Thus an actual possession commences, seizin and possession to the plaintiff. and a price is paid for the emblements. without reference to the crop. The officer has nothing to do with giving pos session. The person to receive it is uncertain until the sale is effected—and at the sale the purchaser pays for the land only. The cases are essentially distinct in all their principal features. Judgment must be given for the defendant. BYERS v. STATE OF OHIO. Where the proportion of the land tax due to the county has not been paid, the collector, in an action on his official bond, cannot set off county orders against the claim. This was a writ of error to a judgment of the court of Common Pleas of Morgan county, adjourned from that county for decision here. The case was this: Byers was appointed collector of Morgan county, for the year 1824. The other defendants executed with him the official bond required by law, upon which the original suit was brought. The cause was submitted upon an agreed state of facts, which it is not material to recapitulate, as the decision turned upon a single point. When Byers paid into the state treasury the land tax collected, he did not pay the proportion due to the county, and which, under the law, is transmitted by the auditor to the county treasurer; but he obtained a letter from the auditor of state, to the county treasurer, authorizing him to receive the amount of Byers, and give a receipt for it. Byers produced this letter to the county treasurer, and at the same time tendered and offered to pay the amount due to the county, in orders issued by the county, and payable at the county treasury. These orders being depreciated, in consequence of the state of the county treasury, the treasurer refused to receive them, and brought suit on the collector's bond. The court of Common Pleas gave judgment for the plaintiff for the amount, and Byers obtained a writ of error. The collector is, by law, bound to pay all the money he collects, for state tax, into the state treasury. His contract or bond is in conformity with the law, and if he does not make the payment accordingly, he becomes liable. No tender of payment at the county treasury, could discharge or prevent this lia. bility. The condition of the bond was forfeited by the failure to pay within the time prescribed by law, at the state treasury, and the right of action upon it then accrued. The doctrine, that a debt due from the county to the defendant, may be offset against the debt due from him to the state, is altogether inadmissible. The claim of the county, for its proportion of the land tax collected, is upon the state, not upon the collector. The county can, in no form of action, subject the collector. There is no privity between them. Nor can the county be considered as, in equity, the owner of the money sued for. Although it may be admitted that the collector is indebted to the state, the state to the county, and the county to the collector, yet these debts have not been so contracted, or rather have not originated in such manner as to be subjects of offset. The case is not within the principle of any of the cases referred to.— The judgment must therefore be affirmed. 2 HAMMOND, 108. STATE OF OHIO v. TOWNSHIP 4. When the claims of a religious society, for a dividend of section 29. have been erroneously re jected, and the proceeds divided among others, for the proper year, such claim cannot be charged upon the proceeds of a subsequent year. This cause came before the Supreme Court of Warren county upon the return of the trustees of the town. 4, in range 3, to a mandamus, nisi, awarded against them by the Supreme Court at their term in the year 1824, and was adjourned for decision to this court. The society of Shakers, denominated "the United Society of Union Village," are inhabitants of the town. 4, in range 3, of Warren county. In this town. the section 29 is set apart for ministerial purposes. The trustees of the town had refused to distribute any dividend of the proceeds to the society; and, at the May term of the Supreme Court, in Warren county, a rule was made upon the defendants to show cause, at the next term, why a mandamus should not be awarded, commanding them to divide the proceeds of the section so as to allow a dividend to the society. The defendants, in obedience to the rule, appeared at the May term of the court, 1824, and showed cause. Several exceptions were taken to the proceedings; and, among others, the following: that whether the applicants were or were not a religious society, entitled to a dividend of the ministerial section, was a question only triable by jury. This, and all the other causes shown, were adjudged insufficient, and a mandamus, nisi, awarded, requiring the trustees to receive the accounts and claims of the society for the years 1820 and 1823, and give the agent an order on the treasury for the dividend due, according to the number of members of the society, or show cause to the contrary, at the next term. To this mandamus, the acting trustees made a return, that their predecessors in office, for the years 1820 and 1823, considering that the society were not entitled to any portion of the rents, had actually divided and paid out to other societies, all the monies received for those years, so that nothing of the proceeds of those years remained in the treasury, upon which orders could be drawn.Whether this return was