
    *Heirs of Sullivant v. Commissioners of Franklin County.
    Deed to the county commissioners, for lot on which to erect a jail, though not operative as a conveyance, is good as a license to enter and possess for the purposes specified.
    This cause was adjourned here for decision, from the Supreme Court of the county of Franklin, on a motion for a new trial.
    In the month of April, 1808, Lucas Sullivant and wife conveyed in-lot No. 25, in the town of Franklinton, to the commissioners of the county, for the time being, by name, and to their successors in office. The writing intended for a deed contained, besides the operative terms of conveyance, this proviso : “ Provided, however, and this conveyance is made on the express condition and no other, that the jail or prison house, when built, shall be built on said lot No. 25.” The jail was erected upon the lot, and continued there, and was used as a jail when this suit was brought. But- in 1826, the legislature removed the seat of justice fx’om Franklinton to Columbus, and, in the summer of 1827, a new jail was erected there. The deed from Sullivant and wife, though signed and sealed and acknowledged before a justice of the peace, was not attested by any subscribing witnesses. The heirs of Sullivant brought the ejeetment, and on the trial, the cause being submitted to the court, a proforma judgment was entered for the defendants, and a motion made by the plaintiff, for a new trial, upon a case .agreed.
    Leonard, for plaintiff:
    The question in this case grows out of the covenant of warranty ■ contained in the deed, made by Lucas Sullivant to the commissioners. The deed is defective for two reasons: First. Because there is no pecuniary or other sufficient consideration inserted in it. The deed must take effect, if at all, as a deed of bargain and -sale, and, to support such a deed, a money consideration should be •inserted in the deed. See Cruise Digest, title Deed, chap. 11, secs. 5-12, 22-25 ; 3 Johns. 484; or if any consideration other than .money will answer, it must be a valuable consideration to the bargainer, and not a contract made by the bargainee with another to erect buildings; and it must likewise be a contract *executed, and not executory. See same case, and, especially, 3 Johns. 484.
    
      Secondly. But the statute in this state provides a mode of executing deeds for the conveyance of land. It prescribes certain ceremonies, among which it is one that there shall be two witnesses to the deed — in this case there are no witnesses whatsoever. This, therefore, conveys no estate; it is totally and for every purpose void. It is the same as no deed. There is, however, an attempt to set this deed up, by the warranty. The rules on the subject of warranty are laid down in 7 Bac. Abr. 228, title Warranty. The ruléis, that the warranty is void unless there is an estate created on which the warranty can operate. If there is no estate, then there is no warranty. Warranty is a covenant real, annexed to lands and tenements. If there is no title, there is nothing to which the warranty can be annexed. It is said that the warranty is designed to operate in the very case in which the deed is void. No such thing ; the object of the warranty is to protect the estate created by the deed, as in case of eviction, to enable the party evicted to recover over the value of his land, “ and either, upon voucher, a judgment in a warrantia chartoe to yield other lands and tenements, to the value oí those that shall be evicted by a former title, or else may be used by way of rebutter." Coke Lit. 365, a; 22 Cruise, tit. Deed, chap. 2, sec. 69.
    Ewing, for defendants:
    1. The deed by Sullivant to defendants, though informally drawn, contains on the face of it a sufficient consideration. The grantees are about to erect a public building; in consideration that they will erect it on the spot designated by Sullivant, he grants them' this lot, to be its site, and the, grant is to be void, if the consider-' ation be not complied with.
    2. Although the deed have no subscribing witnesses, yet, as it contains a covenant of warranty, it is <good by way of rebutter in ■ this action.
    The eases from the elementary books, cited by plaintiff’s counsel, rest for their authority on Seymore’s case, 10 Rep. 96, where it is said, “ that every warranty ought to be knit and ^annexed to an estate, for every warranty has its essence by its dependency upon an estate.”
    Neither the point that was adjudged by the court, in that case, nor the language of the court, go to avoid a warranty, on account of the defective execution of the deed which contains it. In the case of Seymore, an estate, with reaimnders over, was created by devise, which was afterward passed by fine with warranty. It was held that the warranty ceased with the estate to which it was attached, and that the remainder mentioned, was not barred by it. The language of the case means simply this, that the warranty relates to the granting words in the deed, and can not be extended beyond them, because the clause of warranty is attached to the granting clause as its incident. But to make the warranty effectual, it is not necessary that the instrument which contains it, should pass any title independently of the warrant- For example, a release without warranty by a person who has no title, is void, even against the releasor, if he afterward acquire title. But with warranty, it rebuts the leasor and his heirs. C. L. 265, a.
