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Sample et al. v. Barnes.
aid or countenance to those only who can present themselves with pure hands, and who are free from suspicion.
The rule, as applicable to the position of this party, a rule believed to be without exception, has been distinctly announced by this court in a case very similar in most of its features to the one now before us; for that, like the present, was a case in which the contract was impeached for precisely the same reason for which the interposition of equity was here invoked ; and in that, too, as in this instance, after the omission to set up a defence at law. We allude to the case of Creath's Administrator v. Sims, in the 5th of Howard, where this court, on page 204, have thus announced the rule by which courts of equity are governed. " Whosoever,” say they, “would seek admission into a court of equity must come with clean hands, and such a court will never interfere in opposition to conscience or good faith. The effect of these principles upon the statements of the compla'nant is obvious upon the slightest consideration. The coinplainant alleges that the obligation to which he had voluntarily become a party was intentionally made in fraud of the law, and for this reason he prays to be relieved from its fulfilment. This prayer, too, is addressed to a court of conscience, to a court which touches nothing which is impure. The condign and appropriate answer from such a tribunal to such a prayer is this, that, however unworthy may have been the conduct of your opponent, you are confessedly in pari delicto ; you cannot be permitted here to plead your own demerits : precisely therefore, in the position in which you have placed yourself, in that position we must leave you." The attitude of the appellant, Sample, in connection with this aspect of the case, would of itself alone be corclusive against his application to equity for relief; but as this party has adduced other reasons upon which he has supposed himself entitled to equitable interposition, it may not be out of place to show their utter inconsistency with the very rudiments of equity jurisprudence; with principles so familiar to the courts and to the profession as to render their particular annunciation scarcely necessary. The defence now attempted to be set up by Sample, viz.: the illegality under the constitution and statutes of Mississippi of the consideration for which the two bills of exchange were given, if true, was a legal defence, to be availed of in the action at law by plea or demurrer. Of this principle he seems to be aware, and therefore herendeavors to escape from its operation by attempting to fix upon Barnes certain practices by which he, Sample, was prevented from making a proper defence in the action against him in the Circuit Court; but with respect to the testimony adduced to establish such alleged practices, it may be remarked in the
Sample et al. v. Barnes.
first place, that it does not make them out as they are averred by the bill to have occurred, and in the next place, admitting the averments in the bill, with respect to the practices objected against Barnes after the institution of the suit at law, supposing them to have ocourred as stated in the bill, they could have formed no valid obligation upon Barnes to surrender, without consideration or equivalent, his legal rights, nor any dispensation to the appellant, Sample, from his duty to guard his interests in the pending litigation in which he was a party. Barnes had no power to compel a confession of judgment by Ives; and even if such confession had taken place, there could be no propriety in requiring Barnes to substitute for his demand, upon a solvent debtor, a judgment against another who was not solvent.
The appellant, Sample, appears to have been guilty of the grossest neglect and disregard of that diligence which the law requires at the hands of all suitors, and from the consequences of which they cannot be rescued consistently with the rights of others on the order of society. The law, as applicable to such neglect, is plainly declared in the case of Creath v. Sims, al. ready quoted, in which this court have said that “a court of equity will never be called into activity to remedy the consequences of laches or neglect, or the want of reasonable diligence. Whenever, therefore, a competent remedy or defence shall have existed at law, the party who may have neglected to use it, will never be pernutted here to supply the omission, to the encouragement of useless and expensive litigation, and perhaps to the subversion of justice.”
How, then, shall the conduct of the appellant, Sample, be reconciled with the principles by this court so emphatically aunounced? He not only omits to insist upon his legal defence in the suit at law against him in the Circuit Court, but, after the judgment in that court by default, he executes a delivery bond, with the other appellants as his sureties; thus, after the first judgment against himself by default, the procures a second judgment against himself and his sureties as it were by contes sion. This party has, by his conduct, four times recognized the claim against him by Barnes - twice by his indorsement upon the bills drawn on N. and J. Dicks & Co , and on Ford, Markham, & Co.; in the third instance by permitting the judgment by default; and fourthly, by executing the forthcoming bond, which he knew was tantamount to a confession of judgment for the demand.
Upon these grounds, solely, and independently of the original consideration on which the undertaking by Sample was founded and supposing that consideration to have been invalid, if inquired into at the proper time, this appeliant must, by his con
Raymond v. Longworth.
duct, be regarded as having waived all right of inquiry into that consideration, nay, rather as having repeatedly adrnitted its validity. To permit him, after so doing, to contradict all that he has repeatedly and formally declared, would be to allow him to falsify his solemn acts, to trifle with the settled rules of law and the practice of the courts, and would lead to endless litigation. We therefore order that the decree of the Circuit Court, dissolving the injunction and dismissing the bill in this case, be, and the same is hereby, affirmed.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.
WILLIAM F. RAYMOND'S LESSEE V. NICHOLAS LONGWORTH.
Ir the State of Ohio, it is not a sufficient description of taxable lands to say, “ Cooper,
James, 5 acres, section 24, T. 4, F. R. 1." Á deed made in consequence of a sale for taxes under such a description is void. The courts of Ohio have so decided, and this court adopts their decision.
This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Ohio.
