Miser v. Trovinger's Ex'rs.

Kent's Com. (7 ed.) 105, 110; Lafitte v. Slatter, 6 Bing. 623; 2 Smith's Lead. Cas. (4 Am. ed.) 54, 56, 57; 4 Cranch, 155, 156; Chit. on Bills (10 Am. ed.), 435, 436, 438, citing Brown v. Muffey, 15 East, 214; 3 B. & Al. 619; 8 B. & C. 610.

"When there are several persons, who are joint drawers or indorsers, entitled to notice, who are not partners, each is entitled to notice. Where they are partners, notice to either of the partners will suffice." Story on Bills, sec. 299; Story on Prom. Notes, sec. 329; Bailey on Bills, 285; State Bank v. Slaughter, 7 Blackf. 133; Shepard v. Hawley, 1 Conn. 368; Willis v. Green, 5 Hill (N. Y.), 232; Union Bank v. Willis, 8 Met. 504; Sayre v. Frick, 7 Watts & Serg. 283; 3 Kent's Com. (8 ed.) 135, note b and 3; 4 Smedes & Marsh. 749; 1 Harrison (N. J.), 429.

The case of Harris v. Clark, 10 Ohio, 5, does not stand in the way of this doctrine. This decision is an innovation upon the law 285] merchant, standing unsupported by any authority, but *in the face of high authority. Vide Shepard v. Hawley, 1 Conn. 368, and Union Bank v. Willis, 8 Met. 504.

As to partners, notice to one is notice to all, because each is the agent of all, and notice to an agent is notice to the principal. But as to joint contractors not partners, one is not the agent of the others, and therefore the rule, that notice to one is notice to all, does not apply, but each has several rights.

The fact that Smith knew at the time of acquiring the bill that Culbertson was principal, and that the other drawers were his sureties, does affect Smith as to his rights against the drawers. Griffith et al. v. Reed and Dixon, 21 Wend. 502; Suydam et al. v. Westfall, 4 Hill, 211; 2 Smith's Lead. Cas. in Eq., (pt. 2) 385; 2 Am. Lead. Cas. 304; 6 Ohio, 17. The bad faith of Culbertson, which excuses notice to him, does not dispense with notice to the other drawers who drew in good faith. Fraud affects only the party to it. 2 Smith's Lead. Cas. 58; Cory v. Scott, 3 B. & Al. 619; 21 Wend. 507. Accommodation drawers must have notice of non-payment, although they know the drawee will not pay the bill, provided they expect another person to pay it. 6 Bing. 623; 2 Smith's Lead. Cas., (4 Am. ed.), 54; 4 Cranch, 155, 156; Chit. on Bills (10 Am. ed.), 438, and cases there cited.

J. R. SWAN, J. The contract of a drawer is, that he will pay the bill, provided it be duly presented and payment duly demanded of

Miser v. Trovinger's Ex'rs.

the drawee, and in the event of non-payment, he be duly notified thereof. These are, in general, conditions precedent to the liability of the drawer.

This general rule is not denied; but the plaintiff claims that the drawers in the case at bar were placed beyond the operation of this rule, and were not entitled to notice of non-payment of the bill.

It is conceded on both sides, that there were no funds in the hands of the drawee. The fact of drawing without funds, in the absence of other proof to explain it, is a fraud; for the bill is negotiated under the faith that the drawer has or will place effects in the hands of the drawee to meet the bill; and if he had *no [286 effects in the hands of the drawee, and knew that none would be placed there, and that the drawee would not meet the bill, the whole transaction is deemed fraudulent on the part of the drawer. Another, but subordinate reason is given for this exception, that the drawer can not, in such case, be in any way injured for want of notice of non-payment. But it is the fraud in drawing and delivering such a bill, upon which the exception substantially rests; for bankruptcy or notorious insolvency of the drawee, or proof that in fact no injury resulted from want of notice, will not excuse the holder from giving the drawer notice. Notice, therefore, under this exception, is to be dispensed with in those cases where the drawer had no reason to expect, when he drew the bill, that it would be paid. Thus, in the case of Rucker v. Hiller, 16 East, 43, it was laid down, that the drawer is entitled to notice, if he have reasonable ground to expect the bill will be paid, although he have no assets in the acceptor's hands. So, in the case of Lafitte v. Slatter (6 Bing. 623), 19 Eng. C. L. 180, in which the defendant drew a bill on one Tebbs, under the expectation that a third person, not a party to the bill, who owed him, would provide funds for its payment, but neglected to do so, it was held that the defendant was entitled to notice of non-payment. Indeed, the rule is too well settled both by English and American cases to admit of question, that if the drawer has reasonable grounds to expect that the drawee will receive, through the transactions of the drawer, or from some one else, funds to meet the bill, although the drawer had no assets in the hands of the drawee, the drawer is, notwithstanding, entitled to notice of non-payment. 2 Smith's Lead. Cas., Wallace & Hare's notes, 55. The bill in the case at bar, was an accommodation bill, made for the exclusive accommodation of Culbertson, and all the drawers VOL. VII-17

257

Miser v. Trovinger's Ex'rs.

other than Culbertson were his accommodation drawers; and they expected Culbertson to provide funds to meet the bill.

