
    Samuel Strong, for the use of C. Reed, v. S. R. Darling and S. B. Walcott.
    A contract for the sale of a town lot is valid, although the town has not been surveyed, platted, and recorded, according to the provisions of the statute.
    A statutory imposition of a mere penalty upon the performance of an act, does not necessarily vitiate the contract itself.
    Covenant. From Lorain. The suit is brought upon a sealed land contract between the parties, dated March 22,1836, by which the defendants “bind themselves, their heirs and administrators, to pay or cause to be paid to the plaintiff, his heirs, etc., the sum of $350, in manner following — that is to say, fiity dollars on July 1, 1836; $100 on April 1, 1837; and $100 annually thereafter until ■the whole sum be paid, with interest to be paid annually, etc.; and in consideration of the above payments being punctually made at ■the time and in the manner specified,” the plaintiff agreed and bound himself, etc., “to convey by warranty deed to the defendants, the following described tract of land,” etc. The suit seeks to recover the first two installments and interest upon the whole up to April 1, 1837. The defendants have pleaded non est factum, .and appended a notice, that by the agreement the plaintiff sold them an in-lot in the town of Black River, which was the consideration of their ^covenants declared upon; that when the covenants were made, the plat of said town had not been surveyed by the surveyor of the county or of any adjoining county, nor had a map thereof been made according to the laws of Ohio. The case was submitted upon an agreement that the facts set forth in the notice were true.
    E. S. Hamlin, for defendants.
    The policy of the law for recording town plats is opposed to any sale of lots, until a record of the plat is made. This sale is opposed to the scope of the law, ■and therefore can not be enforced. . It makes no difference that the act contains no express prohibition to such sale. Com. on Con. 66; 1 Taunt. 135 ; 6 Ohio, 24; 1 Kent C. 437; 1 Am. C. L. 365, and cases cited; 2 Rose’s Bank Cases, 351; Wright, 150, 749
    No argument was submitted for the plaintiff.
   By the Court,

Wood, J.

Do tbo facts set forth in the notice annexed to the defendants’ plea bar the plaintiff’s action? Section •6 of the act referred to in the notice, 29 Ohio L. 350, provides that all proprietors of lots or grounds in any city or town corporate in this state, who have subdivided or laid out, or who shall subdivide and lay out the same in lots for sale, shall cause accurate and true ■maps or plats thereof to be made and recorded in the 'office of the recorder, in the county in which such town or city may be situated, etc.; and section 7 enacts, that if such proprietor shall sell any lot in any plan or subdivision of, or addition to, the lots originally laid out in said town, before a map of such subdivision or .addition shall have been so recorded, he shall forfeit and pay to the state for the "use of such town, the sum of fifty dollars, with ■costs for each lot sold, etc. It is argued for the defendants that the plaintiff can not recover upon this covenant, because it violates the act referred to, which is a penal statute. A question in strict analogy with this has been decided in England, which seems to the court to settle the present case. By the 29 George III, 68, it is enacted that every person who shall deal in tobacco, shall, before he shall deal therein, take out a license, and renew the same annually, under a penalty of fifty pounds. Suit was brought to recover the value of certain tobacco sold by the plaintiff, who had no license. The defense was that his want of license vitiated the contract of purchase, but the court held, that inasmuch as the statute did not declare a sale made under such circumstances illegal, the-sale, at most, was a violation of a mere revenue regulation, ^protected by a specific penalty, and the plaintiff had judgment. 11 East, 180, 299. We think the facts set up in this case do-not bar the plaintiff’s action. Judgment for the plaintiff.  