from whom the defendant purchased, had no power over them. He paid his money upon a mistake as to the consideration. The present complainants are not the parties to whom he paid it, or with whom he made the contract; and his right to recover back his money cannot be litigated with them, neither at law nor in equity. We can therefore make no decree with respect to the purchase money.

The amount paid for taxes stands upon a very different ground. These were chargeable by law upon the land, and the payment was a direct benefit to the complainants. It was their duty to pay. In case they failed to do this, the land was liable to be sold for the taxes. They have derived a benefit from the payment, and in equity ought to refund the money. In one sense the defenfendant is a mere volunteer in making the payment; but when the owner of land in such case omits to pay the taxes as they fal! due, he adopts the payment made by such volunteer, and as to that, constitutes him his agent, by recognizing his act. Perhaps a court of equity might not, in every case of such volunteer, and upon his application, decree a lien for the taxes; but where these taxes have been paid under an opinion that the person who paid them owned the land, and when the true owners came into equity to examine that claim of ownership, and to have it quieted, the rule that he who asks equity must do it, strictly applies. The court will not lend their aid to quiet the title, without securing to the defendant the moneys paid in preserving that title; moneys which the owners ought to have paid, and without the payment of which the land would have been lost.

The taxes assessed by the company are not to be distinguished from those assessed by the state. The whole, with interest, are justly duc, and the payment must be charged upon the land.

The commissions, or other expenditures necessarily incurred in the payment of the taxes, also constitutes for the defendant an equitable claim against the complainants. It is a charge inseparable from the payment of the taxes, which, had the complainants paid the taxes themselves, they must have incurred; and, therefore, upon obtaining a decree of this court to rescue their title from suspicion, they must repay this expenditure to the defendant.

The cause must be sent back to the county of Huron, with directions that the master commissioner take an account of the payments made for taxes, and expenses in making such payments, with interest upon each sum paid from the time of payment; upon which a final decree must be entered, upon the priciples here decided.

EDWARDS v. MORRIS.

He who seeks equity must do equity.

A party seeking to set up a contract different from the written one, upon which a judginent bas been had at law, must show an offer to perform the contract he claims to establish, at the time it ought to have been performed, also a readiness still to perform.

An obligation to pay in notes of a specific bank, must be paid in the notes of that bank, or their numerical value in money. Their value in market cannot be substituted.

A contract for the purchase of real estate will not be rescinded upon stale objections to the vendor's title, the vendee remaining in undisturbed possession.

The bill had a double aspect, each containing separate and distinct matter no wise connected with the other. It states:

1st. That on the 25th day of December, 1819, the complainant purchased of the defendant a certain farm and distillery, in Hamilton county, for the sum of eight thousand dollars, to be paid in different instalments, the two first of which, amounting to four thousand dollars, had been paid;--that the third instalment for two thousand dollars was to be paid on the first of February, 1822, and the fourth for the same sum, was to be paid on the first of February, 1823, and that for these several sums of money the complainant executed to the defendant his several promissory notes of hand promising to pay the sum of money mentioned in each, in current bank notes of the city of Cincinnati;—that the defendant previous to said purchase stated to the complainant, he would receive in payment the notes of the Miami Exporting Company, for the purchase money, and at the time of executing these notes, the complainant supposed that they contained a stipulation to ray only in the notes of the Miami Exporting Company, and that he would not have executed them had he understood otherwise :That the two first instalments, for which notes were also given, the said defendant had been paid according to the terms of the contract as understood by the complainant :-That when the third note became due, the defendant informed the complainant he would receive no funds as payment, other than notes current as cash in Cincinnati, and that at that time the notes of the Miami Exporting Company had depreciated to twenty five or thirty cents on the dollar :--That the defendant had brought suit on the said third note, due February 1, 1822, in this court, and had recovered judgment thereon for the amount thereof and in

terest.

