
    Henderson W. Horton v. James Horner.
    A case appealed from the court of common picas, must be heard in. the> Supreme Court, upon the same pleading as in the court below,, unless changed, upon good cause shown, by order of the Supreme Court.
    Where a note is executed in the State of New York, payable in thafcstate, the ■ maker residing there, it is controlled by the statute of limitations ofi that, state, when properly pleaded.
    This is a bill in chancery, and comes before this court, by ap*peal from the court of common pleas of' Lucas county.
    
      The object of the bill is to collect a claim in favor of the complainant, as assignee of James H. Forsyth, against the defendant, *for the purchaso money of a tract of land sold by Forsythto the defendant, and to enforce the-vendor’s lien for said purchase money.
    The bill states that on July 5, 1836, James H. Forsyth, by verbal agreement, sold the defendant, for $2,844, one-half of a certain ninety acres of land ; that, in performance of that agreement on his part, he, on the same day, conveyed the same land to the defendant ; that no part of the purchase money has been paid, but the whole amount, with interest, is now due; that on October 24, 1840, Forsyth quitclaimed his interest in the land to complainant, and by same deed, assigned his claim against Horner for the purchase money due, and empowered the complainant to sue for, and recover the same ; that the claim for the purchaso money is an equitable lien on the land, and operates as a mortgage; prayer for an account and decree against Horner to pay the amount due, or in default, that his-right in the premises may be foreclosed, and .for general relief. The bill was filed April 1, 1843.
    This bill was answered on August 15, 1843. In his answer, the defendant admits the conveyance from Forsyth to defendant, and that the consideration mentioned in the deed, is $2,844, but expressly denies any agreement on his part, to pay that sum, or any other, for that conveyance ; and claims that Forsyth was, at the time of the conveyance, indebted to tho firm of E. Corning & Co., of which firm defendant was a partner in a large amount, and 'that Forsyth agreed to convey the land in controversy to defend.ant, to be by him held as security until the debt was paid ; that 'tbe-deed was afterward prepared and executed at the instance of 'Forsyth, and made absolute without any authority from defendant; that the amount of the consideration was stated in the deed without his knowledge or authority; denies any agreement to pay purchase unoney, and also that any money is now due from him on account of such -conveyance, and puts the complainant upon the proof of his title.
    ^General replication was filed to this answer August 24, 1843, and testimony was subsequently taken.
    At the June term of the court of common pleas, 1844, the following order was made: “ In this cause defendant has leave to file amended and supplemental answer upon the payment of the costs, since filing the original answer.”
    The supplemental answer was filed August 23,1844, and sets up the statute of limitations of New York and Ohio, and the statute of frauds of the same states, and also alleges that, since tho filing of the original answer, defendant has discovered that, although the deed from Forsyth to him was dated July 5, 1836, it was not acknowledged until Januai’y, 1837, and was not delivered until some time thereafter. Tho defendant also claims, in this answer, that all the matters set forth in the bill are such as may be tried at law, and that a court of equity can grant no relief.
    At the second term of the court of common pleas, after thia answer was filed, a motion seems to have been made in that court that it should be stricken from the files, for reasons in said motion stated.
    What disposition was made of that motion does not appear, but the case seems to have been heard in that court upon the pleadings as before stated.
    E. Lane and N. Rathbun, for complainant:
    The amended and supplemental answer was improvidently admitted upon the files, and should bo stricken off. Amendments in chancery are always allowed with great liberality, except in case of answers put in under oath; there leave is granted with great caution. Cook v. Evans, 9 Serg. 287; Thorn v. Germand, 4 Johns. 363.
    Tho court will not grant leave to amend for the purpose of setting up tho statute of limitations, except under peculiar circumstances. Sheets v. Baldwin’s Adm’rs, 12 Ohio, 120 ; 5 Dana, 82.
    *Tho statute of frauds does not apply. The case is taken out of the statute by part performance, to wit, tho delivery of the deed. Holt’s Heirs v. Hemphill’s Heirs, 3 Ohio, 238; Sites v. Kellar et al., 6 Ohio, 483; Pollard v. Kinne, 6 Ohio, 528.
    Neither does the statute of limitations apply. The action occurred within six years prior to the commencement of the suit. There being no time fixed for the payment of the debt, it was a debt payable on dorahnd, and the statute does not run against a debt payable on demand till demand made. Wright, 342, 526, 582; 16 Eng. Com. L. 344.
    But if the action were barred by lapse of time, it has been revived by the acknowledgment of the defendant. 2 Amer. Ch. Dig. 142, 149 ; Maury’s Adm’rs v. Mason’s Adm’rs, 8 Porter, 212; Wilcox Dig. 366.
    Young and Waite, for defendant:
    The court will not entertain the motion to strike the supplemental answer from the files. Granting leave to make corrections in pleadings is a matter resting in the discretion of the court to which the application is made, over which discretion the court of appellate jurisdiction will not exercise a control. Coffman v. Allen, Litt. Sel. Cas. 201; Jackson’s Assignees v. Cutwright, 5 Munf. 308.
    The complainant shows, by his bill, that he is not entitled to relief. He is seeking to enforce a vendor’s lien. This is personal— not capable of assignment. Jackman v. Hallock et al., 1 Ohio, 318; White v. Williams, 1 Paige, 506; Inglehart v. Armiger, 1 Bland, 524; Brush et al. v. Kingsley et al., decided during the present term.
    As this is a ease where a party is seeking to enforce a parol contract for the purchase of land, he must make clear proof. Phillips v. Thompson, 1 Johns. Ch.131; Eliason v. Henshaw, 4 Wheat. 225.
    *But no matter how clear the proof, we contend the action can not be sustained, inasmuch as the contract is affected by the statute of frauds. Ontario Bank v. Root, 3 Paige, 481; Coine v. Graham, 2 Paige, 181.
    There has been no such part performance as takes the case out of the statute, inasmuch as both parties may be placed in the same situation as before the part performance. Phillips v. Thompson, 1 Johns. Ch. 131;. Sites v. Keller et al., 6 Ohio, 490; Pollard v. Kinne, 6 Ohio, 528.
    We also claim that tho action is barred by the statute of limitations, and that this court should not retain jurisdiction of the case, because the complainant has adequate remedy at law.
   Hitchcock, J.