Now, unless there be something in the fact that the drawers were joint drawers with Culbertson, we can perceive no difference in principle between their situation than any other drawers who in 287] good faith draw a bill, under the expectation and belief that the same will be met by some third person, as in the case of Lafitte v. Slatter, above cited. There is no fraud; and whether Culbertson had made himself a party to the bill or not, if it was in fact drawn for his accommodation, they had a right to look to him as the person who would see that funds were placed in the hands of the drawee to meet the bill at maturity; and if not met, they were entitled to notice so as to have had an opportunity immediately to take up the bill and proceed against Culbertson.

It is true, that if Culbertson had been the sole drawer of this bill, without assets in hand or any expected, no notice to him would have been necessary. And such seems to have been his position and relation to the holder of this bill, so that no notice was necessary to him, and he may be treated as having notice of the dishonor of this bill. Such being the situation of Culbertson, it is claimed, that inasmuch as Culbertson and his accommodation drawers forms but one party to the bill, being joint drawers, no relation or rights between them, not growing out of the face of the paper, can be set up as ground for requiring notice of non-payment; and all being but one party, notice to one is notice to all; and if notice is not necessary to one, it is not to the others.

But it is not true that the right to notice uniformly depends upon the fact whether the party is entitled to a remedy over on the bill itself, against another party to the bill. The drawer of a bill never has any remedy over on the bill itself, unless it has been actually accepted; and if presented for payment at maturity, he is entitled to notice of its dishonor. An accommodation indorser is, in general, entitled to notice, although the bill was drawn without funds, and the party for whose accommodation he indorsed is a subsequent indorser, and consequently not liable to accommodation indorser on the face of the bill. Brown et al. v. Maffey, 15 East, 216.

Notice to Culbertson, the drawers not being partners, would not not be notice to the other joint drawers. 3 Kent Com. (8 ed.) 135, notes b and 3; 4 Smedes & Marsh. 749; Story on Bills, sec. 299.

Wood v. Lessee of Ferguson et al.

Notice to one partner is notice to all, because each is the agent of all; and notice to an agent is notice to the principal. *Mere [288 joint drawers are not agents of each other in respect to notice.

But the fraud of Culbertson, in drawing without the expectation of meeting the bill, would not, we think, be tantamount to notice to his co-drawers, they drawing for his accommodation, under the belief that he would meet the bill.

In the case of Harris v. Clark, 10 Ohio, 5, it was held, that a demand upon one of two or more makers of a joint and several note was sufficient to charge an indorser. The presentation of a note for payment to two or more makers of a joint and several note, on the third day of grace, especially where the makers reside at a distance from each other, is attended with embarrassments which do not arise on the giving of notice of non-payment; and in holding that notice to one of two or more joint drawers or indorsers, not partners, can not be deemed notice to all, we do not touch the question decided in Harris v. Clark.

Demurrer overruled.

BARTLEY, C. J., and BRINKERHOFF, SCOTT, and SUTLIFF, JJ., concurred.

JOSEPH S. WOOD v. THE LESSEE OF WILLIAM FERGUSON Et al.

A patent for land issuing from the government of the United States, in the name of a deceased person, is void, and the title to the land designated in the patent remains in the government.

Where an act of Congress is subsequently passed, providing that, in each case, the title to the land "shall inure to and become vested in the heirs, devisees, or assignees of such deceased patentee, as if the patent had issued to the deceased person during his life," the title does not by relation so vest in the heirs of the deceased patentee that the statute of limitations will run against such heirs prior to the time of the passage of the curative act. Where twenty-one years have not elapsed subsequently to the passage of the curative act, such heirs are within neither the letter nor the policy of the statute of limitations.

ERROR to the district court of Guernsey county.

*The case is stated in the opinion of the court.

[289

Wood v. Lessee of Ferguson et al.

N. Evans, for plaintiff in error, cited Adams on Eject. 47; 18 Viner's Abridg. 290; 1 Johns. Cas. 81; 3 Cowen, 75; 12 Johns. 140; 8 Ohio, 87; 11 Ohio, 235.

B. S. Cowen, for defendant in error, cited Price v. Johnston, 1 Ohio St. 390; Blanchard on Stat. Lim., 1 Law Lib. 209; 5 Am. Com. Law, 93, 89, note; Carver v. Jackson, Pet. 83; 1 Phil. on Ev. 322-324; 3 Ib. 1236.

BRINKERHOFF, J. This was an action of ejectment, brought by the defendants in error, against the plaintiff in error, in the common pleas of Guernsey county, and appealed from thence to the district court of that county, where the plaintiffs below had a ver· dict and judgment, to reverse which this petition in error is prosecuted.

From the record, there appears the following state of facts:

Frederick Vernon, being entitled to land from the government of the United States for revolutionary services, died in 1795, or 1796. Six or seven years after his death-to wit, in 1802, a patent for the land in controversy was issued from the United States in his name. On the 20th of May, 1836, an act of Congress was passed, providing that, "in all cases where patents for public lands have been, or may hereafter be issued, in pursuance of any law of the United States, to a person who had died, or who shall hereafter die, before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assignees of such deceased patentee, as if the patent had issued to the deceased person during his life." U. S. Land Laws (part 1), 540.

In 1848, the heirs of Frederick Vernon, deceased, conveyed to the lessors of the plaintiff below, and in 1849, they commenced the action below. It does not appear that Vernon or his heirs were ever in actual possession of the land in controversy. Such is the title of the plaintiffs below.

The defendant below gave in evidence, but solely for the purpose 290] of showing the nature and extent of his possession and claim, a tax deed executed in 1824, to one McCullough, under whom he claims, and proved a continuous actual possession of the land by himself and his grantors from thence until the commencement