in dispute to his lessor.

The execution of this lease was attested by three witnesses, one of whom was the township clerk. It was not acknowledged before any judge or justice, but was recorded. The defendant objected to the lease being given in evidence; the objection was sustained, and the plaintiff became non-suit.

A motion was made to set aside the non-suit, and award a new trial, on the ground that the court mistook the law in rejecting the lease. The decision of this motion was adjourned to this court.

Beebe, for plaintiff. Stokely, for defendant.

By the COURT.

The lease offered in evidence in this case and rejected, is dated December 28, 1822, and appears to have been recorded January 8, 1825. It was made under the provisions of the act to provide for leasing certain school lands therein mentioned, passed January, 27, 1817. (vol. 15, 292.) This act is silent as to the mode of executing leases; but the third section requires, that leases executed under the law shall, "in all cases, be recorded by the clerk of the township, and also by the recorder of the county at the proper costs and charges of the lessee or lessees."

As the act providing for making these leases prescribes no particular mode of executing them, the court are of opinion, that they can only be valid when executed conformably to the general law. By the act of Feb. 24, 1820, (vol. 22, 219) it is distinctly required, that in addition to being signed and sealed in the presence of witnesses, deeds, for the conveyance of lands, shall be acknowledged before a judge of the court of Common Pleas, or a justice of the peace. This provision extends not only to deeds, but to “other instruwents of writing, by which any lands, tenements or hereditaments shall be conveyed, in whole or in part, or otherwise affected, or incumbered in law." The lease in question has not been thus acknowledged; it has not, therefore, been executed agreeably to law, and cannot invest the lessor of the plaintiff with title. It was properly rejected, and the motion for a new trial must be overruled.

VANCE v. BANK, OF COLUMBUS.

Poundage is only due to the Sheriff where he has actually made and received the money on exe cution. He is not entitled to poundage when the money is paid by the debtor directly to the plain

tiff.

This cause came before the court upon a writ of certiorari from the Supreme Court of Champaigne county, to the court of Common Pleas of the same county. The facts of the case were these: At the April term of the Common Pleas, 1822, the bank obtained a judgment against Vance for 6000 dollars, upon which an execution was issued and levied upon real estate. A sale not being effected, in consequence of no person bidding the proportion of the valuation required by law, the execution was returned with the levy and valuation, and endorsed not sold for want of bidders. Several successive writs of venditioni exponas were

After the last vendi. was thus

issued, upon which the same return was made. returned, Vance paid the money to the bank, and paid up all the costs, but the poundage claimed by the sheriff. This he refused to pay, and made a motion in the Common Pleas to have an entry of satisfaction made on the judgment.— This motion was resisted, and overruled by the court. To reverse this order the certiorari was brought.

Mason and Cooley, for plaintiff in certiorari.

By the COURT.

The distinction taken by the counsel, between the language of our statute and that of other countries referred to, is a very clear one. The phrase "money made on execution" can only relate to such sums as are actually paid into the sheriff's hands, upon the execution. The money is not made by the officer, when paid directly by the debtor to the plaintiff. A different construction would imply that the poundage was given merely to swell the bill of costs, and increase the sheriff's perquisites, and to this we cannot assent. We agree with the counsel, that is given as a compensation for services really performed.—When this is not done compensation cannot be claimed. The order must be reversed, and the Common Pleas instructed to enter satisfaction on the judg

ment.

FULTON ET AL. v. STUART.

Where a lessee assigns a part of the premises to a third person, for the whole term of the lease it is but an under-leasing, and the lessor can sustain no action on the lease for rent against such assignee.

This was an action of covenant brought from Muskingum county. The declaration sets forth a lease for years, from the plantiff to Jeremiah P. Munson, and alleges, that all the estate, right, title, and interest of the said Munson, the lessee, to the demised premises, except thirty feet square of vacant ground, by assignment came to the defendant, who had occupied the same, and assigns the non-payment of the rent reserved as a breach. The defendant demurred gen

erally, and the decision was reserved.

Silliman and Spangler, in support of the demurrer. Culbertson, contra.
By the COURT.

shorter pe

It seems to besettled, that where a lessee assigns his lease for any riod of time than that for which the lease was granted, the lessor cannot sustain an action of covenant against the assignee upon the lease; because this is considered, not an assignment of the whole term, but an underletting. The principle applies with at least equal force to the case of an assignment, or underletting of a part of the premises only.

If the lessee constitute two under tenants, by assigning one third of the leased premises to one, and one third to another, retaining one third himself, the lessor may have three distinct actions; and in apportioning the rent, the aggre

gate given against each might amount to more or less than the amount reserved, and the parties in either case would be without remedy. If the lessee underlet or assign the whole premises in unequal quantities, to different persons, the lessor will be driven to as many actions against different persons to recover his rent, instead of having one action against the lessee. For the separate assignee

of a part can neither be charged with the whole rent individually, nor jointly, with one or more of his co-tenants.

In this case the declaration states, that the defendant was not assignee of the whole premises; he did not take, and does not hold, the whole term of the ori. ginal lessee. The demurrer must, therefore, be sustained.

LESSEE OF BENTLEY'S HEIRS v. DEFOREST.

JUDGES PEASE AND BURNET.

1826.

An assignment, by a grantee, upon the back of his deed, "of all his right and title in the deed" to the plaintiff, does not pass such a title as will enable the plaintiff to recover in ejectment. Such an assignment might perhaps be considered in equity as an executory contract.