24. That the land purchased by the complainant of the defendant was the north-east quarter of section 21, in the 4th township, and 2d fractional range of townships, on which the complainant had paid for thousand dollars, estimated by him at two thousand dollars, and which, as he alleges, at a present cash valuation is about as much as it is worth, and that since the said purchase he has discovered that the title to the same is not complete and perfect :-That on the 20th of June, 1795, it was originally conveyed by John C. Symmes, but the conveyance never proved or acknowledged :--That in the year 1787, John C. Symmes sold, by contract on record, a large quantity of lands to one Benjamin Stites; that about the 1st of February, 1793, he acknowledged in writing, to have received a large sum of money on said contract; and that 10,000 acres of the land for which the money was paid laid around Columbia :-That on the 17th day of December, 1787, the said Symmes gave to said Stites a certificate that he had entered or located 10,000 acres on the Ohio and Little Miami; that these several papers contain evidence that said Symmes could have no authority to convey said lands, except from said Stites, and that the said quarter section is contained within the said tract of 10,000 acres :-And prays an injunction on said judgment at law, until the title is perfected; that the contract may be rescinded; that the money already advanced to the defendant be refunded to the complainant; and thai, when the title shall be perfected, an account taken of the value of the notes of the Miami Exporting Company at the time the contract was made, or at the time the said notes became due; and a prayer for general relief. The defendant demurred.

Wade and Hayward in support of demurrer. Este and Hammond, contra.

Opinion of the Court by Judge HITCHCOCK.

The prayer of the bill in this case is to enjoin a judgment at law, rendered at the last term of this court, and also to procure a rescision of a contract. Two reasons are assigned why the court should interfere 1st. A mistake in the terms of the note upon which the judgment was rendered. 2d. A doubt as to the title to the land conveyed by the defendant to the complainant, which land was the consideration of the note.

The facts set forth in the bill are admitted by the demurrer, and the question to be determined is, whether there is sufficient matter to justify the interference of a court of chancery.

It is the peculiar province of chancery to relieve against fraud, mistake, or accident. But how far parol testimony can be admitted to prove mistake in a written instrument, has been matter of much altercation and doubt. Mistakes in matter of fact it seems may be rectified, and the opinion of the court in the case of Hunt v. Rousmanier's administrators, (8 Wheat. 174) goes far to estab lish the doctrine, that where the parties through a mistake and ignorance of the law, execute a writing which does not carry into effect their contract and intention, that the true contract and intention may be enforced in chancery.

In the case before the court the alleged mistake consists in this; the purchase money, which was the consideration for which the note was given, was to have been paid in notes of the Miami Exporting Company. The note was to have been made thus payable, whereas in fact it was made payable in "current bank notes of the city of Cincinnati." The complainant understood that he was to pay in the numerical value of the notes-If in consequence of this mistake the complainant has sustained an injury, he ought to be relieved.

It is an invariable rule in chancery, that he who secks equity must do equity. Suppose the notes referred to had been drawn payable in the notes of the Miami Exporting Company, and there had been no mistake, what must the complainant have done to have defended himself at law, and to have secured to himself the privilege of paying in the notes of that bank? He must have tendered the notes on the day, and ought also to have brought them into court. The mistake, however, having happened, which rendered it proper that he should come into a court of chancery, what ought he to do here? The contract was, that he was to pay on a particular day, the sum named in the obligation, in a particular description of bank notes. He ought then to show that he tendered these notes at the time specified, and he ought to bring them into court that the opposite party may receive them. The notes, however, are not brought into court, nor is there any pretence that they have been tendered. The complainant then does not appear to be ready to do that equity which he requires of the defendant, and on this ground is not entitled to the relief prayed for. The circumstance that the defendant, some time before the promissory note fell due, stated that he would not receive those bank notes in payment, cannot excuse the complainant in not making the tender.

