
    Wallace W. Templeton v. Solomon Kraner, et al.
    1. The act of April 18, 1870, amending section 557 of the code, in so far as it authorizes a purchaser of real estate, in possession under a conveyance containing covenants of title and general warranty, in an action by the vendor against him to recover the purchase money, to make the claimant of an estate in fee simple, adverse to the title acquired by the purchaser, a party to such action, and if the adverse estate be adjudged in favor of the claimant, to counterclaim against the vendor the breach of the covenants of his title, is remedial merely, and does not impair the obligation of the contract between the vendor and vendee, nor in any manner affect the causes of action existing in favor of the-parties thereto, at the time of the passage of the amendatory act.
    2. Under the grant of legislative power in the constitution, the general assembly has complete control over the remedies which are to be afforded to parties in the courts of the state; and if the remedies provided do not interfere with vested rights, such effect must be given them as will carry out the intent of the law-making power.
    
      Error to the District Court of Hardin county.
    On the 12th day of November, 1868, the plaintiff, Wallace W. Templeton, sold and conveyed to the defendant, Solomon Kraner, by deed in fee simple, with covenants of general warranty, certain real estate situate in Hardin county, containing 159 acres.
    On the same day, Kraner, in payment of the purchase money, made and delivered to Templeton his promissory note for $1,900.94, payable on the 1st day of January,. 1869, with interest from date, to secure the payment of which, Kraner and wife executed and delivered to Temple-ton a mortgage on the real estate sold.
    Kraner took possession of the whole of the real estate, at the time the conveyance was made, and up to the time of filing his answer herein, remained in the quiet and undisturbed possession thereof.
    On the 1st day of January, 1871, the note not having been fully paid, Templeton commenced an action in the Court of Common Pleas of Hardin county, against Kraner and wife, to ascertain the amount due on the note, to foreclose the mortgage, and sell the mortgaged premises to pay the debt.
    Kraner answered, setting up, by way of counter-claim, an outstanding title to a portion of the mortgaged premises -in one Allen E. McArthur, alleging that such title, if valid, will be a breach of the covenants of title contained in the deed from Templeton to him, to his injury in the sum of $1,500, and asked that McArthur be made a party defendant to the action, aud be required to set out the nature and extent of his title to the premises or any part thereof; that the validity of such outstanding title be determined, and if found valid, that the damages sustained by the defendant by reason of such outstanding title, be allowed him against the plaintiff. To this answer the plaintiff filed a demurrer, which was overruled by the court, and the ruling excepted to by the plaintiff.
    McArthur, by order of the court, was made a party defendant to the action, and filed his answer, claiming to be seized of the legal title to 4fV acres, describing them by metes and bounds, of the real estate conveyed by Temple--ton to Kraner, and entitled to the immediate possession •thereof, alleging that the same is wrongfully detained from .him by Kraner, and asking judgment against Kraner for the recovery of the possession thereof.
    The plaintiff replied to the answer of McArthur, denying his title and his right to the possession of the land claimed therein. At the February term, 1872, the court, upon the •submission of the cause, found for the plaintiff on the issue joined between him and the defendant McArthur, and as against the defendant Kraner, that there was due from him to the plaintiff upon the note the sum of $>553.35; .and ordered Kraner to pay the same, with the costs of suit, in ten days from the close of the term, and in default, that the mortgaged premises be sold, and the proceeds applied to the payment thereof.
    The defendants each demanded a second trial, which was .allowed to them separately, and both second trials were perfected. On the second trial in the Court of Common Pleas, the cause was, by consent of parties, again submitted to the court, and on the issue joined between the plaintiff .and the defendant McArthur, the court found, 'as against the plaintiff and those claiming under him, the title and the right to the possession of 4,% acres of the land conveyed by Templeton to Kraner to be in McArthur, and adjudged the same to him; and as to Kraner and wife, the cause was continued, and judgment rendered against the plaintiff, in favor of Kraner and McArthur, for the costs accrued since the filing of Kraner’s answer.
    At the March term, 1874, of the District Court of Hardin county, on a petition in error filed therein by the plaintiff Templeton, against the defendants Kraner and wife and McArthur, to reverse the rulings and judgment of the 'Court of Common Pleas, the District Court affirmed the same, at the costs of the plaintiff; whereupon the plaintiff filed a petition in error in this court, against the same defendants, to reverse the judgment of the District Court, upon? the following grounds, which are assigned for error:
    “ 1. That the said Court of Common Pleas of said county of Hardin erred in overruling the demurrer of the said-plaintiff to the answer of the said Solomon Kraner.
    “2. In allowing said Allen E. McArthur to be made a party defendant.
    “3. In permitting said McArthur to file answer and amended answers to the plaintiff's petition, and in' overruling plaintiff’s motion to strike said amended answers from the files.
    “4. In holding that the cause of action was one in which-either party was entitled to a trial by jury.
    “ 5. In granting second trial to the said McArthur, on his-motion.
    “6. In allowing a second trial to said defendant Kraner,. on his motion.
    “7. In rendering judgment of title in favor of said defendant McArthur, against the plaintiff!
    “8. In rendering judgment for costs against the plaintiff, and in favor of the defendants, McArthur and Kraner.
    “9. In entertaining jurisdiction and rendering judgment on second trial of said action — the case being one for appeal and not sécond trial.
    “10. In not rendering judgment in favor of the plaintiff,, and against the defendant McArthur, on the question of title.
    “11. In that said judgments were given for the defendants, when, by the laws of the land, judgment should have-been given for the plaintiff!
    “12. And the plaintiff avers that the said District Court, erred in affirming said judgments and ruling of the said. Court of Common Pleas.”
    
