all the evidence given in the cause. The Circuit Court gave judgment for the defendants. We affirm that judgment. The contract to pay the 2 per cent. per month interest, was usurious and void. The law of Ohio, as set out in the record, forbade the taking of over 6 per cent. By the common law, illegal interest, when paid, may be recovered back. The State Bank v. Ensminger, 7 Blackf. 105. And were this not so, the legislature of Ohio, in February, 1848, passed an act, which took effect on the 1st of March succeeding, authorizing it to be recovered back or set off, as the case might require. In the case before us, there is nothing showing that the usurious interest was paid till the 3d of September, 1850, and we certainly will not resort to inference to aid such Shylocks as these plaintiffs in successfully contemning the law of the land, and cutting out the pound of flesh from their victims. Applying the amount paid as usury to the principal of the debt, it makes full payment. 1854. SMEAD V. GREEN. Nov. Term, 1854. THE STATE V. HAMILTON. Per Curiam.-The judgment is affirmed with costs. J. G. Marshall and D. Kelso, for the defendants. Tuesday, THE STATE on the relation of DUNN, Auditor of State, v. The list of "stock" required by the R. S. 1852 (1 R. S. 1852, pp. 113, 114, 115,) to be furnished by the president, secretary, agent or other accounting officer of every railroad, plankroad, turnpike-road, slackwater navigation, telegraph and bridge company in this state, to the auditor of the county where their principal office is situated, for taxation, is not the subscriptions of stock, but the actual, tangible property of such company. If the company does not furnish such list by the first of June in any year, its For the purpose of compelling the auditor, by writ of mandamus, to make out APPEAL from the Marion Circuit Court. PERKINS, J.-On the 22d day of December, 1853, John P. Dunn, auditor of state, made affidavit that the Peru and Indianapolis Railroad Company had failed to furnish to the county auditor of Marion county, being the county in which the principal office of said company was situated, a statement of the property of said company, as required by the provisions of the act for the assessment of taxes; and, further, that the auditor of said county had also failed to prepare such statement, to supply the omission on the part of said company, as by statute he was required to do. The affidavit was filed in the office of the clerk of the Marion Circuit Court, and upon it a mandamus was moved for, directed to the auditor of Marion county, commanding him to prepare the statement, &c., or show cause, &c. |