It was assigned for error that the second breach does not aver an eviction, and that in this particular the declaration was defective.

The usual or common covenant of seizin stipulated that the grantor in the deed was seized of a good and sufficient title and had right and authority to sell and convey. This covenant was in the present tense, and if the fact was contrary to the stipulation, the agreement was violated as soon as made, and a right of action, arose immediately. The common covenant of general warranty is in the future, that the grantor will warrant and defend the title. Courts of justice doubted whether the grantor could be called upon to perform this covenant, while the grantee was permitted to hold possession under the grant. The evil of this principle was, that if the title was defective, and the person who had better title, chose to lie still, the grantee could do nothing for his future protection and security. To remedy this mischief the statute was enacted. The mischief did not exist, where the deed contained a covenant of seizin in the usual form. If the grantee covenanted that his title was indefeasible, when it was not, or that he had right to sell when he had not, or that he was seized of a good title, when his title was defective, the grantee could have immediate remedy. If his deed contained those covenants which usually accompanied the covenants of seizin, as part of it, his case required no statutory provision. And it would be one to which the terms of the statute do not extend. It is neither within the mischief, nor the letter. And it would be unwarrantable to include it. The second breach is not well assigned upon common law principles. The court consider the law to be settled, that the breach ought to allege an eviction under a superior or better title to maintain an action upon the common covenant of general warranty. And it is also their opinion that the case is not within the provisions of the statute. The damages assessed are upon the three last counts; the judgment must therefore be reversed, and judgment given for the defendant upon the demurrer to the second breach.

HATCH v. BARR.

A deed describing the grantors as a corporation, but executed by the president of the corporation, in his own name, and under his own seal, does not pass the legal title from the corporation.

This was an action of ejectment, tried in the Supreme Court of Hamilton county. The case was as follows:

At June term of the Supreme Court in Hamilton county, in the year 1821, a judgment was recovered by the treasurer of state against the president and directors of the Miami Exporting Company, for 9618 dollars 27 cents. Upon this judgment execution issued, and was levied upon the property in dispute, the bank-house in Cincinnati; and the law not requiring property seized upon execution for a debt to the state to be valued, the plaintiff bid off the house for the sum of 250 dollars, at sheriff's sale. A deed of conveyance by the sheriff to

the plaintiff was duly executed, and upon these proceedings and this deed the plaintiff rested the cause.

The defendant produced a paper purporting to be a conveyance of the prop. erty in question to him by the president and directors of the Miami Exporting Company, dated the 8th day of June, 1821. In this deed the president and directors of the Miami Exporting Company were named as grantors. The attesting clause was as follows: "In witness whereof, I, Oliver M. Spencer, president of the said Miami Exporting Company, have hereto set my hand and seal," &c. Oliver M. Spencer, president of the Miami Exporting Company;" written opposite a seal of wafer and paper, with no distinct impression.

In connection with this deed the defendant produced a resolution of the board of directors of the Miami Exporting Company, made on the same 8th day of June, 1821, in the following words:

"Resolved, that the president of this institution be authorised and directed to sell and convey to John T. Barr, of Baltimore, by deed in fee simple, with cove nant of general warranty, the brick house and lot which was conveyed to the president and directors of the Miami Exporting Company by Martin Baum, by deed bearing date the 26th day of March, 1816. Also, one hundred and thirty-eight acres and one-tenth of an acre, in the fourth section of the third township, of the second fractional range in the county of Hamilton, and state of Ohio, being the same land that was conveyed to said company by the president and directors of the bank of Cincinnati, by deed bearing date the 8th day of February, 1821. Also, the house and lot late the property of David Brown, lying on Fifth street, in the town of Cincinnati, and being a part of lot, number 293, and which was conveyed to said Miami Exporting Company, by R. Ayres, sheriff of said county, by deed bearing date 23d day of June, 1820, for the consideration of the sum of ten thousand seven hundred and sixty dollars, in part discharge of the debt due from this institution to the said John T. Barr.

"Resolved, that the said president be authorized to execute to the said John T. Barr, a bond, with a condition, that if the said John T. Barr shall at any time within the term of one year re-convey to this institution the same property in the same manner, the conveyance shall be received, and the sum of ten thous and seven hundred and sixty dollars placed to the credit of the said John T. Barr on the books of this institution."