sufficient, was the question for decision. Hammond, for the society. Dunlavy, for the trustees. By the COURT. The 14th section of the act of February 6, 1810, to incorporate the original surveyed townships, under which the right is claimed, provides, that the "trustees shall pay to the agent of each society an equal dividend of the rent, accord ng to their numbers, within three months after it is received." The trustees for the time being, acting under this law, decided that the claimants were not entitled, and divided the money within the time prescribed to those whom they adjudged entitled to receive it. It is therefore not subject to the order of the present trustees. The order required, if given upon the specific fund, would be unavailing. And we do not conceive that a general order to be paid out of any moneys in the Treasury, can be given under the law. The proceeds of each year are specifically appropriated to each society, according to the number of its members for that year. There are different owners of the rents of each separate year, and if injustice be done in making one dividend, it cannot be corrected, in a subsequent one, without injustice. We have no doubt but that the Union Society were entitled: a dividend ought to have been made to them; but it was not done. The fund was distributed to others, who are not before the court. Neither are those who made that distribution. The persons entitled to the funds now in the Treasury, or that may come into it, are not parties to this proceeding, and a judgment affecting their rights, cannot properly be pronounced. The consequence of this decision may be the loss of the claimant's right. This, it is admitted is a hardship; but it would be equally a hardship to make them safe at the expense of others. The return is considered sufficient, and a peremptory mandamus cannot be awarded. LESSEE OF WHITE v. SAYRE. A tenant in common or coparcenary, can convey a part of his undivided estate.▾ A deed by a tenant in common or coparcenary, purporting to convey in severalty, is a good conveyance of the grantor's undivided part, within its boundaries. This was an ejectment, and came before the court upon a case agreed, adjourned from Greene county. The facts material to be reported, are these: The defendant was in possession of a tract of land which had been the property of his former wife, by whose death it had descended in parcenary to her eight brothers and sisters; with one of the latter the defendant had again intermarried. By a judicial proceeding in the court of Common Pleas, partition had been made, and a separate part assigned to each by metes and bounds. The lessor of the plaintiff purchased the separate right allotted to three of the heirs, and took separate deeds from each for so much land specifically described. Error was afterwards brought in the Supreme Court, upon the proceedings in partition, and they were reversed. The declaration contained several demises; among others, a separate one for one undivided eighth part of each of the tracts contained in his three deeds; and whether he could recover upon these deeds and demises, was the question submitted to the court. Elsberry, for the plaintiff. Alexander, contra. Opinion of the court by Judge HITCHCOCK. It is well settled that where one joint tenant, or tenant in common, has ejected, or withheld the possession from his co-tenant, the person so ejected or held out of possession, may maintain his ejectment against the ejector, or person in possession. To determine the case under consideration, then, it is only neces sary to ascertain, whether the lessor of the plaintiff took any thing under the three several deeds referred to in the agreed case, or in other words, whether he had any interest in the premises in dispute. The grantors were three of the heirs of the deceased wife of John Sayre, jr. By the death of their sister the interest in the one hundred and fifty-five acres of land was vested in them and their brothers and sisters, as co-parceners, or tenants in common. It is to be observed that when these deeds were executed, partition had been made of the one hundred and fifty-five acres of land, by judgment of the court of Common Pleas, in pursuance of the statute in such case made and provided. The three parcels which were conveyed to White, had been, by this judgment, aparted and set off to the grantors in severalty. Under the then existing circumstances, they conveyed nothing more than they had a legal right to convey. So long as this judgment remained in force, the title of the lessor of the plaintiff to the lands to him conveyed, was perfect. This judgment, however, was subsequently reversed; and it is necessary to ascertain how far the deeds, which were before operative, were affected by this reversal. That the reversal must in part, at least, defeat the operation or validity of those deeds there can be no doubt. The judgment being reversed, the parties in interest could be no more affected by it than if no judgment had been rendered. Under these circumstanccs, the decision of this case must depend upon the solution of these several questions. 1st. Can one of two or more joint tenants, co-parceners, or tenants in common, convey his interest in the estate thus held. 2d. If he can convey his interest or estate in the whole property thus held, can he convey it in a part, merely? 