
    Joseph Harrison v. Rassellas Castner.
    1. Upon a question whether a parol agreement had been made between M. and E. for an exchange of tracts of land, the deed from M. to R. for one of the tracts was offered as an item of proof to show the agreement of R. to convey the other tract. This deed recited that the consideration was $2,000 in hand paid. R. then offered to prove that in fact the consideration was natural love and affection. Held — That, in view of the purpose for which the-deed had been offered, it should be regarded as an admission of R., not conclusive, but open to explanation or contradiction.
    2. In an application for the benefit of the act for-the relief of occupying claimants, the mere fact of notice of the claim which is successfully asserted, is not conclusive evidence of fraud and collusion on the part of the purchaser, but he may show, notwithstanding such notice, that he purchased in actual good faith, and made his improvements in the honest belief that the land wag his own.
    Error to tbe district court of Harrison county.
    
      The defendant in error filed a petition in an action for the recovery of real estate in the court of common pleas of Harrison county, November 4, 1854.
    The plaintiff in error answered by a special denial, and, by a second and further answer, set up the statute of limita tions in bar of the claim for rents and profits.
    The case was tried to a jury at the March term, 1855, and-a verdict rendered for the defendant in error.
    A second trial was demanded, under the statute, and an amended answer filed by leave. This answer admits the legal-title of the defendant in error, but denies his right to the possession, as follows:
    “Joseph Harrison, the defendant, for answer to said petition, says, that he admits that the plaintiff has the legal title to the tract of land in said petition described, but denies that he is entitled to the possession thereof, and denies that he unlawfully keeps the plaintiff out of the possession thereof. In further answering, the defendant says, that in the spring of the year one thousand eight hundred and forty-three, one Michael Castner, who was then in life, was seized in fee simple of the said premises, and conveyed the same, by deed duly executed, acknowledged and delivered, to said Rassellas Castner, and that the legal title, so conveyed, is still vested in the said Rassellas Castner. The defendant says, that after the execution and delivery of the deed of conveyance aforesaid, and about the 24th day of May, 1843, it was agreed by and between, the said Michael Castner and the plaintiff, that in consideration that the said'Michael Castner would convey to the said Rassellas a certain other tract of land, situated in the county of Jefferson, and State of Ohio, it being the northwest quarter of section number one, in township number seven, and range number two, that the said Rassellas Castner would re-convey to the said Michael, the premises in the petition of the plaintiff described, and, that in pursuance of said agreement, the said Michael remained in possession of said last mentioned premises until the time of his death. And the defendant further says, that in further pursuance of the agreement aforesaid, the said Michael Castner, by deed dated on ■the 24th day of May, A. D. 1843, conveyed the said premises, so situated in Jefferson county, to the said Rassellas Castner, who took possession of the same, and has since sold them for his own benefit, and has parted with the title thereto. And the defendant says that at the time of delivery by the said Michael Castner to the said Rassellas of the said last mentioned deed, the said Rassellas surrendered and delivered to the said Michael Castner the deed, before that time executed and delivered to'him, for the lands described in the petition, but from that time forth until* the death of the said Michael Castner, the said Rassellas neglected and refused to execute a deed to the said Michael in pursuance of said agreement. And defendant further says, that afterward, and about the 3d day of August, 1843, the said Michael Castner departed this life, and by his last will and testament, afterward duly admitted to probate in the court of common pleas for the county of Jefferson, and State of Ohio, appointed Joseph -C. Spencer, David Moodey and Nathaniel Dike his executors, who entered upon the execution of said trust, and were duly qualified according to law. That by the same will and testament the said Michael Castner directed his executors to sell the premises in said petition described, and to distribute the proceeds thereof among certain legatees in said will named. That in- pursuance of said authority to said executors, by said will vested, they sold and conveyed the same premises to the defendant, by deed duly executed and delivered; and dated on the first day of November, A. D. 1845. That the defendant paid a full consideration therefor, and has remained in the possession thereof since the sale and conveyance aforesaid. Your defendant, therefore, in fact says, that he is invested with the whole equitable title in said premises of which the said Michael Castner died seized, and is entitled by reason of the premises to a conveyance of the legal title by the said Rassellas Castner.”
    To this answer the defendant in error demurred, which demurrer being overruled, he replied by specifically denying the new matter of the answer.
    