      Bain $ Strong, and W.' II. West, for plaintiff.
    
      James Bain, of counsel for plaintiff:
    1. Questions as to the validity of the title to the premises» conveyed by the plaintiff to the defendant, cau not be tried and adjudicated in this action. Defect in the title, if true, without an averment in the- answer showing eviction or something equivalent thereto, constitutes no defense to the plaintiff’s action. Hill and wife v. Butler, 6 Ohio St. 207; Stock Co. v. Saas, 1 Superior Court Rep. 21; Picket’s Adm’r v. Picket’s Adm’r, 6 Ohio St. 525; Rawle on Covenants, 658-661, and authorities there cited.
    Section 557 of the code, as amended April 18, 1870 (67 -Ohio L. 116), is inapplicable, because the contract upon which this action is founded, and the right of action thereon, accrued to the plaintiff prior to the passage and taking effect of this amendatory section. Steamboat Monarch v. Findlay, 10 Ohio, 384; Kelly v. Kelso, 5 Ohio St. 198; Seamans v. Carter, 15 Wis. 548; 1 Superior Court Rep. 21; Ordinance of 1787, Statutes of 1841-46; Swan & Sayler, 1; sec. 28, art. 2, Constitution of Ohio.
    2. If we were to concede that the legislature intended this amended section of the code to have a retrospective operation, then we insist that it is unconstitutional and ■void, because it interferes with vested rights, and so “impairs the validity of contracts.” Broom’s Legal Maxims, 128.
    Any legislation which makes that a breach of the contract or covenant, which was not so at the time of the making of the contract or covenant, is to change the terms and construction of the covenant. This amended section, if applicable, makes the covenantor liable for a breach of his covenants at a time and in a manner to which he never •agreed. It is therefore inapplicable or void. 2 Story on Constitution, 277, sec. 1385; Smith v. Parsons, 1 Ohio, 236; Von Baumbaugh v. Bade, 9 Wis. 590; Cornell v. Hitchins, 11 Wis. 370; Cargill v. Power, 1 Mich. 369.
    When the defendant accepted the deed of the plaintiff', containing the covenant of warranty, he doubtless regarded it as sufficient and ample indemnity against all lawful claims •of all persons whomsoever. Such was, and is, the contract between the parties. And it is now too late for the defendant, or the legislature either, to say that he shall not rstill rely on it and be bound by it. Talmage v. Wallace, 25 Wend. 115; Hill v. Butler, 6 Ohio St. 220.
    
      John JD. King, attorney for Solomon Kraner:
    The original section 557 of the code provides for a proceeding quia timet. This original section gives an express ■sanction to a remedy.
    This section of the code, as amended, does not change the contract between the parties; it does not “impair the ■obligation of the contract;” it does not alter the rights of the parties; but it does change and alter the mode by which the existing contract shall be enforced and the existing rights vindicated.
    In other words, it changes and enlarges the remedy of the parties under the contract.
    The case of Hill et ux. v. Butler, 6 Ohio St., was in many respects similar to this one ; but those principles all apply to the remedy and only to the remedy.
    Eor the express purpose of overcoming the technical barrier established in the case of Hill et ux. v. Butler, and some other cases of like import, and for the purpose of enlarging and furnishing a full and adequate remedy for the existing rights of the parties, section 557 of the code was amended.
    The contract or deed is to be construed and interpreted according to the law in force when the contract or deed was made. This, and this alone, is the effect and meaning of the clause of article 1, section 10, of the federal constitution, providing that “no state shall . . . pass any ex -post facto law, or law impairing the obligation of contracts.”
    But it is clearly the province of the legislature to enlarge, restrict, change, modify, or entirely destroy the remedy which a party may have on his contract at the time the contract is made. It may also create a remedy for an existing contract upon which previously there was no remedy. Potter’s Dwarris on Statutes, 471; Morse v. Goold, 11 N. Y. 281, 286, 287; Cooley’s Const. Limitations, 357; Parker v. 
      Sterling et al., 10 Ohio, 357; Sturges v. Crowinshield, 4 Wheat. (Cond. Rep.) 417. See Mason v. Hall, 12 Wheat. 370; also, Van Zandt v. Waddell, 2 Yerger, 260; The Bank of Columbia v. Okely, 4 Wheat. (Cond. Rep.) 442; Sampeyreac et al. v. The United States, 7 Peters, 222; Trustees of Green Township v. Campbell, 16 Ohio St. 11; Hays v. Armstrong, 7 Ohio, 248; State v. N. C. R. R. Co., 18 Md. 213; Story on the Const., sec. 1,p. 382; Leland v. Wilkinson, 2 Pet. 627, 660; 10 Pet. 294.
    
