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estate was extensively benefitted, and a considerable property divided among the children and heirs of Israel Ludlow, the defendants in the case.

The bill farther caargel, that the nears of Lullow had prosecuted an ejectment against Parks for a tract of twen.y-seven acres, of which the complainant's grounds were part, upon which they and recovered a judgment, in the supreme court of the state, and threatened to take out a writ of possession, and dispos sess the complainant.

The bill further charged, that subsequent to the recovery in ejectment, J. D. Garrard, one of the defendants, had entered into a covenant with C. Parks, to indemnify him, upon all his covenants of warranty, for sales of parts of said twenty-seven acres, by way of compromise of the dispute, which comprom se operated as a fraud upon Parks' covenant to complainant.

The bill also alleged, that the plat of the city, used at the trial of the eject. ment, to prove that the twenty-seven acre tract in dispute, was, in May, 1804, within the limits of the city, was entirely erroneous; and that a true copy, made part of the bill, shows that said ground, at the time stated, was not within the limits of Cincinnati, as it then existed.

All the documents referred to, were made exhibits; and the prayer was for a perpetual injunction, for a release of the title, and for any benefit complainant might claim of the covenant with Parks.

The order of the probate court, of May, 1801, referred to in the bill, is in these wrods:

"Administrators of Israel Ludlow, deceased, exhibit an account current of said estate. John Ludlow and James Findley sworn, and pray order to sell the real estate, to satisfy the debts, &c. Court grant the prayer of the administra. tors, excepting and reserving the farm and improved lands at Cincinnati, with the houses and lots in Cincinnati.”

The order of December, 1810, also referred to, is in these words. "17th of December, 1810.-Petition of the administrators of Israel Ludlow, deceased, &c, for to sell real estate, to satisfy the demands, &c., which this court grant." The covenant between Garrard and Parks, referred to, is in these words: "Memorandum of an agreement, made and entered into this twenty-sixth day of January, in the year of our Lord one thousand eight hundred and thirty, between Culbertson Parks, of the city of Cncinnati, and state of Ohio, of the first part, and Jepthah D, Garrard, of the same place, witnesseth: That the said Culbertson Parks, for and in consideration of the covenant of the said Jepthah D. Garrard, hereinafter mentioned, covenants and agrees to and with the said Jepthah D. Garrard, his heirs, executors, or administrators, that he will make and execute to the said Jepthah D. Garrard, his heirs and assigns, on demand, a deed of release or quit-claim, to the following described property, in the city of Cincinnati, to wit: a certain part of lot, number one hundred and four, in Cincinnati, as the same is now occupied by Robert Kennedy and Wm. Conclin, measuring about thirty-eight feet on Main street, and running back to the alley, about one hundred and ninety feet. Also, a certain other lot, bounded as follows: North by Third street, as extended; east by a lot occupied by Geo. Leiby; south by Second or Columbia stree, extended; and west by the section line of the seventeenth fractional section, on which the city is in part laid out. Also, a certain other lot, bounded as follows, to wit: north by Fifth street; eas

by the division line between the said Parks and a lot of twenty-seven acres, late the property of Ormsby and Stanley; south by Thind street, extended; and west by the east line of a lot heretofore sold to Messrs. Phillips, Tatem, and Speer; excepting there from SO much of said lot as was heretofore deeded to Caleb Fage. ly. And the said Culbertson Parks covenants and agrees to and with the said Jepthah D. Garrard, to deliver up to the said Garrard the quiet and undisturbed possession of the said promises, above mentioned, whenever the same shall be demanded. And the said Jepthah D. Car.ard, on his part, covenants and agrees to and with the said Culbertson Parks, his heirs, executors, or administrators, that he will indemnity and save harmless the said Culbertson Parks, his heirs, executors, or administrators, on all of his, the said Parks', covenants contained in certain deeds, heretofore made to George Lieby and others, for parts of a twenty-seven acre lot, which lie between Third street and the Ohio river; which said parts of the said lots have been recovered from the said Lieby and others, in an action of ejectment, by the heirs of Israel Ludlow, deceased, in the supreme court of the state of Ohio. And the said Garrard further covenants and agrees to and with the said Culbertson Parks, his heirs, executors or administrators, that he will pay all the costs that may have accrued on the suits for the said twenty-seven acre lot, and the said lot on Main street, in the circuit court of the United States, and in the court of common pleas, and supreme court of Hamilton county, and state of Ohio, as the same shall be taxed by the clerks of the said courts And the said Garrard further covenants and agrees to and with the said Culbertson Paiks, that he will pay the fees that may now be due and owing by the said Culbertson Parks, to his counsel, Messrs. Benham, Este, Wright, Caswell and Starr, provided they do not exceed five hundred dollars in all; and if they exceed, in the aggregate, the sum of five hundred dollars, the said Parks is to pay the excess. And the said Garrard further covenants and agrees to pay to the said Parks, the sum of one thousand five hundred dollars, upon the delivery of the deeds of release, and the quiet and undisturbed possession of the premises, by the said Parks to the said Garrard. And the said Garrard further covenants and agrees to and with the said Culbertson Parks, his heirs, executors, or administrators, that he will indemnify and save harmless the said Culbertson Parks, his heirs or assigns, against any and every claim which the heirs at law of Israel Ludlow, deceased, may have against the following tract or parcel of land, now in the possession of the said Parks, to wit: begin. ning at the intersection of Fifth and Mill streets, thence eastwardly with Fifth street to the west line of a lot, deeded by the said Parks to Phillips, Tatem, and Speer; thence south with their line, to Third street, extended; thence with Third street to the east line of Milll street; thence with Mill street to the beginning. In testimoney whercof, the said parties have hereunto set their hands and seals, the day and year first above written.

