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White, 26 Conn. 320. But it is further insisted, in support of the construction claimed by the first mortgagees, that section 458 requires the mortgaged premises to be appraised and sold for not less than two-thirds of such appraised value, and that the rule is established in this State, that where appraisement of real estate is required, the appraisers must re. turn the money value of the land. This rule relates to sales upon executions at law. In Baird et al. v. Kentland et al., 8 Ohio R. 21, where the interest of a mortgagor was levied upon, the court held that the entire estate in the land must be appraised, and that there was no authority to appraise the mortgagor's equity of redemption.
The statute provided "that if execution be levied upon land and tenements, the officer levying such execution shall cause an inquest of three disinterested freeholders” and “administer to them an oath to appraise the land, and said freeholders shall return to said officer an estimate of the real value in money of said estate.” The word “estate" in the latter clause was held to mean the same as "land" in the former. But in the Lessee of Joseph Canby v. Foster, 12 Ohio 79, it is held that the freehold of an husband in his wife's lands may be sold on execution. LANE C. J. says: “The interest of the husband is a legal estate; it is a freehold during the joint lives of himself and wife, with a freehold in remainder to himself for life, as tenant by the courtesy and a remainder to the wife and her heirs in fee. It is a certain and determinate interest, whose value may be easily ascertained by reference to well-known rules, it is in every sense his land within the meaning of the statute.”
And in speaking of lands incumbered by mortgages he says: “As no true, perfect authoritive binding estimate of the value of the incumbrance can be taken by the appraisers, the law forbids the inquiry and admits of no sale except as of in. cumbered property. The effect of this rule is to throw into chancery sales of mortgaged lands, except where the purchaser is willing to encounter the risk of the burden."
Here it will be seen the sense of the word "land" is limit. ed. Any legal estate, whether it be fee simple, an estate for life, or a inere possessory interest may be sold on execution.
Scott v. Douglass, 7 Ohio 228; Miner v. Wallace, 10 Ohio 403. But an equitable interest in real estate cannot be levied upon. Haynes v. Parker, 5 Ohio State 253. The law has never permitted it. Executions follow judgments at law. The appraisers are not a proper tribunal to determine the ex tent of the equitable interest of a debtor in real estate. This is the business of the court. But where such interest is as. certained, and its limits defined by the court, it is as easy of valuation as an estate for lite or years. The statute expressly authorizes an equitable interest of a decedant's estate to be appraised and sold. S. and C. 589. But in proceedings in foreclosure they are the “mortgaged premises' chat are required to be appraised. No matter whether the mortgagor has a legal or equitable title. If the owner of an estate for years mortgages it, upon foreclosure, the mortgaged property to be appraised is the estate for years. If ihe purchaser of a parcel of land by contract, upon which le has paid but one. half of the purchase price, mortgages Lis interest in such lands, upon foreclosure, the mortgaged 1 emises are his equitable interest, and not the whole lands.
And if an equity of redemption is conveyed by mortgage, such equity constitutes the mortgaged property.
A decree may be entered, finding that the plaintiff is enti. tled to redeem the premises from sale under the first and second mortgages, by paying the amount due thereon and ordering that, unless the mortgagor pay the amount due on said third mortgage within thirty days, said premises be sold thereun. der, subject to the lien of said prior incumbrances, and that to the extent of the amount paid to redeem by said plaintiff he be subrogated to the rights of the prior mortgaçees.
ABSTRACTS OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF MAINE.1
COURT OF APPEALS OF MARYLAND.2
SUPREME COURT OF MICHIGAN.3
SUPREME COURT OF NEW YORK.4
The People as a suitor in the Courts— Who may appear.--The State can be recognized by the courts as a suitor in legal proceedings only through the agents or legal representatives appointed by law, and the appearance of the proper representative can only be attested by the record. In a case before a Justice of the Peace ander § 5122 of the Compiled Laws, the intervention of the Supervisor of the township is necessary, or that of the Prosecuting Attorney of the county. The State can only be made plaintiff in error in this Court by the Attorney General: The People v. Navarre, 22 Mich.
ADVANCEMENT.-See Evidence. What is.—In 1833, a father, by deed of warranty, conveyed to his son certain land of the full value of five hundred dollars, receiving back a writing therein acknowledging the receipt from his father of five hundred dollars as the full share of all his father's estate, and relinquishing all his right, title and interest in and under his father's estate at the latter's decease, which he should otherwise have had. The father, in April, and the son in the following November, died intestate. In a real action, brought by the children and sole heirs of the son, to recover their distributive share of their grandfather's estate, Held, that the conveyance was an advancement in full to the son, and that the grandchildren were barred: Smith v. Smith, 59 Me.
