Holden v. Belmont.

held was worth." The verdict returned by the jury was as follows:

"State of Ohio, Cuyahoga county, ss.:

"May term, A. D. 1873, to wit: May 29, 1873:

"We, the jury in this case, being duly impaneled and sworn, do find for the plaintiff in the sum of nineteen hundred dollars ($1,900), and that said plaintiff has no claim, title, or interest in the Tennessee land in this suit, and that said deed for the same is the property of the defendant."

This verdict the defendant below moved the court to set aside, and grant him a new trial on the ground, among others, that the action of the jury had been irregular; that the damages awarded were excessive; that the verdict was contrary to law; was not sustained by the evidence; and was contrary to the charge of the court.

This motion the court overruled, on condition that the plaintiff would execute and deliver to the defendant a quitclaim deed to said Tennessee lands; and the plaintiff having thereupon executed and filed such deed, judgment was entered upon the verdict, to all which the defendant excepted. This judgment was subsequently affirmed by the district court, upon proceedings in error instituted in that court by the defendant below, who now seeks a reversal of both judgments, on the ground, among others, that the court of common pleas erred in overruling his motion to set aside the verdict, and grant him a new trial.

We think that the court of common pleas erred in overruling the motion of defendant below to set aside the verdict of the jury. The verdict shows upon its face that damages were assessed upon a basis unwarranted alike by the pleadings, the evidence, the charge of the court, and the law governing the case. The petition of the plaintiff below asked no rescission of any part of the contract on which his action was brought, but to recover damages for the breach of its stipulations, and for the false and fraudulent representations by which he had been induced to enter into it. The plaintiff still retained the deed, which the evi

Holden v. Belmont.

dence showed that he had received from the defendant for the Tennessee land, and did not propose by his pleadings to reconvey to the defendant the interest or estate, whether legal or equitable, which was vested in him by that conveyance. The effect of that conveyance, made under the circumstances shown by the evidence, was a question of law to be determined by the court, and not by the jury. We think the deed for the lands in question, made by Hill in 1868, if defective and ineffectual to pass the legal title, because no grantee was named therein, must nevertheless be held valid in equity as a contract by which Hill became bound to convey the premises in fee-simple to his vendee or his assigns. The purchase-money having been fully paid, nothing but the naked legal title remained in Hill, of which equity would decree a conveyance to the purchaser, or his assigns. Bare v. Hatch, 3 Ohio, 527; Carr v. Williams, 10 Ohio, 305; Williams v. Sprigg, 6 Ohio St. 585. But, in this case, there is no defect in execution, or otherwise, apparent on the face of the conveyance; and, speaking for myself, I have no doubt that, under the circumstances shown by the evidence, Hill, the grantor, would in equity be estopped to claim that the name of the grantee was not inserted in the conveyance prior to its execution. It is enough, however, to say, that the plaintiff below has become invested with the full equitable title to the land, and all the rights incident thereto. The court, upon the trial, accordingly instructed the jury substantially that the plaintiff could use the deed in question for the purpose of perfecting his legal title, and that they should "take into consideration what that interest was worth." The jury, however, disregarded this instruction, and found by their verdict "that the plaintiff has no claim, title, or interest in the Tennessee land in this suit, and that said deed for the same is the property of the defendant." And this finding evidently constituted part of the basis upon which the damages found by the verdict were assessed. It was not within the province of the jury to find that the plaintiff acquired no interest in the land under the deed which he had received and still

Lahm v. Johnston.

held, or to decree a rescission of this branch of the contract, and reinvest the defendant with the title to the premises. The damages were evidently estimated on a mistaken hypothesis, and the verdict should for that reason have been set aside; and, in refusing to do so, and in entering judgment upon it, we think the court of common pleas

erred.

It follows that the judgment of affirmance rendered by the district court was erroneous, and the judgments of both the courts below must be reversed, and the cause be remanded to the court of common please.

Judgment accordingly.

LAHM ET AL. v. JOHNSTON.

1. An assignment for the benefit of creditors, devotes all the property covered by it to the creditors who have their claims allowed pursuant to the act regulating the administration of assignments, to the exclusion of those who do not.