It is claimed that an account should be taken of these notes, and that the complainant should only be made liable for their specie value. This cannot be done-bank notes are considered as money. The holder has a right to look to

the banks which issue them for their numerical value in specie, and cannot be compelled to take for them a value fixed by shavers and brokers. The ability or inability of the bank to pay, ought not to be taken into consideration. The doubt as to the title to the land grows principally out of an old contract entered into between Symmes and Stites in the year 1787. This contract was made before Symmes had any interest in the land. His contract for the purchase from the United States was made in the year 1788, and he obtained his patent in 1794. The deed from Symmes for the quarter section in controversy was executed in 1795. It is objected to this deed, that it was neither acknowledged nor proven. However, when it has been accompanied by a possession of twenty-nine years, it is pretty good evidence of title. Neither this defect in the deed, after so long a continuance of possession under it, nor the bare possibility that there may be an attempt to enforce the contract at some future period, which contract was made almost forty years since, is sufficient to justify the court either in enjoining the judgment at law or rescinding the contract.

The demurrer is therefore sustained, the injunction dissolved, and the bill dismissed with costs.

STUMP v. ROGERS ET AL.

Security may proceed against principal in equity to have his estate subjected to the payment of the debt, without making payment himself, before commencing his suit.

This was a bill in chancery adjourned here from Pickaway county. The facts material to be reported were as follows:-In the year 1816 the complainant and others endorsed a note for the defendant, W. Rogers, which was discoun ted by the bonk of Chillicothe. It was not paid, and seperate suits were brought, and separat judgments rendered. Part of the amount was made upon execution against W. Rogers, and part against the other endorsers. Nothing was paid by the complainant upon the judgment against him. The bill was brought to subject certain real estate, charged to have been fraudulently transferred to the defendant, Jonathan Rogers, through the interposition of a court of Chancery, but which was justly liable to the payment of the debt, as the property of Wil. liam Rogers. The answers denied the fraud, and the question of fact in relation to it was earnestly litigated.

Irwin, for the complainant. Scott, for the defendants.

The court decided the question of fraud in favor of the complainant. Whether the complainant could come into a court of equity to charge the principa debtor's estate with the debt, not having acquired at law a right to sue the principal by payment of the money, was a question which arose in the consideration of the cause; and the court hold, that a security might ask a court of Chancery to aid in subjecting the estate of the principal to the payment of the debt, without first advancing or paying the money, as he must do before he could sue an action at law.

MILLS v. NOLES.

The court of Common Pleas cannot try the facts in a cause without the consent of both parties. In such case an appeal lies though the trial was irregular.

The question in this case arose upon a motion to quash an appeal from the court of Common Pleas of Perry county. to the Supreme court. It came up on a bill of exceptions and was referred for decision here.

Before the meeting of the court of Common Pleas the plaintiff notified the defendant that he did not purpose to try the cause: but meant to suffer a nonsuit and appeal. Accordingly, upon calling the cause in the Common Pleas, the plaintiff was nonsuit. Afterwards a suggestion being started whether an appeal would lie from a voluntary nonsuit, the plaintiff, during the same term, moved to set the nonsuit aside, which was done. He then proposed to submit the cause to the court, to which the defendant objected, but the court overruled his objection and proceeded to hear the cause; the plaintiff offering no proof. Judgment was given for the defendant, from which the plaintiff appealed.

Irwin in support of the motion to quash.

By the COURT.

The court of Common Pleas ought not to have taken upon themselves the trial of the facts of the cause upon submission, without the assent of the defendant. It is only where both parties consent that the court can try the cause. But this mistake cannot be corrected upon a motion to quash.-Here is a formal decision of the cause, and a judgment rendered from which the appeal is regularly taken. It cannot be quashed.

GREENE v. GREENE, ET AL.

The widow of a deceased partner is not entitled to dower in lands purchased and paid for out of the partnership funds, under articles stipulating for the sale of the whole partnership property for the payment of debts, and used exclusively in carrying on their trade, the partnership being insolvent, and the deceased partner greatly indebted to the firm.

This was a bill in chancery brought by the complainant, the widow of William Greene, deceased, to recover dower in certain lots in the city of Cincinnati. The facts in the case were agreed by the parties to be as follows:

On the 25th May, 1818, William Greene, deceased, the husband of the complainant, entered into partnership with the defendants, to erect and carry on a brass and iron foundry in Cincinnati.

The articles of co-partnership stipulated, among other things, that on the