    N or is even a capacity in the grantor to take by the deed, necessary to render the warranty effectual against the grantor and his heirs. 9 Cranch, 52, 53; 9 Wheat. 445, note.
    To determine the extent of a principle of law, the reason on which it is founded is to be sought. The rebutter, by warranty, operates solely to prevent circuity of action; it must, therefore, operate in all eases where there would otherwise be that circuity. If the grantor, having evicted his grantee, would be liable on his covenant to keep him in possession, he shall be rebutted by that covenant, for it would be trifling with justice to permit the grantor to recover the possession, and then hold him responsible in damages for the eviction. ' If we be evicted in this action, we can sustain our action of covenant on the warranty. That covenant goes to the possession, and, although our title may be defective, tho covenant is executed with all legal formality, and if it be broken we can recover damages for the breach. It may be urged that the application of this principle would defeat the effect of the statute prescribing the mode of executing deeds. But where is the injury, if, by the application of a well *known legal principle, there are certain cases taken out of the operation of the statute. Clearly, the defect in the execution of this deed would be remedied in a court of equity — why, then, should this court refuse to apply a legal principle, which will cure the defect at law, or, in other words, why extend this statute by equity, to defeat at law the very estate which a court of equity would set up and protect. A statute is to be construed according to the principles of the common law, 11 Mod. 150, hence, a provision in a statute is to have the same effect as il, in other words, it were common law of undoubted authority, and it is to be extended no further, unless to meet some manifest intention of. the legislature. As no such intent is manifest here, this statute can not be extended to defeat the operation which this covenant would have on the estate at common law. The statute, de donis, 13 E. 1 chap. 1, is distinct and positive in its provisions, that donee in tail shall not defeat the estate of the issue, but its operation is avoided by a lineal warranty descending with assets, or of a collateral warranty without them. In the first case, because the heir, being liable on the warranty to the amount of the assets descended, shall be rebutted to prevent circuity; in the second case, because he is presumed to have inherited assets, and the case not coming within the letter of the statute, he is rebutted on that presumption.
    3. But, at least, this written instrument is a good license to enter and erect the jail and remain in possession. We have entered, in pursuance of this license, and occupied the premises for the sole purpose named in the instrument. No notice has been given us to depart the premises; we hold, therefore, by right, and no action of trespass will lie against us; nor has the period of our possessory right expired ; we are authorized to enter and possess, and the plaintiff covenants to defend our possession forever. And even if the legal estate still vest in the plaintiff, yet he stands seized to our use and we have entered, holding the equity under that use, and the legal possession under the license.
    4. But this is an appropriation to public uses ; no grantor or grantee is necessary ; a mere written declaration, “ I appropriate this property to public uses,” naming the uses, is sufficient. 9 Cranch, 331, and cases there cited.
    ^Leonard, in reply:
    It is then insisted that at least this is a license to enter. The license to enter, if any where, must be contained in the granting part of the deed, and^that is clearly void, as not executed agreeably to the statute. This doctrine, too, will make every defective conveyance good. An action of ejectment is brought; a deed not executed comformably to the statute is exhibited in defense; the deed is void, and yet under another color, it is immediately set up, and the estate is held under the good-for-nothing deed. This is not an appropriation of land for public uses. If the deed had been formally executed, it would have been a common conveyance of bargain and sale, with a condition to erect a jail on the premises, a condition subsequent, to.be executed in a reasonable time, and when executed, the fee would have been irredeemably vested in the county. And this is all that can be said or mado of the deed.
   By the Court :

It is unnecessary to decide upon the various points of learning discussed by the counsel, in this case. A license to enter and occupy lands may be given in writing, without any of the formalities of a deed of conveyance. A possession taken under a license from the party is a good defense in an action of ejectment. The writing purporting to be a deed, in this case, authorized, by an inevitable implication, the commissioners, for the time being, to enter and erect the jail. It also authorizes the commissioners and their successors to hold and use the lot in question, while occupied as a jail. It has been so used and occupied. No attempt has been made to use it for any other purpose, up to the commencement of this suit. No right of entry, for a departure from the license, has accrued to the heirs of Sullivant. The motion for a new trial must be overruled.  