Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1862-12-28

70 osnnon Plea; 4 Hooking sepDv. Reserved IA Dis
trio, Court &IM ffI,N'
0hoison, u; ".
imprsoned under an order of arres deIenps that th'
escape occurred on account OF the insuconcy Of thu
county fail, cannot be sustained.
No. S5. william Bomherger ct al. v. VIM. Turner
Administrator Of olyne. Error to Superior COURT o
Montgomery county.
| Peck, j.:
Lands raudulently transferred by the in rumentaty
Of judicial SALE descended 10 the heirs Of the aenee
who Ignorant Of the fraud, assigned tho Id par
ton to one Of their heir took posiession
raid taxes from year to year, and In good faith made
valuable and lasting improvement Ajudement creditor
isd his petition against the ssnof and the heirs o
enee, TO set aside the transfer the fraud and subject
| the premises to payment Of the Judgment.
Held:
]. That such heir who nnooently and In good faith,
had made such expenditures for the benefit Of the
tate, was entitled to be equiiaby compensated therefor
dt acton and out Of the proceeds Of sale 70 DO
dered And that an anwef alleging such expenditures
and asking case the transfer should be adudged fraud
uient for the ascertanment OF the amount equltaby
due him, and is payment out Of the proceeds Of the
sale, ], good upon demurrer.
O. II was the right Of the heir, thus circumstanced
to have such relief In the action, and decree which
merely saves his rights under the occupying claimant
law and orders the property to be dpprdted and eod
'free from improvements made thereon by tho defend
ants" " erroneous.
D. Such alIenor, in suit by his Judgment creditor
against him and the hers Of the alienee he personal
representative Of tho aenes not being party hereo)
ID copsfent nsss under sections $40 and 3l3 Of the
Code % provs JrGGdsnt ooRuston 5s,ssesa 1in,self
and Me deceased GIfenee. es -'r
4. In order to put plaintiff upon proof OF material
averment In his petition. the defendant must, in some
form, deny Its truth. Hence where the answer to such
aveent Is merely, fthese defendants do not admit"
etc. ae plaintiff cannot be required to offer proof in
5. In an action by q judgment creditor, under SEQ.
ton 45o Of the oode to set aside fraudulent deed and
subject the premises to the payment Of his Judgment
he should that the Judgment debtor has not sun
aver that an sgecutio has been issued. and returned
mo property" etc. 1t 10 the fact and not mere e0t.
dscs Of the fact which that section requires as the
basis OF the action.
Judgment reversed and cause remanded.
No 90. Richard Morgan v. Thomas Boyd, In error
10 the District COURT Of Delaware county.
/. where party having presented his bill Of ex.
ceptions for allowance, and also fled motion for
trial. In the case, during the trial term, and suf
ers his application and motion TO DO continued TO the
next term Of Court without objection, he thereby
looses the benef OF his application for the allowance
Judgment affirmed.
No. 6l. Thomas Smith, executor, etc., v. Alexander
M emith and others. Reserved in the District Court
Of Loran county. ..r-
Sutlif o. ]. Held:
l. That the provisions Of the act entitled "An act sup
Elementary to the several acts relating TO the record
Ing Of deeds, mortgages etc. passed March Is, ST. re-
qurng mortgages to be recorded In the set Of record
books denomnsted Record Of Mortgages is merely d-
rectoryt 70 tho hocorusfs
g That's mortgage deed duly executed and delivered
to the recorder for record since the passage Of said
aot and BY him recorded record book Of the record
OF deeds" and indexed In both the volume index and In
the general index with the letters mtg annexed, and
returned 10 the mortgage, 10 operative as mortgage
against subsequent purchaser for value without actual
knowledge Of said mortgage
Scott J. dissenting. Judgment for plalntif
MOTION DOCKET.
No. A.. John II. Banter v. Jacob TrembIy. Motion
lAaVe 10 ale petition In Overruled.
No. IS. Henry Ebbert v, Robert w. Tayler, Auditor
OF State. Alternative writ Of mandamus allowed.
No. 40. Phillip Hartamb V. Morel Snyder OF al Mo-
ton for leave TO hle petition In error overruled.
No. AZ. The Auditor Of Warren county Y. The State
Of ohio ex rel. William Adams. Motion for leave to
ne petition in error. Passed for notice Of motion.
Adjourned until Thursday morning, January 1st, at
10 o'clock. 4