The defendant further offered to prove, in connection with the deed and resolution above stated, that the sum of ten thousand seven hundred and sixty dollars was paid to the bank at the time of making the deed, by a check in favor of the bank, drawn by the agent of John T. Barr, and charged to his account on the books; which fact of payment so made was admitted by the counsel for the plaintiff.

The defendant further offered proof, that the Miami Exporting Company had never, by any formal resolution, adopted a seal; but that the seal impressed. upon the paper in question was procured by the president, and had been used as a seal of the institution, which fact was also admitted by the plaintiff's counsel. The plaintiff objected to the paper, purporting to be a deed, being given in evidence to the jury, because not executed by the president and directors of the company, and under the seal of the corporation, and therefore not operative as a

conveyance. The court decided that the deed could not be given in evidence to the jury, and the plaintiff had a verdict.

The defendant moved for a new trial, on the ground that the court erred in not permitting the deed to go to the jury. And at his request the decision of this motion was adjourned to Columbus.

Wade and Hayward in support of the motion. Hammond, contra.

By the COURT.

The paper offered in evidence, purports to be a conveyance from the president and directors of the Miami Exporting Company, as grantors. It is executed by O. M. Spencer as president, in his own name and under his own seal, as president. The grantors named in the deed do not execute it. The person who executed it, had no interest in the subject conveyed, and is not named as grantor in the deed. It is therefore no conveyance. The motion for a new trial is overruled, and judgment entered on the verdict.

JUDGE BURNET, being a stockholder in the Miami Exporting Company, did not sit in this case,

LESSEE OF BOND v. SWEARINGEN.

An estate forfeited to heirs in consequence of a conveyance for a gambling debt, is taken and held by the heirs, subject to the debts of the grantor.

Whether the grantor in a voluntary deed be indebted at the time of the grant, is a fact to be found by a jury Where a party locates and surveys lands and dies before patent, and the patent afterwards issues to his heirs, they take by descent and not by purchase.

Where the ancestor conveys with warranty his heirs are estopped to claim the same land.

The owner of an entry and survey, has a right to dispose of, and alien the lands embraced in such survey; and where a patent afterwards issues to him or his heirs, whereby the legal title is perfected, it enures to the benefit of his grantee, and all persons claiming under such grantee, so as to perfect their title.

This was an action of ejectment, and came before the court upon a motion for a new trial, made by the plaintiff, and reserved in the county of Ross. As the opinion and decision of the court is confined altogether to the title of the defendant, so much only of the statement of the case, and the argument of the counsel, as relate to that title, are presented.

The suit was brought to recover a lot in the town of Chillicothe. The tract of land including the lot in question, was entered by N. Massie on the 27th of June, 1795, as in his own right-was surveyed on the 24th of December, 1796, and the plat and certificate of survey recorded in the surveyor's office, June 9,

1797.

On the 21st day of September, 1797, Nathaniel Massie conveyed the lot in question to Basil Abrams, by deed of general warranty.

Basil Abrams, on the 21st of May, 1801, conveyed the lot in question to John S. Wills, by deed of general warranty, for a consideration expressed of 1200 dol. lars. The real consideration was as proved and admitted at the trial, that Wills won the lot of Abrams at a game of billiards.

Soon after the execution of this deed Basil Abrams left the country, to which he never returned. On the 15th of February, 1802, an attachment against B. Abrams, as an absconding debtor, was sued out of the Common Pleas of Ross county, and levied upon the lot in question, upon which such proceedings were had that the lot was sold by auditors, and regularly conveyed, under which con. veyance the defendant claimed.

The debts of Basil Abrams, as found and certified by the auditors, amounted to 1999 dollars 22 cents.

In the year 1811, Nathaniel Massie deceased, leaving several children his heirs at law. After his death it was discovered that no patent had issued for the tract of land in which the lot is included, and a patent was obtained to his heirs, dated 31st December, 1814.

Upon the trial of the cause before the Supreme court of Ross county, the jury found a verdict for the defendant, and a motion was made for a new trial, upon the ground that the verdict was against law. The decision of the motion rested al. together on the validity of the defendant's title.

Leonard, for the plaintiff. Brush, Fitzgerald and Douglass, contra.

Opinion of the Court by Judge SHERMAN.