Witness: DANIEL GANO.

C. PARKS, [Seal.]

JEPTHAH D. GARRARD. [Seal.].

It is the agreement, that this article is in no manner to affect the recourse of the said Parks upon his deed from the administrators, for the said lots.

J. D. GARRARD.”

Recorded 22nd February, 1830.

Cincinnati, June 17th, 1831: A true copy from record No. 31,

Hammond and Garrard, in support of the demurrer.

OPINION OF THE COURT, by Judge COLLET.

page 407.

Gaines, contra.

Does the complainant, in his bill, state such facts as will authorize this court to enjoin the proceedings in the action at law? The complainant, by his bill, relies for relief on three grounds:

FIRST: That there is a plat, in the clerk's office of Hamilton county, which shows that the land in dispute wassituate beyond the bounds of the town of Cin cinnati, when the order to sell lands, of May term, 1804, was made by the court of common pleas; and, consequently, as it was unimproved, was embraced by that order: whereas, on the trial at law, the plat exhibited in evidence, was erroneous, and showed that the premises in controversy were situate within the town of Cincinnati, at the time the said order to sell was made, and consequently, not embraced by that order.

SECOND: That the sale of the land was necessary for the payment of the debts, due from the estate of Ludlow; that it was fairly made by the adminis trators, for its full value, and the purchase money all appropriated to the pay ment of the debts due from the estate of Ludlow.

THIRD: That the agreement of Garrard and Parks, referred to by the bill, is a fraud on the covenants of Parks, contained in his deeds to the complainants, for the premises, and an equitable bar to the recovery of the premises, by the heirs of Ludlow.

As to the first ground for relief. The title of the complainant depends on the orders of the court of common pleas, directing the administrators of Ludlow to sell the property, and on the compliance, on the part of the administrators, with the orders and the law, in effecting the sale to Parks. Of the authority to vest this power to sell, and of the compliance with the law and orders, in perfecting this sale, the court of law had jurisdiction to enquire; and further, the court of law did make this investigation. Whether the court of law erred in opinion, is not a proper subject of inquiry, for a court of equity; nor whether a fair and impartial trial was had at law, unless the complainant shows clearly to the court, that he had a good defence at law, and was prevented from availing himself of it, by fraud, or pure accident, without any fault or negligence of himself or his agents. (2 Peter's Cond. Rep. 518.)

That an erroneous plat was used on the trial, showing that the premises were situate within the town of Cincinnati, at the time the order to sell land, of May term, 1804, was made; that the premises were then unimproved; that there is a correct plat in the clerk's office of Hamilton county, showing that the premises were not within the town of Cincinnati, at that time, if its production would probably have altered the verdict, is not a sufficient showing to authorize this court to grant relief.

If the erroneous plat was fraudulently made, and imposed on the court at the trial, by the heirs of Ludlow; or the complainant was prevented, by fraud, from using the correct plat the bill should state how the fraud was practiced, what fraudulent acts were done, or words spoken. If he was prevented by acci.

dent, the bill should state how: As that the complainant, or his agents, did not know of the plat in the clerk's office of Hamilton county, in Cincinnati; or if they did know that there was such a plat, that they did not know where it was, until after the time within which they could have moved the court of law to grant a new trial.

Should this court enjoin this judgment, and order a new trial at law, because a fair trial had not been had, it must order a new trial in every case, where the defendant may, in general terms, allege fraud in the plaintiff, in obtaining the verdict against him, and that there existed evidence which would probably change the verdict. From their feelings, defendants would do this with a pure conscience, in most of the cases, where verdicts are against them. Hence, courts of chancery, before they order a cause re-heard at law, require that the complainant should show that he used due diligence in preparing and conduct. ing his defence at law, but that he was prevented from then making it, by cir. cumstances beyond his control. (3 John. Chr. 350.)

