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Loring v. Melendy et al.

judgment may operate as a lien, the defendant or judgment debtor must have a legal title. The fact that in equity the grantor would have a right to treat the deed as a mortgage, will in no sense authorize it to be treated as a legal estate. The dis tinction is between an equitable and legal mortgage.

In case of a legal mortgage, which the court, in Baird v. Kirtland, define to be a mortgage, where the condition of defeasance constitutes a part of the deed, although the mortgagor, *in [357 possession, is treated as the real owner at law, and possesses an estate to which judgment liens attach, and wbich may be sold on execution at law, yet, in the case just cited, it is expressly declared that when the deed is absolute upon its face, no such legal estate remains in the grantor. The express point of the case was, that where the deed was absolute upon its face, the grantor bad no interest upon which a judgment lion could attach.

Elliott, then, takes nothing by virtue of his judgment lien and lovy, because neither can reach an equity. Melendy having the legal estate by virtue of his deed, which in equity is a mortgage, is entitled to have his debt first satisfied.

Loring, having first subjected Chester's equity, is entitled, by reason of his superior diligence, to bave bis judgment first fully satisfied after Melendy; and Elliott, and the other judgment creditors, will come in, pro rata, for the residue.

This disposes of the whole caso, although it was reserved to determine the question, whether a perpetual lease was to be regarded as a mere chattel, or as "lands and tenements," to which judgment liens attach.

Whether we call it lands and tenements, or a chattel, we should arrive at the same result, respecting the rights of these parties, which we have above declared. For, although a perpetual lease may be called a chattel, yet, for all purposes of conveyance or sale, it has always been treated as land capable of being charged, incumbered, and disposed of, only in the same manner.

In the case of the Widow and Heirs at Law of William Rey. polds v. The Commissioners of Stark County, 5 Ohio, 204, the court say: "A lease is personal property, although it contains a stipulation that it shall be renewable forever.”

But it has been the policy of our law for many, and, in fact, for most purposes, to treat permanent leases as lands; such has always been the case for purposes of sale and transfer; and the question VOL. XI-20

305

Loring v. Melendy et al.

is now, whether such leases are not put upon the footing of lands for all purposes. 358] *By the act of June 20, 1821, Chase's L. 1185, it is de. clared that permanent leases, in cases of judgments and execu. tions levied thereon, shall be considered as real estate, and shall be governed, in their sale, by the laws applicable to the sale of real estate then in existence, or such as may be enacted. By the act of March 5, 1839, Swan's Stat. 289, permanent leasehold estates, for the purposes of descent and distribution, and for sales on execution, are subject to the same laws that apply to estates in feo.

Since the passage of this last act, we may feel ourselves admonished by the uniform policy of our legislature, by calling things by their real names, to harmonize our whole system of land jurisprudence. To withdraw permanent leasehold estates from their anomalous position, between chattel and realty, and by calling them what in truth they are, lands, we relieve them from all doubt as to the principles and laws which shall control them, and assign to them a certain and fixed place in the law. A permanent leasehold estate is not a chattel, but is, in truth, land, carrying the fee. Such is the nature of the estate, and so it has been considered and treated in the legislation of our state. We therefore declare that permanent leasehold estates are lands subject to all the rules and laws which attach to land for all purposes, and that judgment liens attach to them as lands.

In thus emancipating permanent leasehold estates from a name tou narrow to convey their idea, and rules too contracted for their control, we are only carrying out the policy of our legislature upon this subject. And although this case might have been disposed of without deciding this point, yet as it fairly comes up, and was the point upon which the case was reserved, we have thought proper to put this doubtful question at rest. Decree for complainant.

306

Lessee of Northrop v. Devore.

*The LESSEE OF Tuomas J. NORTHROP v. JAMES DEVORE. [359

THE LESSEE OF DEMAS ADAMS AND WILLIAM L. Casey V. ANDREW

BAINTER.

When a sale for taxes is made on the 10th day of November, under the statute

of 1822, and the order of confirmation describes a sale made on the 10th, 11th, and 12th days of December, no title passes.

THESE were actions of ejectment from the county of Muskingum, and were submitted to the court upon an agreed statement of facts.

HARPER, Adams, and Stilwell, for plaintiffs.
GODDARD and CONVERSE, for defendants.
No arguments were furnished to the reporter.