      The cause coming on to be heard before a jury, an issue was made up and submitted, as follows:
    “ Does the evidence show that there was an agreement made, as alleged in defendant’s answer, between Rassellas Castner, the plaintiff, and Michael Castner, in his lifetime, by which it was agreed in parol, that the title of the said Rassellas to the lands now occupied by the defendant Harrison, should be conveyed to the said Michael, in consideration that the said Michael Castner should convey to the said Rassellas, certain other lands described in the answer of the defendant? ”
    At this term the jury failed to agree, and the issue was again submitted to a jury, at the November term, 1855, and a second verdict rendered for Castner, the defendant in error.
    Whereupon the cause was appealed to the district court, the demurrer to the amended answer again overruled, and the issue submitted to a jury, which disagreed.
    At the October term, 1858, of the district court, the issues were again submitted to a jury, and a verdict rendered for the defendant in error. Bills of exceptions were allowed as follows:
    FIRST BILL OF EXCEPTIONS.
    “Be it remembered, that upon the rendition of the judgment in this case in favor of the plaintiff, the defendant having made his application to the court for the benefit of the occupying claimants’ law, and proof having been offered by defendant that he had occupied the premises in controversy, in quiet possession, and having shown a plain and connected title in law, derived from the records of the public offices where deeds in the county of Harrison are recorded, and the plaintiff having offered proof only, that prior to the purchase by the defendant of the premises in controversy, notice had been given him of the claim of the adverse title of the plaintiff, and that he purchased with that knowledge. The defendant then offered to show, by proot in open court, that at the time he had taken possession, and from thence until now, for thirteen years, remained in the quiet possession of thn same, and had during the whole of that time made his íd provements in actual good faith, and in the honest belief that he had the legal and equitable title to the same, and without' collusion with any one. Which testimony the court refused to hear, and being of the opinion that the notice of the title or claim of the successful claimant, before his purchase, was conclusive evidence of such legal fraud as to deprive him of the benefit of the act for the relief of occupying claimants, disallowed the application aforesaid. To which refusal to hear the testimony aforesaid, and to which disallowance of the application aforesaid, the defendant excepts, and prays that this his bill of exceptions be signed and sealed; which is done accordingly.”
    SECOND BILL OE EXCEPTIONS.
    “ Be it remembered, that this cause having been called for trial, the court directed a jury to be impanneled to inquire, and render a special verdict upon the fact, whether the parol contract for the exchange of land, described in the answer filed in this cause, was entered into by said Michael Castner and Rassellas Castner as by said answer alleged, and to try the issue joined in the pleadings for the recovery of rents and profits. And the defendant, to maintain the issue upon his part, having offered testimony tending to prove that a parol agreement had, on or about the 1st day of June, 1843, been entered into between the plaintiff and Michael Castner, that the said Rassellas would convey to the said Michael the lands in controversy, in consideration of a conveyance, made by the said Michael to the said Rassellas, of the lands described in the deed next mentioned, then offered in evidence the deed, marked D, hereto attached, and made part of this bill of exceptions, for evidence that the consideration upon which said deed was executed and delivered was a valuable consideration, upon which said deed was executed. The plaintiff, to maintain the issue upon his part, offered himself as a witness for the purpose of contradicting the consideration in the deed mentioned, and of proving that the consideration for the said conveyance of said land was natural love and affection only, and was asked what consideration he had given his father for the Jefferson county land, by said deed conveyed, which, question was objected to, and the witness testified to the jury that he had given his father no consideration whatever, but that the deed was a deed of gift; to which answer the defendant objected, and moved the court that said testimony should be excluded from the jury, which motion was overruled and said testimony permitted to go to the jury. To all of which rulings the defendant excepted. And the plaintiff further offered to prove that said Michael Castner was his father, and that the said Michael had conveyed to him the land in controversy, by deed, about the 10th of May, 1843, and that the said Michael had declared, when said deed was executed, that he gave said land to his son, the plaintiff, to enable him to pay his debts, which amounted to about the value of the land. And that the said Michael, at the same time, declared it was his intention to give more to his said son, and to make him equal with the other children. To all which declarations of Michael Castner, the defendant objects, which objections were overruled, and the testimony admitted, to which the defendant excepted. And the plaintiff having further offered to prove by said witness the extent of the property in lands of said Michael Castner at the time of the execution of said deed, and the number of children he had then living, the defendant objected to said testimony, and the witness testified th^t the said Michael was the owner of a home farm of 800 acres, and other real estate to the amount of 694 acres, and that he had four children living at the time of the agreement aforesaid; that he died on the 20th of April, 1844. To which testimony the defendant objected, and moved the court that the same should be excluded from the jury; which motion was overruled. To which overruling the defendant excepted. And the plaintiff further offered in evidence the will of Michael Castner, a copy of which, marked B, is herewith filed and made a part of this bill of exceptions, to which the defendant objected, and said objection was overruled, and said will was read to the jury, to which the defendant excepted. And the testimony on both sides having been closed, the defendant having opened the testimony without objection, and the plaintiff having offered to the jury, without ■objection, the proof tending to show the value of the annual rents and profits, the plaintiff, before the argument of the cause commenced, moved the court that the counsel of the plaintiff should open and clos’e the arguments to the jury; which motion the court allowed, and directed the arguments to proceed in that order. To which the defendant excepted, and prays that his bill of exceptions may be signed, sealed, .and ordered to be made part of the record in this cause; which is done accordingly.”
    The deed from Michael Castner to Rassellas, dated the 24th •of May, 1843, in consideration of two thousand dollars in hand paid, conveyed certain lands in the county of Jefferson. The will of Michael Castner made no specific mention of the land in controversy. It contained a statement that the testador had made large advances to his son Rassellas.
    
