The penny press. [volume] (Cincinnati [Ohio]) 1859-1860, 1859-10-08
LAW REPORT.
SUPERIOR COURT.

CASES DEcfDED BY JuDGG SPEYCER.-W. c.
Smith ys. }. j. BerOe and James Gardiner; An at
taehmet issued on application OF piaintfhs, on tho
18Th oSeptember against the defendants the ground
being an alleged intcntitn on The part oi the iatter
to dlsp,se of property, with Wow 10 dsfraud their
creditors, ,ncludng the PLAINTIFF aud by way oishow,
ing the existence of such intention. IL was ayerred
that about the time when the paper sued on matured
they made a proposition to paintiff to transfer to
him promiss0ry note, executed by Henry Debolt,
Tor Sl2O ia payment OF heir claim which amounteu
e he surplus to be Paid dstsndsnt Ry PLAIN am
theparties to carry II out staring
that they could not iow contre the pe6oit paper
plaintiff AYERS that in point offaot the dcfendaht mad
either used the said notes or about using them
in the purchase of lands In Anglaize County, which
70 s 6 ssoM S@d thew wee
ing their property backward and forward, beyond
the reach and control OF fthsmselves Or creditors
tculars; and state that tho plaintiff In the first
instance refused to discount the Debat note, unless
ho could get some three per cent a.month, and re-
fused in short to have anything to do with It until
in the mean time, defendants had proposition to
take IN payment from Debolt, lands in Anglalzs
County. Other aildayits were also presented.
plaintiffs original aiidavit eShibits slight grounds
of any explanation whatever; 1t might furnish
gTCnaas for the issuing Of the writ Th;r9wing out
diets the qlegatIo! of the plaintiff we find from the
other evidence before the Court, that negotiation
for the purchase Of lands was pendngi and that i
was nothing more than an arrangement by which
Debot, who owed the amount of this note, expected
to pay " of. A debtor in failing circumstances
having the note of another party, over due aud diff
cult to collect, can not properly be charged with a
wrong disposition of his property, II he chooses to
take land In payment. \ here Is no evidence of bad
faith in tho transaction throughout. The attach
ment will be dsmisse as to Berne, but claimed to
tho other defendant, on the ground Of his being a
nonresident.
APPLICATION FOR LEAvE TO LITIdATg IN A QUESTION
ARIsINGIN THE PURCHASE OF REAL EsTATE-In the
ers order Of sale made last spring, and por
ton Of tho premises described in the petition was
sold by the Master Commissioner to John Hill, jr
The sale was confirmed at the May term, and in prr
suanco Of tho order Of confirmation decd was made
| and executed his two notes, secured by mortgage,
for the residue. These notes were transferred under
order of the urt to some of the creditors in the
action, and the cash had been distributed. Hill, the
purchaser alleges now that there was misdescrip-
iion to the number of feet in the lot or less by
leave to file petition In the case that he be made
party and 5e p.rmitted to litlgate this purchase
| 1t is aYerred that survey has been made, and a
large portion of the lot found to be appropriated for
public use street. and he asks either to have the
sale rescnded or pro rata abatement made in the
Judge Spcncer-The only question we are con-.
cerned in disposing offs, whether Hill shall be al
nj, Ss,, ;,s. The parties all before ne Court;
large portion OF tn,. game property Is still udspcsed
Of and tits plain five can graft relief at all In such
case it should ehadin thg ectiot, beSs tae iand
It is under our coutro The point Is an interesting
one, and Is discussed With ,con'iderable ability in
as to who are the contracting parties. The rule 10
this country Is different from that WHICH prevails
nder IKE i'm in England TneTe ,h SSnss ns
butiaro ordered to be made BY tho parties ip the
action those who control the title. It is not mate
rial whore the real title is in case of this descrip.
ton. ltthe Court, by summary process, Will pei
purchaser 10 take rroperty, and comply with nj,
is oiicets guilty Of any miStale, Whereby the pur
chaser is paced Il Wrong noSitjon, and 1t is made
apparent that he will be substantially Injured or de-
,rpn,p lluIt IN fhn
all respects to interfere and relieve him. either by
setting aside the SALE or otherwise, as the emergency
Enough is exhibited in this case to show that II
this sale had not been conhrtned, the Court would
not order i to be confirmed Tho only question OF
difficulty that would arise was whether having beer
confirmed aud the money passed over, there was any
power in tho Court TO restore it. We are not pre-
ovo the purchaser II his case could be suhstaniaet
IN proof and the Court was disposed to let the pc
tioner in ss party TO the action to contest a SSeI
in the case rs equity require. ,
II was intmatcd, however, by the Court tina. t wa
qlucston whothcr the party was isJpred to the ex
lent he claimed, or had not got all he could get il
my ASPECT OF he case as it now stood on affidavit
Mr.. Henderson subsequently Withdrew the motion
being satisfied vi til establishing the principle.
lMroRT.NT TO PURCHASERS OF REAL EsrATE.-J. r
Huntingdon VS.. 4, b. Cassidy, mttedon demurre
20 plaintiffs petition Petition sets forth hat on tn
10Th of November, lS5S defcndant conveyed to plain
tI real estate in CINCINNATI for $4,000, and that il
his dead of conveyance, he entered into covenant t
the cict that the promises were free of, all incum
brancpa, except certain mortgage particularly dc
scribed. The plaintiff ayers that at the time of tn
purchase, il in fact iDcumbered in the OF S25 fo
taxes. which hHdhcen levicdand assessed, and becam
PAYABLE part on the Goth day of december, 1858, AM
the residue in June, 1859. Delendont declined to pa
the taxes,
Judge Spencer The only question that can arise
whether In fact the taxes were an incumbrance whe
the lncumbrance waS made. They are made payabl
tho 9th day Of December, but in fact pay abb
NJ prior period of time, or as soon as they ar
brought on the duplicate iu the month Of August o
September. The law now provides that the tax Ia
lien on the property from the lst day of June. Tn
case shown in the petition is, that the taxes were
fact due prior to November, when the sale was made
The demurrer would be oyerruled, and defendant re
an rod 4 n q IN