The result of the motion for a new trial in this cause must depend upon the question, which of the parties has a valid legal title to the premises in question. The defendant has obtained a verdict, and that verdict ought not to be set aside if his title papers, connected with the evidence in the cause, shew a subsisting legal title in him. In order to determine this question, it is necessary to ascer tain the effect of the deed from Basil Abrams to John S. Wills, of May 1st, 1801; the proceedings had under the attachment, at the suit of Reuben Abrams against B. Abrams, and the grant by the government of a tract of land including the premises in controversy, to the heirs of Nathaniel Massie, deceased.

The deed from B. Abrams to J. S. Wills, of the lot in question, dated May 1st, 1801, is admitted to have been executed upon a gambling consideration.

By the act of the territorial government, then in force, entitled "a law to suppress gaming," it is provided, "that all conveyances, &c. made for a gambling consideration, shall enure to the use of the heir of the bargainer, &c. and vest the whole estate, and all the interest of such person in the land so bargained, to all intents and purposes, in the heir of the bargainer, the same as if the bargainer had died intestate."

It is believed that this act of the territorial government has never received a construction by our courts.

It is contended by the plaintiff's counsel, that the lot in question, by virtue of this act, became forfeited to the heirs of B. Abrams upon the execution of the deed from him to Wills, and that they took the same discharged from all liability for his debts.

In the opinion of the court this construction is neither warranted by the words nor intent of the law. The legislature can, without doubt, attach for feitures to the commission of offences, and such forfeitures may be general,

including all the property of the offender, subject only to actual liens, or limited in amount or kind, and restricted by provisions for the benefit of creditors and others. Whatever may be the nature or kind of forfeiture, it is never carried by construction beyond the clear expression of the statute creating it.

When a deed is founded on a gambling consideration, the statute vests in the heir of the bargainer all his interest to all intents and purposes, the same as if such bargainer had died intestate, the law considers the bargainer per hoc vice as dead, the heir takes the same as if the ancestor, instead of executing the conveyance, had that moment died. The estate does not become forfeited, but the grant is to enure to the benefit of the heir of the grantor, and he takes the lands mentioned in the conveyance by virtue of the statute, the same as he would had they descended to him by the death of the ancestor. He takes as heir, and not as the grantee of government of a forfeited estate. The property vesting in him as heir he necessarily takes, with all the responsibilities and liabilities attached to that relation. The expression of the statute that the interest of the bargainer shall vest "in the heir the same as if the bargainer had died intestate," would be rendered vain and useless by any other construction than that the land so coming to the heir shall in his hands be subject and liable to all claims that it would had it descended to him by the death of the bargainer.

The construction contended for by the plaintiffs, would work manifest injustice in many cases. An individual who had obtained credit, and become indebted, could not well devise a more ready and easy way of protecting his property from his creditors than by conveying the same for a gambling consideration, if such conveyance was to enure to the use of his heirs, the natural objects of his care and bounty, to the exclusion of the clains of his creditor. The expression of a law should be clear, and the intent manifest, before a court could be justified in giving it a construction that would obviously protect fraud and deprive creditors of their just claims upon the property of the debtor, and such would be the effect of this law, if the construction contended for by the plaintiffs should prevail. The heirs of B. Abrams would hold this estate as forfeited to them by the act of their ancestor free from any liability to the claims of his creditors. We are satisfied such was not the intent of the terri torial government in adopting this law; but that it was intended to protect the improvident from gambling away their property to the injury of their creditors and heirs, and that to effect this purpose the statute prevents all lands conveyed for a gambling consideration from vesting in the grantee named in the deed, but makes such deed enure to the use of the heir of the grantor so that he shall take the lands subject to the same liabilitics he would, had he inherited them in the usual course of descent.

It will be perceived upon the perusal of this statute that it no where expressly prohibits gaming, or subjects persons guilty thereof to any species of judicial prosecution, and it is difficult to perceive how a forfeiture of lands should result from the doing of an act neither prohibited nor punished.

At the time Basil Abrams executed the deed to J. S. Wills for a gambling consideration, the real, as well as personal estate of the debtor, was subject to the payment of his debts. If he was living, his real estate, if it would not extend in 7 years for sufficient to satisfy, the judgments against him, might be levied on, and sold. And in case of his dying intestate, the whole real estate of