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the city council, did order and direct and cause the said streets and alleys to be dug down, torn up, and the water pipes, &c. therein located, to be dug up and destroyed, &c. and compelled the Cincinnati Water company to replace their pipes, &c.

The defendants demurred generally. The court of common pleas sustained the demurrer, and the plaintiff's appealed to this court,

Storer and Fox, in support of the demurrer. Hammond, contra.

By the COURT.

The plaintiff might perhaps have rested his title upon his possession, but he has chosen to set out his title, and he must therefore set out a good title. (1 Ch. Pld. 215.) He claims title under an ordinance of the city of Cincinnati, and from his own showing it appears, that his rights depend "upon certain terms in said ordinance expressed." It does not appear what those terms are, or whether they are such as give him any rights.

Demurrer sustained.

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* A plaintiff, who is to recover upon the strength of his own case, is to show that sufficiently, to entitle himse.f. (13 East. 112. 1 Bos, and Pul.97.)

REEDER, ET AL. v. BARR ET AL.

A patent was issued to N. "as assignce of the administrator of R. H. deceased," such recital is sufficient to put a subsequent purchaser from the patentee, upon enquiry for the rights of the heirs, and he must at his peril, as certam whether those rights have been extinguished.

This was a suit in chancery, reserved for decision by the supreme court in Hamilton county.

The bill sets forth, that the complainants are the heirs at law of one Henson Reeder, who died in the year 1811: That some time in the year 1810, Henson Reeder purchased a certain lot of land in the city of Cincinnati, of the United States, and paid up a part or the whole of the purchase money, and obtained a certificate therefor, in the usual form, and took possession thereof. Sometime after the death of Henson Reeder, Samuel Newell set up some claim to said lot, as assignee of the administrator of Henson Reeder; and by falsely representing himself as such assignee, obtained a patent for the lot in his own name: That the administrator of Henson Reeder never sold, directly or indirectly, said certificate, or any interest whatever in the lot, to Newell, or any other person, and had no power so to do: That Newell took forcible possession of the lot, and retained the same until 1823, when it was sold upon execution, as the property of Newell, to the defendants, John T. Barr and Thomas Welch.

The bill also charges, that the defendants, Barr and Welch, when they purchased, had notice that Newell claimed title only as assignee of the administrator of Henson Reeder; that his title is so recited in the patent, and knew also that

said administrator did never, in fact, assign any interest in the lot to Newell. It is also charged, that the patent was fraudulently obtained, and the President of the United States imposed upon.

The patent was issued on the 15th of August, 1816, to Newell, as assignee of the administra or of Henson Reeder, deceased. The bill prayed for an account of the rents and profits, and for a reconveyance of the title.

The defendant, Barr, filed his plea in bar, alleging, that on the 8th of December, 1819, Newell, being in the quiet possession of the lot, mortgaged it to Barr and Welch, for a valuable consideration: that the mortgage became forfeited; a scire facias issued; a judgment was rendered, and the lot was taken in execu tion, and sold by the sheriff to Barr and Welch, and conveyed to them by the sheriff, on the 26th of February, 1823: That Barr and Welch took possession; and on the 5th of October, 1826, Welch, for a valuable consideration, conveyed all his interest in the lot to Barr, who has continued the possession ever since: That he had no notice whatever of the claim of the plaintiffs, or that Newell claimed title only as assignee of the administrator of Henson Reeder; or that his title was so recited in his patent; or that the administrator had not assigned the title of said lot to Newell, at or before the time when he, the said Barr, acquired his title, as herein set forth; and that he was an innocent purchaser, for valuable consideration, and without notice.

To this plea the plaintiffs filed a general replication.

The defendant, Newell, answered, denying all fraud, and disclaiming title, the lot having been sold upon execution, as set forth in the plea in bar. No testimony was taken.

Storer and Fox, for complainants.

By the COURT.

The patent was issued to Newell, as assignee of the administrator of Henson Reeder, deceased; and the only question is, whether this disclosure of the rights of the patentee, and of the manner in which they were acquired, is sufficient to charge a subsequent purchaser, with notice of the equitable rights of the complainants, as heirs at law of Henson Reeder. The true rule upon this subject appears to be, "that the law imputes that notice, which, from the nature of the transaction, every person of ordinary prudence must necessarily have." (13 Ves. 120. Mad. ch. 327. Newland, 511.)

If, in the investigation of a title, a purchaser, with common prudence, must have been apprised of another right, notice of that right is presumed. Here, Barr, in tracing his title, must have seen from the patent, that Newell's right was derived from an administrator, who possessed no title to the land himself, and whose deed could be available only by a previous compliance with certain legal formalities. If the assignment of an administrator, per se, conveyed the equitable rights of the intestate, the purchaser might stand in a different situation. As it is, we are of opinion, that the recital in the patent, is sufficient to put a man of ordinary prudence to an enquiry for the rights of the heirs; and that a subsequent purchaser must, at his peril, ascertain whether those rights have been regularly extinguished.