      R. S. Moody for plaintiff in error.
    
      Geiger § Andrews and MU T. Tappan for defendant in error.
   Gholson, J.

To understand the- objections to evidence which were made in this case, it is proper to consider the position of the parties and the issue submitted to the jury.

The controversy was, whether, in the lifetime of Michael Castner, an agreement had been made between him and his son, Rassellas Castner, by which the latter became bound to •convey the land in dispute. This agreement was set up in the answer of the defendant in the action, and denied by the plaintiff, Rassellas Castner. The defendant claimed as the •assignee, under the will of Michael Castner, of an agreement, which it was alleged, created an equitable interest in the land. The issue submitted to the jury was, whether, in fact, there had been such an agreement. The defendant in the action thus standing in the shoes of Michael Castner, any act or declaration which would have been evidence against him, must also be evidence against the defendant, who, as assignee, can .stand in no better position. So the will of Michael Castner is to be regarded as a declaration made by him. The claim-' of the defendant in the action was derived under that will, and he certainly ought not to complain of its use, as evidence, by the other party.

It being claimed, on the one side, that the conveyance of. one tract of land was the consideration for an agreement to convey another in exchange; and, on the other side, that the-object of the conveyance was an advancement from father to-son, we think that the relation in which the parties stood, and the circumstances of the father, might throw light upon the inquiry. The weight, as evidence, of facts of this description, would very much .depend upon the circumstances-of the particular case; but we cannot say they would be irrelevant.

The defendant in the action, as part of his evidence to make out the parol agreement alleged in the answer, having offered a deed from Michael Castner to Rassellas Castner,. which purported to have been made for the consideration of two thousand dollars, the plaintiff, Rassellas Castner, offered himself as a witness, and proposed to prove, that the consideration was, in fact, natural love and affection; and that there was' no other consideration. This evidence was objected to, on the ground that Rassellas Castner was not at liberty to contradict the recital in the deed.

The deed, in view of the purpose for which it had been, offered in evidence, that is, to prove a parol agreement in, reference to land, other than that which it conveyed, amounted-, to no more than the admission or declaration of Rassellas Castner, in reference to the matters stated or recited. The-title to the land conveyed by the deed, was not in question;there was no privity between the parties, as to the estate it created. Considered as such an admission, offered for such-a purpose, we do not think the grantee was concluded by the-recital, as to the consideration, but that, like an ordinary admission, it was open to explanation or contradiction. This-conclusion is fully sustained by the authorities cited by the counsel for the defendant in error. Pritchard v. Brown, 4 N. H. 397, 400; Morse v. Shattuck, Id. 229; McCrea v. Purmont, 16 Wend. 460, 475; Carpenter v. Bullen, 8 M. & W. 209; Gully v. Grubbs, 1 J. J. Marshall, 387, 390; Belden v. Seymour, 8 Conn. 304; Grout v. Townsend, 2 Hill, 554; Beach v. Packard, 10 Vermont, 96; Meeker v. Meeker, 16 Conn, 387; Rockhill v. Spraggs, 9 Ind. R. 30.