The second ground for relief is, that the sale of this land was necessary for the payment of the debts due from the estate: that it was fairly made, for full value, and that the proceeds of the sale were appropriated to the payment of the debts due from the estate.

As to this, the title to, or lien on the land, in behalf of the complainant, if it exists, is strictly legal, and must arise from the authority of the court of common pleas, to issue the orders referred to by the bills of the complainant, and from the compliance of the administrators with those orders, and the law, in making the sale of the premises to Parks. (2 O. R. 893.) Those inquiries have been made, by the court of law; it has been there decided that the sale was without authority; and that the complainant's title was therefore defective. The complainant, if he had purchased directly from the administrator, could not have a lien on the land in controversy, superior to that of any other person, who had furnished the administrators with money, to be appropriated to the payment of the debts due from the estate; and which they had so appropriated. This would not create a lien on the lands inherited by the heirs from the intestate. (1 O. R. 522. 3 O. R. 332.) If the complainant has a right to recover any part of the purchase money, paid by Parks to the administrators of Lud. low, the administrators must, undoubtedly be parties to the suit. (1 0. R. 522.)

That the complainant has made valuable and expensive improvements on the premises, does not authorize this court to enjoin the proceedings in the ejectment, for the recovery of the premises. The right of a defendant in ejectment, to recover payment for the improvements, he has made on the premises recovered of him, is given by the occupying claimant laws: the rules and mode, by which the amount shall be ascertained, are prescribed by these laws, and the proceedings are all required to be in the court of law, in which the ejectment is tried. The law does not give to this court jurisdiction in such cases. The remedy at law is as plain and as adequate, as the legislature chose to make it.

THIRD: That the agreement of Garrard and Parks, is a fraud on the cove. nants in the complainant's deeds from Parks, and entitles the complainant to relief against the judgment at law. The agreement of Garrard and Parks can. not injuriously affect the rights of the complainant. It does not place him in a

worse situation in respect to his rights of recovery of the purchase money and interest of Parks, since the complainant did not assent to it. If the covenants contained in the agreement of Garrard and Parks, to indemnify Parks against his covenants of warranty with the complainant, can operate as an estoppel, to prevent Garrard, or the other heirs of Ludlow, from setting up their legal title to the premises, it would be by giving to these covenants of Garrard, an effect not probably intended by Garrard and Parks, at the time they made them.— This court will not sustain a bill, to extend the operation of an agreement, beyond the intention of the parties, when they entered into it. It will, in many cases, sustain a bill, to prevent its being so extended. Estopples are not favored by courts of law, and less by court of chancery. Whether this article can have this operation in a court of law or not, this court will not determine, nor will it sustain a bill to give it this effect.

Upon this whole case, this court is clearly of opinion that the complainant's bill does not state such facts as would authorize the court on the hearing, if they were all proved, to decree for the complainant. The bill must, therefore, be dismissed at the complainant's costs.

DENNISON v. ALLEN.

A subsequent purchaser from a mortgagor cannot redeem against a purchaser under a judgment on sci, fa. upon the mortgage, though no party to the proceedings on the sci. fa.

This case was adjourned here for decision, from the county of Hamilton. It was a bill in chancery, by the purchase of an equity of redemption, to redeem the mortgaged premises, in the lands of a purchaser under the mortgagee. Various matters were introduced into the bill and answers, which it is deemed unnecessary to state, because the decision turned upon a single point, which arose on the following state of case.

On the 15th of May, 1815, Cyrus Coffin mortgaged the premises in question, to P. Allen, as a collateral security for Coffin redeeming certain other grounds, previously sold to Allen, subject to a mortgage. On the 2d of February, 1816, Coffin sold and conveyed to Dennison, the lot thus mortgaged to Allen, and Dennison took possession. Subsequently Allen sued a sci. fa. against Coffin, on the mortgage, without making Dennison, or the terre tenants parties. At May term, 1821, judgment was rendered on the sci. fa. in the usual form, for five hundred and fifty-five dollars and fifty-nine cents; and on the 6th of April, 1822, the lot was sold upon execution, and purchased by Allen for three hundred and forty-seven dollars. The other defendants were purchasers under

Allen.

Fox, for complainant. Storer, contra.

By the COURT.

We conceive that the provisions of our own statute are decisive of this case. By the second section (vol. 22, 232,) it is provided, that on a judgment in scire

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