It was an ejectment, brought by Raymond, for the following property, viz. :-— All that certain tract of land in the western part of, Cincinnati, commencing thirty feet north of Nicholas Longworth’s individual property, on the west side of Mill Creek road, thence north, on the line of said road, five hundred feet, and extending back, the same width, at right angles with said road, four hundred feet.
The facts are set forth in the opinion of the court.
It was argued by Mr. Chase, for the plaintiff in error, and submitted, on printed argument, by Mr. Stanberry, for the defendant in error.
The bill of exceptions brought up other points besides the one upon which the judgment of this court rested; but it is not necessary to notice them.
Raymond v. Longworth.
The following authorities were cited by Mr. Stanberry, in support of the ruling of the Circuit Court.
The entire record having been admitted in evidence, the defendant requested the court to instruct the jury, " that the description of the lot upon the . duplicate, as appears by the abstract aforesaid,” (Exhibit D) " was not a pertinent description of the lot, such as the statute required; and, therefore, that the forfeiture to the State of Ohio was illegal and void, and the subsequent sale, by the auditor of Hamilton county, to Charles Phelps, was also void.”
This instruction, as prayed by the defendant, was given by the court; and the plaintiff excepted to this opinion of the court also.
On the validity of this exception turns the principal question in the case.
In behalf of the defendant, and in support of the ruling of the court on this point, we deem it unnecessary to do more than point out the utter want of certainty in the description of the land, as contained upon the duplicate for taxation, and in the advertisements for sale and returns, as exhibited throughout the abstract from the record (Exhibit D, aforesaid); and, having done so, refer the court to the uniform course of decision in Ohio upon the subject, - invariably holding such descriptions invalid, and forfeitures and sales under them void. Indeed, all this is fully and sufficiently done in the circuit report of the present case. 4 McLean's Rep. 481; and in the case of Miner's Lessee v. McLean's Assignee, 4 McLean's Rep. 138.
We shall, therefore, only briefly state, that the description of the lands, as shown by this record, upon the daplicate of taxes, and in the various returns and advertisements, is thus throughout:
“ Cooper, James, 5 acres, S. 24, T. 4, fr. R. 1, Cincinnati. Value $830. Amount due, $
This is to be read substantially thus : ---“Five acres in section 24, fractional range 1, Cincinnati, valued at 830 dollars," &c.
The uncertainty of description, which renders the title void, consists in its being wholly impossible to know in what part of the section this particular lot of five acres is located. Entire sections contain 640 acres, and these five acres, so far as appears, may as readily be in one part as another.
Such descriptions have been holden void by the Supreme Court of Ohio, in the following cases: Lessee of Maggie's Heirs v. Long et al., 2 0. R. 287; Lessee of Treon v. Emerick, 6 O. R. 391 ; Lessee of Laferty v. Byers, 5 O. R. 458. See also, 15 O. R. 134; 16 O. R. 24.
Raymond v. Longworth. Mr. Justice CATRON delivered the opinion of the court.
Raymond sued Longworth, in the Circuit Court of Ohio, for a piece of land, containing about five acres, lying in the western part of the city of Cincinnati. The plaintiff claimed title, under a sale for State taxes, for the years 1837 and 1838, made by the Auditor of Hamilton county, to Charles Phelps, for eighty dollars.
The land had been listed for taxation, as the property of James Cooper. The description on the tax-list, and in the subsequent return to the State Auditor, and in the advertisements of the property for sale, was as follows:-“ Cooper, James, 5 acres, sec. 24, T. 4, F. R. 1.” The taxes not having been paid, and the land being advertised and offered for sale, by the Auditor of Hamilton county, and no bid being made for it, it was returned to the General Auditor, as forfeited to the State, and he again ordered the land to be advertised and sold. On the trial below, it was insisted that the description of the premises was vague on the tax-list, and in the duplicate returned to the State Auditor, and in the advertisements offering the land for sale ; that no forfeiture could be founded on such description, nor a valid sale be made. And so the Circuit Court instructed the jury, pronouncing the County Auditor's deed to Charles Phelps void. And the question presented is, whether the description was sufficient.
The uncertainty consists in not setting forth in what part of section 24 the five acres are situated.
It is settled, by the Supreme Court of Ohio, that the tax-list, and the duplicate transmitted to the State Auditor, as well as the advertisement, must describe the land so that its identity may be ascertained from the description, either by the owner, who wishes to pay the taxes before it is offered for sale, or that he may redeem after a forfeiture is pronounced; or that the public may be assured what is offered for sale
We refer to the description in the leading cases, where the sales were pronounced void for want of sufficient certainty. In Mathews v. Thompson, 5 Ohio, the description was, “ 100 acres, sec. 1 township 7, range 4.” In 5 Ohio, 458, “ Haines, John, No. entry, 4401; original quantity, 170 acres ; quantity taxed, 70 acres." In 6 Ohio, 399, “ Sixty acres, part of the N. half of S. 13." in 16 Ohio, 25, there had been listed 333 acres, as part of an original survey for 1,000 acres, without specifying in what part of the 1,000 acres the 333 acres lay. In each of the cases cited, it was held, that the description was vague and the sale void. Here, the five acres are listed, and advertised as part of section 24, and the description is equally vague as any of the foregoing. And, as the State courts have