3d. Is a deed, or grant, which purports to convey an estate in severalty, when the grantor has in fact only an estate in joint tenancy, coparcenary, or in common, void; or does it convey the whole interest of the grantor in the premises purporting to be conveyed? 1st. Can one of two or more joint tenants, co-parceners, or tenants in common, convey his interest in the estate thus held? This is a question about which, it is presumed, there can be no dispute.— Such conveyances are frequently made, and their validity is not questioned. In fact, this is one of the most common modes resorted to for destroying a joint tenancy. One joint tenant aliens and conveys his estate to a third person, by which means the joint tenancy is severed and turned into a tenancy in common. 2d. If one joint tenant, &c. can convey his interest or estate in the whole property thus held, can he convey it in a part merely? The determination of this question is attended with considerable difficulty.This difficulty however, arises, not so much from any apparent inconsistency, or impropriety in such grant, as from a possible inconvenience which might result to the tenant who retains his estate. One tenant in common may grant his entire interest or estate in a particular species of property, a tract of land for instance, or he may grant one half as a smaller proportion of his interest in the same entire property. It this be correct, no good reason is perceived why he may not grant his entire interest in a particular part. A and B are seized of a section of land as tenants in common. It is well established, that A may grant his entire interest, or estate, in the section, and the conveyance will be vahid. Upon what principle, then, can it be said, that if he convey his entire interest in a particular quarter of such section, such conveyance shall be void? Certainly A and B, tenants in common as aforesaid, might with propriety unite and convey a particular quarter of the section, and a complete title in the grantee, would be vested. Would not the title of the grantee be equally valid, if the tenants in common should by separate deeds convey to him their individual interest in that particular quarter? This question, it is believed, must be answered in the affirmative, and if so, it proves conclusively, that one tenant in common may transfer to a third person his entire interest in a part of the property held in common. Otherwise we run into this absurdity, that a deed properly executed, by one individual, which is an entire thing, and purports to convey a specific property, must depend for its validity upon the execution of a similar instrument by a third person, who is no way party to the first. The principal reason assigned why one tenant in common shall not be allowed to convey, as before stated, is, that by so doing, he may do a great injury to his co-tenant, by compelling him, in case of partition, to take his proportion of the estate in small parcels, very much to his disadvantage. If such evils would result, they ought if possible to be avoided. It does not follow, however, that because one of two tenants in common can convey his estate in a part of the property so held, therefore the rights of his co-tenant are affected. This co-tenant will still have the same interest in every part, and in the whole of the property. He can still compel partition, and may have his share of the property set off to him in severalty, in the same manner he could have done had no conveyance been made.— Such, at least as at present advised, is the opinion of the court, and if in this we are mistaken, the objection is not of sufficient force to induce us to adopt any other principle as applicable to this case, than as before stated. 3d. Is a deed, or grant, which purports to convey an estate in severalty, when the grantor has in fact only an estate in joint tenancy, co-pa rcenary, or in common, void; or does it convey the whole interest of the grantor in the premises purporting to be conveyed? Every deed is to be so construed as, if possible, to give effect to the intention of the parties. It is to be construed most strongly against the grantor. If the intention of the parties, apparent upon the face of the instrument, cannot be carried into effect, this object should be attained as far as is possible. Taking these principles into consideration, and adopting them as correct, it follows, that where an individual undertakes to convey to another a greater interest in the thing conveyed than what he possesses, the grantee may take that which was in his grantor. A conveys to B one hundred acres of land by metes and bounds. It is afterwards ascertained that C has title to fifty of the one hundred acres included within the boundaries. Will it be said that B can take nothing by this deed? On the contrary, all the lands within the prescribed boundaries, to which A had title, are, by the conveyance, vested in B. So far as the deed can have effect, so far it ought. The circumstance that the grantor has attempted to convey more land than he was possessed of, shall not prevent the deed from conveying that of which he was possessed. Upon the same principle, if A and C had been tenants in common of the same one hundred acres of land, and A had attempted to convey the whole in severalty to B, so far as A had any interest that interest would, by the conveyance, have been vested in B.-Thus far the deed would take effect. Under it B would become tenant in com |