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Lessee of Ludlow's Heirs v. Park.

was adjourned here for decision. The case upon the trial appeared as follows:

The plaintiff proved that the lessors were the heirs at law of Israel Ludlow, who died in January, 1804, intestate. A deed from J. Clevo Symmes to Israel Ludlow, for the premises in dispute, was adduced in evidence, with proof of the possession and occupancy of Ludlow until the time of his death. The premises were a twenty-seven acre out-lot claimed to be within tho plat of the city of Cincinnati. An official copy of the town plat was given in evidence, on which the premises were designated. It was also proven that the premises had been improved, by clearing, inclosing, and cultivation, in the lifetime of Ludlow. Upon these proofs, the cause was rested by the plaintiffs.

The defendant then offered in evidence a deed, from the administrators of Israel Ludlow, to himself, for the same premises. This deed bore date on December 21, 1810, and recited that the administrators had, on the 13th of that same month, sold the premises conveyed, under an order of the court of common pleas of Hamilton county, of December term, 1810. It was conceded that the 6] *sale was, in fact, made on the day recited in the deed. A cer. tified copy of the order of sale was produced, in the following words: “December 17, 1810. Petition of the administrators of Israel Ludlow, deceased, etc., for to sell real estate to satisfy the demands, etc., which this court grant.” The plaintiff's counsel objected to the admission of this deed and order in evidence, on the ground that the order authorizing the sale, being made subsequent to the salo itself, and that fact appearing upon the face of the deed, the sale and conveyance were inoperative for defect of authority in the administrators to make a sale.

The court sustained the objection, and rejected the deed and order.

The defendant's counsel then offered in evidence an order of the court of common pleas of Hamilton county, of May term, 1804, in the following words: “The administrators of the estate of Israel Ludlow, deceased, exhibit an account current, and pray the court to issue an order for the sale of the real property, to defray the debts due from the estate, etc. John Ludlow and James Findlay sworn in court. The court order so much of the real property sold as will meet the said demands, except the farm and improved lands near Cincinnati, together with the house and lots in Cincin.nati." The plaintiff's counsel objected to this order being re

Lessee of Ludlow's Heirs v. Park.

ceived in evidence, because the premises in question, being improved lands near Cincinnati, or a lot in Cincinnati, were not embraced by it; and also because the law in force when the order was made, was repealed in 1805, and no law substituted for it empowering the courts to order the sales of decedents' estates, until 1808. The order was also rejected by this court, and no evidence being given to the jury, divesting the title of the plaintiff's lessors, a verdict was rendered for the plaintiff, under the direction of the court.

The defendant's counsel moved for a new trial, and assigned the following reasons :

1. The verdict is against law.
2. The verdict is against evidence.

3. The court rejected legal and proper evidence, which ought to bave been given to the jury.

4. The defendant has discovered new and material evidence since the trial.

*The newly discovered evidence consisted of an old copy of [7 the plat of the city of Cincinnati, in which the twenty-seven acre out-lots were not marked as a part of the town.

The questions arising on the motion for a new trial were adjourned for decision to the special session, at Columbus. At the time of adjourning the cause, no statement was made and approved by the court, presenting the state of the case, and the questions to be discussed and decided. When the counsel came to prepare their arguments, the counsel for the defendant alleged they had been directed by the court to argue only a single point, viz : “ Whether any other order could be shown than that recited in the deed." This the plaintiff's counsel denied, and insisted that the whole case was open for discussion, as presented by the facts stated to bave transpired at the trial. The cause was argued by N. WRIGHT, and Caswell & STARR, upon this point, and by HamMOND & GARRARD upon the whole case.

N. WRIGHT, in support of the motion for a new trial :

I shall contend that the recital of one order, in a deed of this sort, does not prevent the party from relying upon any other, which may sustain his title; that the material question is, whether the administrator had in fact the power to sell, and if the power existed, a misrecital of the power, or a neglect to refer to it alto

Lessee of Ludlow's Heirs v. Park.

gether, will not vitiate the dood; but that the deed will be made to operate in any way in which it can be effectual, ut res magis, valeat quam pereat, according to the old maxim, " quando non valet quod ago ut ago, valet quantum valere potest."

It will be kept in mind, that none of our statutes required the order or the proceedings to be recited in these deeds by administrators, differing in this respect from sheriff's deeds; the form of the deed, therefore, is left to common law principles.

The general principle is not questioned, that parol evidence is inadmissible to contradict or vary the effect of a written instrument; but the very language of this rule shows that it refers only to essential parts of the instrument; those parts where parol testimony would vary the effect of the instrument. An immaterial 8] part of an instrument may be *varied or contradicted by parol; for the plain reason, that by so doing you produce no alteration in the operation of the writing. Thus the date may be contradicted, the amount of the consideration of a deed may be contradicted; if the deed recites incorrectly the prior chain of title, it is no impediment to showing the title truly; and almost all recitals may be contradicted; because recitals are not essential parts of the deed; as evidence, they are mere admissions of facts, and the truth may be generally shown. There are exceptions in relation to recitals, and the general principle is undoubted.