The first question presented to the court for consideration is on a motion made by complainant, similar to the one made in the court of common pleas, to strike from the files the amended and supplemental answer, setting up the statute of limitations and of fraud.

Section 114 of the practice act (Swan’s Stat. 684) provides, That when any cause is reserved by appeaL to the Supreme Court, the appeal shall be tried on the pleadings made up in the court of common pleas, unless for good cause shown ; and on payment of costs, the court should permit either or both parties to alter their pleadings;” and the same rules apply in chancery as at law. Now this is not a motion by either party to change or alter their own pleadings. It is a motion by one of the parties to change the pleadings of his antagonist, by striking from the record, or, which is the same thing, from the files, a portion of those pleadings. This can not be done, except under extraordinary circumstances. Whether the court of common pleas exorcised a sound discretion in allowing this answer to be filed, it is impossible for us to know, from anything disclosed in the case. Had that court been of the opinion that the indulgence given to the defendant to file an amended and supplemental answer, had been *absurd, the motion to strike that answer from the files would unquestionably have been sustained. In the case of Sheets v. Baldwin’s Adm’rs, this court held that the statute of limitations is not to be favored, and that a defendant in default will not bo permitted to plead it, unless under peculiar .circumstances. 12 Ohio, 120. But by the representation made to the court of common pleas, to obtain leave to file this answer, that tribunal may have been satisfied in this case, that peculiar circumstances existed to justify a departure from the general rule.