AGREEMENT. After a settlement between the parties, and the giving of a note by the defendants to the plaintiffs for a sum agreed upon. but during the same interview, the defendants agreed that in case a certain shipment of lumber, made by them, which had not yet arrived, shouià prove on arrival to contain less than 149,013 feet, at which amount it had been invoiced, the defendants would make good the deficiency. Held, that this agreement, being subsequent to, was not merged in, the settlement; and that an action would lie
upon it to recover the amount of deficiency in the quantity of lumber shipped: Smith et al. v. Holland, 61 Barb.
i From W. W. Virgin, Esq., Reporter; to appear in 59 Maine Reports. 2 From J. S. Stockett, Esq., Reporter; to appear in 35 Maryland Reports. 3 From H. K. Clarke, Esq., Reporter; to appear in 22 Michigan Reports. 4 From Hon. 0. L. Barbour, Reporter; to appear in 61 and 62 of his Reports
Held, also, that the agreement to make good any deficiency is the quantity of lumber was upon a good consideration : Id.
How proved. An oral agreement, connected with a contract in writing, may be proved by parol, if subsequent and independent: Id.
Variance. After judgment, a variance between the complaint and the proof is immaterial. The court may, on appeal, order ad amendment, so as to conform the allegations of the complaint to the evidence: Smith et al. v. Holland, 61 Barb.
Submission-Award-Pleading.—The claim to be investigated by arbitrators need not be stated and annexed to a submission at common law: Dodge v. Hull and others, 59 Me.
A count in common form upon a submission and award is not vitiated by allegations in the same count setting up a lien claim; but the lien claim being waived, the allegations relating thereto may be rejected as surplusage: Id.
The delivery to the parties by the arbitrators of a paper, not as their award but as a detailed statement of their conclusions, does not terminate the powers of the arbitrators; but a formal award subsequently made and published, wherein the same net balance is found, is binding: Id.
Plaintiff's right to. Although an attachment is an extraordi. nary remedy not known to the common law, and therefore one which the courts should watch with scrupulous jealousy, yet when a creditor fairly brings himself, by his application, within the spirit and the intent of the statute authorizing the remedy, he is to be protected in the enjoyment of its advantages : Rowles et al. V. Hoare 61 Barb.
Motion to discharge ; when it may be made.-The provision in Section 241 of the Code, as amended in 1857, that " in all cases the defendant may move to discharge the attachment, as in the case of other provisional remedies," include all cases, such as want of jurisdiction in the officer who issued the attachment; fraud in obtaining it; defective papers, and various others : Id.
An application to discharge or vacate an attachment may now be made in furtherance of justice upon the real merits of the mo. tion, or for irregularity, or for want of jurisdiction in the officer who granted it, or for any other cause; and such motion may be? made after judgment entered in the action, even though the defendant has appeared and given the undertaking required by $$ 240, 241: Id.
Affidavits upon motion. In cases where the defendant moves, apon his own affidavit, or affidavits made on his behalf, the plaintiff may oppose the motion, as in other cases, by affidavits which either explain or contradict those offered by the moving party : Id.
BILLS OF EXCHANGE. Acceptance admits genuineness.—The acceptance, whether general or for honor, or supra protest, after sight, of a bill of exchange, admits the genuineness of the signature of the drawer, and, consequently, in favor of a bona fide holder for value without notice, if the signature turns out to be a forgery, the acceptance will nevertheless be binding and entitle such holder to recover thereon according to its tenor: The Salt Springs Bank v. The Syracuse Savings Institution. 62 Barb.
Forged bill or check; payment by drawee.--If the drawee of a forged bill has paid it he cannot recover back the money, although the forgery is conclusively established. Having by that act admitted its genuineness he will not be permitted to dispute it afterward, although he can have no recourse against the drawer for reimbursement: Id.
Thus, where a forged check upon the plaintiff's bank was received by the defendant in the course of its business in good faith, it having paid the full amount named therein, without notice of the forgery, and the plaintiff, on presentment of such check by the defendant, received and paid it. Held, that these facts brought the case within the above rules ; and that the plaintiff could not recover back from the defendant the sum paid upon the check: Id.
Held, also, that the fact that the forged check had upon its face the forged signature of the plaintiff's teller, which was overlooked at the time of the presentment, together with the facts that the pretended drawer was not even a customer of the bank, and had no account there out of which the check could be paid, demonstrated what would otherwise have been a matter of inference merely, viz., that the plaintiff's agents were guilty of very great negligence: Id.
A check on a bank is, in substance, a bill of exchange payable on demand, and is governed by the same rules which are applicable to those securities : Id.
The officers of a bank are bound to know whether the pretended drawer of a cheek is or is not a customer of the bank; and whether his account will justify the payment of the check: Id.
CHECK.—See Bills of Exchange.
CONSTITUTIONAL LAW. Trial by Jury.—Justices' Courts.—The amendment of section 53 of the Code, in 1861, by extending the jurisdiction of justices of the peace to actions of replevin, is not void as violating the provision of the constitution which declares that “ the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever” (Art. 1, 32), by reason of the circum