This was an action of ejectment. The plaintiff having offered in evidence, a deed conveying the premises in question, from Adgate to Vanderbarrack, with an indorsement thereon, subscribed by Vanderbarrack, by which he assigned all his right and title in the deed to Bentley, under whom the lessors of the plaintiff claimed as heirs at law, rested his cause.

Webb, for the defendant,

Moved to overrule the testimony, and for a non-suit, on the ground that the deed and assignment did not show a title to the premises in Bentley, the ancestor of the lessor.

Wheeler, for the plaintiff,

Contended that the laws of Ohio, did not prescribe any particular form of transferring the title to real estate. That the assignment was in fact a deed, and that the intention of the parties was sufficiently manifest to require the court. to give it effect.

By the COURT.

There never has been a time, since the establishment of the territorial gov. ernment, when the title to real estate could be conveyed by an assignment, indorsed on a deed. The ordinance for the government of the territory, provided, that real estates might be conveyed by lease and release, or bargain and sale, signed, sealed, and delivered, by the person, being of full age, in whom the estate might be; attested by two witnesses, provided such conveyances be acknowledged, or the execution thereof duly proved and recorded, &c. This form of conveying real estate has been recognized ever since.

The indorsement relied on as a deed, conveys nothing but the instrument

itself. It may vest in the assignee a right to the paper and the wax, but it canbot affect the title to the land. It does not describe the land, or purport to convy it, much less does it contain the operative words of a grant. It is an assment of all the night and title of the assignor in the deed on which it is written. In equity it might be considered as an executory contract, and on proof of the facts connected with it, might entitle the assignee to a decree for a specific performance, but it cannot operate as a conveyance of the legal title. Judgment for defendants.

LESSEE OF ELY v. MCGUIRE.

JUDGES HITCHCOCK AND BURNET.

1826.

Where the mortgage money is due and unpaid, the mortgagee may recover the mortgaged premises in ejectment.

Mortgaged premises may be sold on judgment, and execution against the mortgagor.

The title of mortgaged premises remains in the mortgagor as against all the world except the mortgagee, and also as against him, until the mortgage is forfeited.

This was an ejectment, brought by a mortgagee against the mortgagor, after the whole of the mortgage money had become due and payable.

The case was submitted without argument, on the single question, whether the mortgage deed be sufficient evidence of title, to sustain the action.

By the COURT.

We have always considered the title of mortgaged premises to remain in the mortgagor, as against all the world, except the mortgagee, and also as against him, until the deed becomes absolute at law, by the non-performance of the condition, and the mortgagee takes legal steps to reduce the premises to possession. On this principle we have decided, that mortgaged premises may be sold on judgment and execution against the mortgagor, and that a mortgage, executed by the defendant, before the judgment, could not be set up as evidence of an outstanding title in an action of ejectment, brought by a purchaser under the sheriff, against the person in possession under the mortgagor, on the ground, that as the mortgage did not divest him of the legal title, the judgment was a lien on the premises, subject to the mortgage. In this case, it appears that the money secured by the mortgage was due and unpaid. The condition was therefore broken. The deed has become absolute at law, and the plaintiff has a right to recover.

Judgment for the plaintiff.

LESSEE OF PHELPS v. BUTLER.

JUDGES PEASE, HITCHCOCK, AND BURNET.

1826.

The execution and delivery of a mortgage does not divest the mortgagor of his legal title.

A judgment is not a lien upon after acquired lands until actual levy.

A party in possession of land, which has been sold on judgment and execution against him, cannot defend himself, in ejectment, against the purchaser at sheriff's sale, by setting up a mortgage executed by himself, before the judgment became a lien on the premises.

The equity of redemption may be sold on execution at law.

The cause was submitted to the court on the following agreed case. On the 6th of March, 1819, A. Tannehill recovered a judgment in the court of common pleas of Geauga county, against S. Butler, the defendant, on which an alias fi. fa. issued on the 24th of August, 1824, under which the land in question was levied on, sold, and purchased by the lessor of the plaintiff, and a deed thereof duly executed to him by the sheriff. The defendant obtained a legal title to a part of the land in question on the 27th of May, 1820—and to the residue on the 9th of February, 1822. On the 19th March, 1822, the defendant executed a mortgage deed on the same, to S. Hinchley, to secure the payment of $628,40. The plaintiff rests upon his title under the purchase at sheriff's sale, and the defendant sets up the outstanding mortgage in Hinchley. The defend. ant is in possession.

Wheeler, for plaintiff. Sloan, contra.

By the COURT.

The main question set up in the defence is, whether a person in possession of land, which has been sold on judgment and execution against him, can defend himself against the purchaser under the sheriff, by setting up a mortgage exe. cuted by himself, on the premises, before the judgment became a lien on those premises. The question may be so stated, because it has been decided by this court, in Rhodes v. Symmes, (1 Ohio, 313,) that a judgment is not a lien on after acquired lands, till a levy is actually made, consequently the case stands as it would have done, if the mortgage had been executed before the rendition of the judgment.

It has been decided by this court, as often as the subject has been presented, that the execution and delivery of a mortgage, does not divest the mortgagor of his legal title. In Hitchcock v. Harrington, (6 John. 290.) it is stated by Kent, Ch. Jus. to be the settled law in that court, and in the court for the correction of errors, that the mortgagor is to be deemed seized, (notwithstanding the mortgage,) as to all persons, except the mortgagee and his representatives. When the interest of the mortgagee is not in question, the mortgagor, before foreclosure or entry under the mortgage, is now considered at law, as the owner of the land, and it was decided in that case, that neither the heir of the mortgagor, nor his assignee, could deny the seisin. The mortgage is for the exclusive benefit of the mortgagee, and those claiming under him, and until steps are taken to en