An objection was made to the ruling of the court, as to the order of the trial, the defendant in the action having claimed the right to open and close the argument, which was refused.

The plaintiff had opened the testimony without objection,, giving evidence to show the value of the rents and profits, a matter in issue; and we think the court might properly allow him to open and close the argument. But in saying there was no error in this, we are not to be understood as admitting that the action of a court in determining the order of proof or argument can be reviewed on error, especially, where it is not shown, by any statement of evidence, that injustice has been done, or any substantial right prejudiced.

On the application for the benefit of the occupying claimant’s law, proof was offered to show that the defendant in the action purchased with notice of the claim of the plaintiff. The defendant then offered to prove that he had made his improvements in actual good faith, and in the honest belief that he had the legal and equitable title to the same, and without collusion with any one. This evidence was rejected, on the ground that the notice of the title or claim of the successful claimant, before the purchase, was conclusive evidence of such legal fraud,as to deprive the defendant of the benefit of the act for the relief of occupying claimants.

That act, by its terms, only extends to purchasers who have obtained title to, and possession of land, without any fraud or collusion on their part. “ The statute is intended for the relief of those who act in good faith. It was not designed to enable a man, by an act of bad faith, to make another his debtor.” Beardsley v. Chapman, 1 Ohio St. 118. But the statute does not define what shall be deemed an act of bad faith, or provide that notice of a claim which is afterward successfully asserted, shall be proof of bad faith. To show a case of fraud and collusion, a notice of such claim might be essential, and where the circumstances showed that the •purchaser not only knew of such claim, but that it was just, and would, therefore, prevail when asserted, it would be difficult to escape the imputation of bad faith. So it may appear from circumstances, that it was his duty to inquire into the ■validity of the claim, of which he had notice, and that not inquiring, he may be charged with that knowledge, which the inquiry would have afforded. He may not be permitted to shut his eyes to the truth. But we do not think that the mere fact of.a notice of the claim, which is afterward successfully asserted, makes out a case of fraud and collusion, within the meaning of the statute.

In this class of cases, it would be going too far to charge the purchaser with the consequence of not properly understanding the nature of a title, or the character of the evidence by which it might be sustained. According to the language of our decisions under the statute, a belief that the land is his own, has been considered sufficient to protect the occupant. “ The equity of the statute embraces all improvements made in the honest belief of ownership, if at the time of rendition of judgment, the occupant is in possession under such a title as brings him within the meaning of the statute.” Davis v. Powell, 13 Ohio, 308, 320; Longworth v. Wolfington, 6 Ohio, 9. This honest belief is -consistent with notice of a claim, when the circumstances do not show that there was no reasonable ground to suppose that such claim was invalid.

The fraud or collusion required by the statute, must, we think, affect the personal integrity of the purchaser, to the extent, if not of actual fraud, at least of wrongful neglect. “The very title bona fide,” it has been said, “refers more to the integrity of the party, than to the legality of the act, appearing, afterward, by circumstances not within his reach at the time of the transaction: it is an attribute of the person, not of the act.” The John, 2 Dodson, 339. When a purchaser has been informed of a claim to the land, the validity of that «claim may involve questions of law and fact, of no easy solution. The claim may never be asserted, or, if asserted, may fail. If in the honest belief that he has the-better title, he enters into possession and makes improvements, we do not think he can be charged with bad faith.

The result of the views we have expressed, is, that the judgment in the action will be affirmed, and the judgment in the proceeding under the act for the relief of occupying claimants will be reversed. The case will be remanded to the district court, for the purpose of receiving the evidence' rejected, if again offered, and determining whether the defendant in the action is entitled to the benefit of the act for the relief of occupying claimants.

Judgment in the action affirmed.

Judgment in the proceeding under the occupying claimants’ act reversed.

Scott, C.J and Sutlife, Peck and Brinkerhoee, JJ.,, concurred.  