2. In an action by a creditor whose claim has been duly allowed, on an assignee's bond for a failure to account for any of the property assigned, the amount of recovery can not be limited to an amount proportionate to the whole amount of the claims of all the creditors, including those not allowed, as required by the statute, but the amount of recovery must be controlled by the proportionate amount of his claim to the whole amount of those only which have been presented and allowed pursuant to the statute.

ERROR to the Court of Common Pleas of Stark county; reserved in the district court.

The original action was brought by William Johnston against John Lahm, U. R. Feather, and II. R. Wise, in the Court of Common Pleas of Stark county, on a bond for $50,000, given by Lahm, as assignee of Nixon & Co., with the other defendants as his sureties, conditioned that the said Lahm should well and truly, and according to law,

Lahm v. Johnston.

perform all and singular the duties devolved upon him in the acceptance of the trust, and truly and correctly account for and pay over all moneys that came to his hands as such assignee.

The assignee entered upon the discharge of his duties, April 20, 1871, and received a large amount of property under the assignment. On the 2d day of September, 1871, the plaintiff presented his claim of $1,100 against the assignors, duly verified by his oath, to the assignee for allowance; but the same was rejected by the assignee. He thereupon brought suit against the assignee for its allowance pursuant to the statute, and the court ordered the assignee to allow the claim as a valid one against the assets of Nixon & Co. in his hands.

After more than eight months had elapsed from the time of the acceptance of the trust by the assignee, the plaintiff' demanded payment, which was refused by the assignee. The plaintiff thereupon caused a citation to be issued by the probate court to compel him to settle and account for the assets in his hands as such trustee, which he neglected and refused to do. The assignee having transferred all the assets back to the assignors, the plaintiff brought this suit on the bond.

According to the inventory filed by the assignee, the assets of Nixon & Co. that came to his hands amounted to $77,252.32, and the debts amounted to $238,098.02, as shown by the books of the company. Only about $40,000 of the debts were presented to the assignee for allowance pursuant to the statute.

As to the disposition of the property, the assignee testified, on the trial, as follows:

"On the 13th day of July, A. D. 1871, about three months after I was appointed trustee, the creditors who represented at least $236,000 of the indebtedness of said Nixon & Co., came to me in person and exhibited to me their claims, and requested me to reconvey and redeliver to said Nixon & Co. the property and effects included in their assignment, and gave me written releases from all liabilities or damages on

Lahm v. Johnston.

account of their claims, if I would so redeliver to said company the property assigned by them. As there were only about $2,000 of debts against said company not so represented, and as Nixon & Co. agreed to protect me against any liabilities on their account, I consented to, and did, on the said 13th day of July, reconvey and redeliver to said company all the property assigned by them, except about $400, the costs of administration."

On cross-examination of the witness, defendants offered to prove that legal and valid debts of Nixon & Co., amounting to $198,000, over and above the $40,000 which had been presented to the trustee duly sworn to according to law, and which existed at the time of the assignment of Nixon & Co., were presented to the trustee by the bona fide creditors of Nixon & Co. before the time had expired in which creditors had to present their claims, verified according to law, under an arrangement they had with Nixon & Co. to have the assignment vacated, and the property reconveyed to Nixon & Co., but did not propose to show that said $198,000, or any part thereof, had been verified according to law, and admitted that they were not; whereupon the plaintiff objected to the admission of said testimony, which objection was sustained by the court; to which opinion of the court the defendants excepted.

Defendants also, on cross-examination of said witness, offered to prove that the assets of Nixon & Co., in the hands of the assignee, would not have paid over thirty cents on the dollar of the indebtedness of said company, had the trustee gone on and executed the assignment, and settled up the estate, and had the creditors presented their claims verified according to law; whereupon the plaintiff objected to the admission of said testimony, which objection was sustained by the court; to which ruling of the court the defendants excepted.

And thereupon the defendants offered to prove that the assets of Nixon & Co., in the hands of the assignee, would not pay over thirty cents on the dollar of the indebtedness