LANE, C. J. In these cases it is necessary to notice but one point. The plaintiff holds the title claimed from the patentee, and is entitled to recover, unless his right has been extinguished by a tax sale. The sale was made under a judgment rendered inder the statute of 1822, to recover taxes delinquent previous to 1820. The statute required a judgment, advertisement, sale, confirmation, and deed. Chase's Stat. 1216. The judgment was rendered in the common pleas of Muskingum, at the August term, 1824. The land was advertised for sale, and sold on November 10, 1824. At the December term, held on December 12, 1824, an order of confirmation was made, reciting that the sale was made on the 10th, 11th, and 12th days of December.

This mistake in the description of the time of sale appears to us a fatal defect in the defendant's title. Although it is argued that no other sale was made, except that on the 10th of November, *and the time is probably misdescribed through the inad- [360 vertence of the clerk, yet, as the order stands, it affords no evi. dence that the sale of November was ever acted upon by the court. Judgment for plaintiff.

307

Woodward v. Suydam and Blydenburg.

EBENEZER G. WOODWARD V. SUYDAM AND BLYDENBURG.

Where a commission merchant, from time to time, sends an account of sales

to his principal, who makes no objection to the sales, and draws for the balance of the account rendered, it is a ratification of the sales, and the principal can not recover for any alleged violation of his instructions as

to the terms of sale. The value of goods sold by a commission merchant, contrary to the instruc

tions of his principal, may be recovered, under the common count for goods sold and delivered.

This was an action of assumpsit from the county of Knox, reserved on a motion for a new trial by the defendants, against whom a verdict was rendered on the circuit.

The case was argued, in support of the motion, by H. B. CURTIS, and GODDARD & CONVERSE, and by C. DELANO and H. STANBERY, contra.

The material facts and points made are stated in the opinion of the court.

WOOD, J. The declaration contains four counts. In the first, second, and third counts, the defendants are charged, as factors and commission merchants, with having received 1,392 barrels of flour of the plaintiff, on consignment, with instructions not to sell for less than eight dollars per barrel, and with having disregarded such instructions, to the damage of the plaintiff. 361] *The fourth is a common count, for goods, wares, etc., sold paid, and delivered, work and labor done, money lent, had and received, and on an account stated. Plea, non assumpsit.

The reasons filed for a new trial are:
1. The verdict is contrary to the evidence.
2. The damages are excessive.
3. The evidence was not admissible under the declaration.

On the trial of the case, it appears to have been proved, in substance, that, on May 28, 1838, the defendants were instructed by the plaintiff not to sell his flour, when it should arrive, for less than eight dollars per barrel cash. The defendant resided in the city of New York, and, between the 10th and 20th days of June, the flour was arriving in the city, and the defendants put

Woodward v. Suydam and Blydenburg.

etc.

ting it in store in their upper lofts. The defendant, Blydenburg, about this time, showed it to a Mr. Norton, representing it as a superior article, saying he was waiting a rise in the market, and was not at liberty to sell it at less than eight dollars per barrel, according to the plaintiff's directions,

On June 19, 1838, the defendants wrote to the plaintiff that all his flour was in storo, and they were waiting the market and his orders. On the 3d of July, they again wrote to the plaintiff, advising him of the market, and desiring his opinion, as to sales,

On the 16th of July, the defendants again wrote to the plaintiff that his letter of the 10th of July was received, and his intention, in relation to the flour, should be attended to. On the 26th of July, they again wrote, they had stored all the plaintiff's flour, and, of course, had not offered any for sale, except fifty barrels of Norton's brand, which they had sold on the 15th, with a view to ascertain bow it kept, and should make no further sales until they heard from him.

On the 10th of July, the plaintiff wrote to the defendants, amongst other things, “I wish you to hold on to my flour, unless you can obtain somewhere in the neighborhood of eight dollars per barrel, etc.; I sball be in New York in August." *On the [362 19th of July, the plaintiff again wrote to the defendants, to hold on to his four until Augist or September, if it should not advance before, and again repeated, he would be in New York in August.

Tbe flour was sold in New York, between the 10th of July and 13th of September, for $9,811.32, or a fraction more, on an average, than seven dollars and seven cents per barrel. It is pretty clearly shown that the plaintiff arrived in New York in August, and, while there, 483 barrels of this flour were sold by the defendants; that the plaintiff had frequent interviews with the defendants, wbile in the city; that 813 barrels of the flour bad been sold be. fore the plaintiff arrived, and 96 after he left the city. The plaintiff appears to bave received of the defendants, wbile in New York, $1,500; and there is no evidence of any dissatisfaction, expressed by him to the defendants, whilst there.

On the 17th of September, the defendants transmitted to the plaintiff an account of all the sales of the flour, and the plaintiff drew for the balance in their hands, and expressed no disapprobation. The evidence also shows that, in September, flour advanced

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