It is possible the court may have been influenced by the facts disclosed in the case, from the evidence then on file; evidence from which it appears that the complainant, although he charges that this claim was assigned to him in 1840, did not in fact become fully entitled to it until on the day the bill was filed, and from which it further appears that the pretended contract between Eorsyth and Horner, although mado in July, 1836, when the land in dispute was supposed to be worth some sixty-two or sixty-three dollars per acre, was not executed by Forsyth until the January tollowing, when the same land had dejmeciated in value from thirty-five to fifty per cent., and which is not worth now to exceed ten or fifteen dollars per acre. And when executed, it was not done by deed delivered personally to Horner, but by deed transmitted to him by mail to New York. And from which evidence it further appears that Forsyth is still indebted to E. Corning & Go., of which firm Horner is a partner, in a sum of some f 1,200 orüpl,500, an amount far greater than the value of the land; and that from this liability, Forsyth is discharged under the bankrupt law. These circumstances might have had some influence with the court. Whether they had or not, it is impossible for us to know. But we do know that the defendant was allowed to file this answer, and the court in which it was filed, refused to strike it from the files. It is now before this court as a part of the record, and we shall not, for any reason hitherto urged, change that record.

*Much testimony has been taken in the case to settle the controverted fact set up in the bill, and denies in the answer, whether there was an absolute sale of the land in controversy by Forsyth to Horner. And it is a point in the case, which has been fully examined by counsel, it being ds strenuously urged, on the one side, that there was an absolute sale, as it is on the other that the conveyance was intended merely as collateral security for a debt due from Forsyth to E. Corning & Co. Upon this point the court have not been able fully to concur in opinion.

But admitting that the sale was absolute, and for the consideration mentioned in the bill, is the complainant entitled to a decree? As a defense, the defendant sets up the statutes of limitations, both of the States of New York and of Ohio. Courts of chancery regard such statutes as much as courts of law; for if they do not, still a claim which would be barred at law, must, if prosecuted in chancery, be governed by the same rule. The bare circumstance that it is prosecuted in chancery, can not take it out of the statute. Now there can be no doubt but that this claim might have been prosecuted at law. What is it? Merely a demand for the purchase money for land sold. A proper subject for the jurisdiction of a court of law, and of which a court of chancery can not take jurisdiction, unless it is upon the ground that the complainant is the assignee of a chose in action, which is not negotiable. Perhaps, however, it may be thought a court of equity might take the jurisdiction on the ground that one object of the bill is to enforce the vendor’s lien. According to our views of the law, and according to the decisions of this court, this lien can not be transferred by the act of the vendor, so as to vest the right to enforce it in his assignee. It was so held in the case of Jackman v. Hal-lock, 1 Ohio, 318, and has beon so hold at the present term.

The complainant, then, might have had his action at law in the name of his assignor, for his use. This would have been his appropriate remedy. But in such case, the statute of -Nimitations might have been pleaded in bar. By commencing his suit in chancery, he can gain no advantage in this respect. If his demand is barred at law, it must be in chancery.

Now what are the facts ? The deed of conveyance from Forsyth to Ilorner, although it bears date in July, 1856, was not acknowledged until January 7, 1837, and recorded on the 28th of the same month. . Between these two dates, if all was fair in the transaction, it must have been delivered to Samuel H. Young, who transmitted it to Ilorner early in March of the same year — Horner then being a residont of Albany, in the State of New York. The contract for the sale, if any existed, was made in the State of New York. It is so stated in the bill, and so proved by the testimony-The complainant claims seven per cent, interest, on the ground that the payment was to be made in the State of New York. There was no specific agreement as to the time in which payment was to be made. From these circumstances, we have come to the conclusion, that Horner was liable to pay, upon the delivery of the deed, and when the deed was delivered, a right of action accrued to Forsyth. This delivery took plac^in January, 1837, although probably Horner did not receive the doed until some time in the month of March following. The bill in this case was filed on April 1, 1843. In what manner notice'was given does not appear. It probably must have been by publication, as Horner is not a resident of the state. Let this be as it may, six years had transpired from the time the cause of aetion accrued before the bill was filed. But it is said'that, within that time, there was an acknowledgment of the existence of the debt. We do not so understand the testimony. Again it is said that the defendant is a resident of the State of New York, and not within the State of Ohio, so that our statute could not begin to run. This debt was contracted in the State of New York; it was to be paid there; the debtor has always resided there. By the statute of that state, which is set up in the answer, the claim is barred. And our statute of limitations ^provides 'that where a contract is barred by the law of the state where it was made, the statute of such sister state may be set up as a bar here.

Upon a full consideration of the case, we are of opinion that tho case is with the defendant, and the bill must be dismissed.  