“A recital is not a necessary part of a deed either in law or equity. It may be made use of to explain a doubt of the intention and meaning of the partios, but it hath no effect or operation." Shep. Touch. 76, and n. 2; 2 Chan. Cas. 101.

“ A recital is no estoppel, because not a direct affirmation." Co. Lit. 352, b; 9 Johns. 90.

Where the recital is essential to the operation of the deed, or where the terms are such that the grant operates only on the misrecited premises, there the recital can not be contradicted, and in such cases the general rule relative to parol evidence applies; but to an immaterial recital, it has no sort of application.

The only inquiry, therefore, in the present case, must be, whether the recital of the order is a material part of the deed. The deed is an execution of a power; and the order of court constitutes the power. It is an old and uniform common law doctrine, that a deed, made in execution of a power, need not recite the power, and that a misrecital does not vitiate it. It is so laid down in Cleer's

Lessee of Ludlow's Heirs o. Park.

.

case, and runs through all the books. 6 Co. 18; Cro. Eliz. 877; Cro. Ja. 31 ; 10 Co. 143.

Cruise states the law thus: “An instrument may operate as a revocation or appointment, without any mention or recital of power. For if the act done be of such a nature that it can have no oporation, except by virtue of the power, the law will resort to the power, and thereby give validity to the instrument, upon the principle that quando non valet quod ago ut ago, valeat quantum valere potest.T. Raym. 295 ; 4 Cruiso, 240.

Powell says: “It is not necessary that the deed creating the power, should be recited or referred to in the instrumont *ex. [9 ecuting the power, if the act done be of such a nature that it can have no operation unless by virtue of the power; for in such case the law will refer to that, and thereby give validity to the deed." Powell Pow. 111, 126.

And the rule is the same at law in ejectment.
Sugden Pow. 292, repeats the same doctrine.
Maddock sàys;

" It is not necessary to recite, in order to execute, & power, if it clearly appears that the party intended to execute it," and "that all these doctrines (in relation to such conveyances), relate to what are considered as legal powers over legal estates, and as such, are within the adjudication of courts of common law, nor have courts of equity any original or exclusive power to decide upon them," etc. 1 Mad. Ch. 56, 450.

In ex parte Cagwall, it is said, “Though a man may execute a power, without reciting or taking the least notice of it, yet he must mention the estate," etc. 1 Atk. 560.

In Read's Lessee v. Reed, in ejectment, the same principle is held. Lord Kenyon says, relative to a will, when 110 reference to the power was made, “ Undoubtedly the words are sufficiently comprehensive to pass this fourth, if it can be collected from the will, that the devisor intended it to pass." 8 D. & East, 12); 6 East, 105 ; Berkley's Lessee o. Archbishop of York.

“If deeds can not operate in one form, they shall operate by that which by law will effectuate the intention.” Goodlittle & Edwards v. Baily, 2 Cowp. 600.

Lord Redesdale says, “ It is not necessary that the instrument, to operate under the power, should recite the power, or refer to it in any manner, in the execution of it; but if the act can have no

Lessee of Ludlow's Heirs v. Park.

effect but by virtue of the power, it is taken to be done in execu. tion of the power." Dillon v. Grace, 2 Sch. & Lef. 401.

In Maundrell v. Maundrell, Lord Eldon says, “ The authority of Sir Edward Cleer's case, as well as all general doctrine, seems to fur. nish this, that it is not necessary to recite that he means to execute the power, if the act is one that he can do only by that authority.” This case arose on the construction and effect of legal conveyances. 10 Ves. 257.

So Chancellor Kent, “If the act can be good in no other way 10] than by virtue of the power, the act or will shall be deemed Kan execution of the power, though there be no reference to the power.” Bradish v. Gibbs, 3 Johns. Ch. 551.

So in Jackson v. Pratt, in ejectment, speaking of the misrecital of an execution in a sheriff's deed, he says, “Such recital was no necessary part of the deed, and a variance would not be material nor affect the validity of the deed, so long as there was existing a sufficient power to warrant the sale.” 10 Johns. 386.

So in Hatton v. Dow, in North Carolina, it was decided that although the execution, under which the sheriff's sale was made, was erroneously recited in the sheriff's deed, yet the deed was good. 2 Murph. 260.

So in South Carolina, in Harrison v. Maxwell, the sheriff's deed recited the execution under which the sale was made, as issuing from the court of one district, when in fact it issued from another district; yet it was held the deed was good, notwithstanding this misrecital. 2 Nott & McCord, 347.

So in Tennesseo, in Craig v. Vance, it was held that a misrecital of the judgment, by virtue of which the land was sold, does not vitiate the sheriff's deed. 1 Tenn. 209.

So in Jackson v. Streeter, it was held that a misrecital of the judgment in the sheriff's deed is not material, provided it be proved, in fact, that the sale was made under a subsisting judgment and execution. A recital is no material part of a deed. 5 Cowen, 529.

The foregoing references, and others which might be made, show clearly the general principle, that the recital of the power is not an essential part of the deed; and that the principle is applied to the case of sheriff's deeds, with reference to the execution which constitutes the power. The case of an administrator's deed is the same in principle, but in practice there is less reason for a refor.

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