Authorities are cited to show, that presumptions of regularity are to be made in favor of public officers. (3 East. 200. 19 John. 347.) And that the existence of a grant is sufficient ground to presume that every pre-requisite has been performed. (9 Cranch, 98. 5 Wheaton, 304.) If this grant were a simple conveyance to Newell, his assignees might, perhaps, claim the benefit of these rules; but the grant, upon its face, shows that the heirs of Reeder were the owners of the estate, after the death of their ancestor; and it is going too far to say, that there is a legal presumption, not only that the officers of government have performed their duties, but that the rights of the heirs of Reeder have been divested, by a judgment of a court of competent jurisdiction. (a) Plea overruled.

(a) Purchasers under letters patent, reciting a trust, are bound to take notice of the trust at their peril. [1 Ves. 261, 319. 1 Ch. Ca. 258.] So a purchaser under persons authorized by statule to sell, is presumed to know the nature and extent of the authority, and purchases at his peril. [3 J. C. R. 344.]

LYTLE, ET AL. v. THE CINCINNATI MANUFACTURING CO.

Money made upon a junior judgment, in life, cannot be distributed among elder judgments, upon which executions have not been issued or levied within five years, and which have not been revived.

Certiorari to the court of common pleas of Hamilton county, to reverse an order for the distribution of certain monies made upon execution.

At November term. 1829, the sheriff returned, that he had made twenty-six thousand eight hundred and sixty dollars upon an execution, issued on a judg. ment in favor of Lytle and Avery, against the Cincinnati Manufacturing Company. Upon this return, several other judgment creditors appeared, and claimed this money or a part thereof, and founded their claims upon the following state of facts:

October 12th, 1820, the Miami Exporting Company recovered a judgment. against the Cincinnati Manufacturing Company for seventeen thousand eight hundred dollars. On the same day, Samuel Davis, James Findlay, and Jacob Wheeler recovered a judgment against the same defendants, for ten thousand two hundred and thirty-six dollars and fifty cents. On the 27th of December, 1820, Lytle and Avery recovered a judgment against the same defendants, for forty-nine thousand six hundred and forty-five dollars and fifty-nine cents.

There was also another small judgment, against the same defendants, in favour of Henry Hafer, which, by the agreement of all parties, was en. titled to a preference, and about which there was no dispute. Upon the other three judgments, executions were issued, and returned as follows:

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Al. pl. vendi.

Sept. 10, 1829.

This sale, and the val

uation, were set aside, by consent, Sept. 3, 1829. Sold, Nov. 16, 1829, to G. W. Jones, A. gent U. S. Bank, for twenty-six thousand eight hundred and sixty dollars, the money now in controversy.

The assignees of the judgment of Lytle and Avery, against the Cincinnati Manufacturing Company, also offered in evidence a mortgage of the promises levied upon, dated December 11, 1820, executed by William Lytle, William H. Lytle, and Timothy Kirby, in their capacity as trustees of the Cincinnati Manufacturing Company, to William H. Lytle and Henry Avery, to secure the payment of forty-eight thousand eight hundred and six dollars and eighty. two cents, This mortgage was recorded January 9th, 1821, and on the 13th of April, 1826, was assigned by Avery and Lytle to the bank of the United States.

Also, a notice, dated December 21, 1820, signed by David E. Wade, president, pro tem. and William Oliver, cashier, served upon the Cincinnati Manufacturing Company, notifying them that the Miami Exporting Company, on the 25th of December, then next, would take judgment against the Cincinnati Manufacturing Company, upon the same debts for which the judgment had been rendered in favour of the Miami Exporting Company, against the Cincinnati Manufacturing Company; and that at the date of this notice, Wade and Oliver acted as the officers of the Miami Exporting Company.

Also, a declaration in assumpsit, signed by Este and Storer, as attorneys for the Miami Exporting Company, against the Cincinnati Manufacturing Company, founded upon the same debt, and served upon the latter company at the same time, with the above note.

Also, a bill in chancery, filed in the supreme court of Hamilton county, at June term, 1821, by the Miami Exporting Company, against Davis, Findlay, Wheeler, and others, in which the Miami Exporting Company charged, that Davis and Wheeler, pretending to be two of the trustees of the Cincinnati Manufacturing Company, on the 2nd of September, 1820, made a warrant of attorney to Joseph S. Benham, Esq., by virtue of which, he confessed the judgment in favour of the Miami Exporting Company, against the Cincinnati Manufacturing Company: That the Miami Exporting Company were never consulted by Davis and Wheeler, as to the confession of said judgment, or the warrant of attorney to Benham; nor had they any knowledge thereof until after the judgment was confessed; and they deny any and all right in Davis and Wheeler to make said power of attorney in behalf of the Cincinnati Manufacturing Company; and pray, that the said judgment be decreed null and void, and completely vacated, for the want of authority in Davis and Wheeler to make

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