#### COIL *v.*DAVIS.

Appeal bond in chancery — its form and effect — penal sum greater than double — with only the signature of the security — dower in exchanged lands reconveyed.

An appeal bond in chancery is regulated by the provisions for the appeal bond in cases atlaw. *tí equal*to double the judgment appealed from, it is sufficient; it being for a larger sum, is no objection to it.

The object of such bond being to obtain the security of persons not party to the judgment, a bond is good if signed and sealed by the securitj' alone.

It is no objection to an appeal bond that the condition does not specifically describe the amount of the judgment appealed from, if it is specific enough to identify the judgment. So as to costs, if the appellant recovers in the appellate court, he recovers his costs in both courts; the amount in the court below is certified by the clerk of that court on the appeal.

A transposition of *words*in the form of the bond does not vitiate it.

Quere — If a widow is endowed of lands conveyed to her husband on a contract for an exchange of landafterwards rescinded, and the exchanged land reconveyed,which she refused to join in?

In Chancery. Bill for dower, brought here by appeal from the Court of Common Pleas. The appeal bond was filed in due time, and in a penal sum greater than double the amount of the decree, *165viz: two hundred dollars, conditioned ‘that, whereas, the above named John Davis obtained a decree in the Court of Common Pleas for said county of Pickaway, on the fifteenth day of November, instant, against Rachel Coil, in a suit in chancery, as by said decree, reference being had thereto, will appear; and whereas, the said Rachel Coil gave notice on the records of said court, of her intention to appeal from said decree to the next Supreme Court, to be held in and for said county; now, therefore, if the said Rachel Coil, the complainant in said suit, shall well and truly pay the costs and condemnation money of the Supreme Court aforesaid, in case a decree shall be entered therein against her, then,’ &c. This bond is executed by the security alone.

Doane, for the appellee,

moved to quash the appeal, for the following reasons: 1. Because the bond is not signed by the appellant. 2. The penalty is *greater*than double the amount of the recovery. 3. The condition does not ascertain the amount of the decree. 4. The condition does not conform to the bond, and says nothing about the costs in the Common Pleas.

By the Court.

The fifty-fifth section of the chancery act, 29 *O. L.*80, provides for appealing chancery cases, by giving notice and security within the time allowed bylaw, in case of appeals from judgments at law. The act regulating appeals at law, 29 *O. L.*78, requires bond to be given within thirty days after the close of the term of the court at which the judgment is rendered, with security, to be approved by the clerk, in double the amount of the judgment, or decree mentioned, ‘conditioned for the payment of the full amount of the condemnation money in the Supreme Court, and costs in case judgment should be entered therein for the appellee.’

The decisions of this Court for twenty years or more, under similar provisions, have been uniform, that inasmuch as the object of the legislature was security, *other than that of the party*to the record, that object is attained by a bond executed by the *security*alone, the *party*being more directly liable upon the judgment. It has repeatedly been held also, that if the penalty of the bond was in amount *equal*to.double that of the judgment appealed from, it was good, though for a much greater sum than was necessary; the object of the provision being to provide a bond in a sum *not less than double*the amount of the judgment, certainly to secure an amount sufficient to cover any contingent increase. It is no ground of objection by the appellee, that the appellant has given him greater security than he was bound to do. The act is the same in effect, as if it read, *in at least double the amount of the judgment,*&c.

*166*Doane*and Dana, for the defendant, claim—

1. That the land must be discharged of the incumbrance, before the dower attaches; 1 *O. R.*542.

2. That the actual consideration of the deed may be looked into, though different from that expressed in it; 1 *Coxe’s Dig.*144; 1 *Paine’s R.*525; 1 *T. R.*133; 1 *Bay R.*137.

3. The land is subject to the lien of the unpaid purchase-money, which, in this case, is equal to the whole estate; *Sug. Vend.*398; 2 *Ves.*622; 6 *Ves.*95; 1 *John. Ch.*310.

That the condition does not state the exact amount of the judgment below, is no objection; the bond being to secure whatever sum may be recovered in the Supreme Court; the sum recovered in the judgment appealed from, need not be *named*as such in the bond, further than is necessary to identify it, for the party ultimately recovering the judgment, recovers his costs in both courts; the whole are *his*costs, and so they become a part of the judgment in the Supreme Court. The costs below are certified into this court, by the clerk of the court below. The only variance between this bond and the form of the bond prescribed in the act in case of appeals at law, is found in this, that in the law bond the word *costs*follows *after*the word condemnation, while in this bond, that word precedes the other. This will not vitiate the appeal.

The motion is overruled.

The cause was then brought on to hearing.

The complainant claims dower in one hundred and seven and a half acres of land, held by her late husband, under the following circumstances: The husband in his lifetime, exchanged land with

one Davis, under whom the defendant claims, and each conveyed to the other. Some doubt being entertained as to the title of the tract received by Davis, it was agreed between them, that if it failed, the parties were each to restore to the other his land again, and rescind the contract. The title did fail, and Davis and Coil each reconveyed to the other; but the complainant urged her husband not to execute the deed of reconveyance, and refused to unite with him in the reconveyance. He refused to comply with her wishes, saying, that he would reconvey, and by so doing, die an *honest man.*The land held by that exchange, is the same in which she- now claims dower.

The Court ordered a reference to a master, to report — 1. What the precise contract of exchange was. 2. What the land in which dower is claimed was worth at the death of Coil. 3. The amount *167of the rents and profits of the respective pieces, since Coil’s death— reserving the whole equity of the case until the coming in of the report.