      Beatty § Foster, attorneys for defendant McArthur:
    Amended section 557, referred to, does not contravene-section 28 of article 2 of the constitution, as said section does not interfere with any vested right.
    Plaintiff had no vested right, no substantial right, in a contract to receive pay for four and four-tenths (4fV) acres-of land, owned by defendant McArthur, and to which plaintiff had never claimed title thereto, but only by mistake or otherwise included in the description, in deeding-certain real estate to defendant Kraner.
    It would have been wrong for plaintiff to have taken pay for title from Kraner when no title was conveyed. He had no vested right to do wrong. Foster v. Essex Bank, 16 Mass. 245, 273; cited in 11 Ohio St. 652, also.
    “Laws curing defects which would otherwise operate to-frustrate what must be presumed to be the desire of the party affected, can not be considered as taking away any-vested rights.”
    “Courts do not regard rights as vested, contrary to the-justice and equity of the ease.” State v. Newark, 3 Dutcher, 185, 197.
    “ Retrospective laws, that violated no principle of natural justice, but, on the contrary, were in furtherance of equity and good morals,” “ have been repeatedly sustained in this state.” Trustees of Cuyahoga Falls R. E. A. v. McCaughey, 2 Ohio St. 152-155; Butler v. City of Toledo, 5 Ohio St. 225-231; Lewis v. McElvain, 16 Ohio, 347-355; Johnson v. Bentley, 16 Ohio, 97-103.
    
      The equity of the case being in the defendant McArthur,, it was within the scope of legislative power to change or enlarge the remedy upon the covenants of warranty or any other. Parker v. Starling & Sargent, 10 Ohio, 357.
    This amended section is in full accord with the object and spirit of the code, to simplify and save a multiplicity of actions, -where one could be made to meet and accomplish the end and aim of three.
   Rex, J.

It appears from the record in this case, that the conveyance from Templeton to Kraner wa3 made on the-12th day of November, 1868; on which day the note for the purchase money, and the mortgage on the premises,, conveyed to secure its payment, were executed and delivered by Kraner and wife to Templeton.

The note matured in November, 1869, and between that-date and the commencement of this action the general assembly of this state passed an act amending section 557 of' the code of civil procedure (67 Ohio L. 116), under the provisions of which section, as amended, in addition to the-remedy provided for in the original section, a purchaser of real estate may, notwithstanding his continued possession,, set up, by way of counter-claim against the vendor, in an action brought by him dgainst such purchaser to recover the purchase money, any breach of the covenants of title acquired by the purchaser from the vendor, and make any persons claiming any estate or interest therein, adverse to-the title thus acquired from the vendor, parties to the action, and on the hearing, “be entitled to recourse against the plaintiff’s demand [for] the present worth of any existing lien or incumbrance thereon; and if the adverse estate or interest of the said claimants shall be an estate in reversion or remainder, or contingent upon a future event, the court may, at its discretion, require the vendee to surrender the possession to his vendor, upon the repayment of so-much of the purchase money as shall have been paid, thereon, with interest; or it may direct the payment of the purchase money claimed in the action, upon the plaintiff’s .giving bond in double the amount thereof, with two or inore sureties, to be approved by the court, for the repayment of the same, with interest, if the defendant his privities of contract shall subsequently be evicted by reason •of said defect.”

It is quite obvious that the general assembly, in addition to the remedy provided in the original section 557, intended by this amendment, which is an addition to the the original section, so to enlarge the remedy of a purchaser of real estate that in an action by the -vendor, against him, to recover the purchase money, he can compel all defects of title, covenanted against, in the deed to him, to be litigated and determined in the action so brought, instead of being compelled to resort to separate and distinct actions, to accomplish the same object.

This act is in harmony with the theory of the code system of practice, and the question presented for determination here is, whether it is applicable to this case under the facts stated.

In the case of The Great Western Stock Co. v. Saas, decided at the present term, the court, in construing the last ■clause of the amended section, held that in so far as its provisions authorize the court, at its discretion, in cases where the canse of action accrued before the passage of the act, and where the adverse estate set up is an estate in reversion or l'emaindei’, to’ order a rescission of the conti’act, or to render judgment for the plaintiff only upon his giving .a bond to indemnify the defendant in the event of his eviction by the claimant of the estate in remainder or reversion, ■they impair the obligation of the contract between the parties, and are inhibited by section 28 of article 2 of the ■constitution of this state. In this case, however, the adverse estate set up by the mortgagor, is a title prior and paramount to the title acquired by the defendant from the plaintiff, by virtue of which the owner claims to be entitled to the immediate possession of a part of the premises conveyed by the plaintiff to the defendant.

Before the passage of the act in question, under' this state of facts, the defendant, by a petition to quiet his title, could have brought the vendor and claimant into -court, required them to litigate as to the title, invoked the power of the chancellor to stay proceedings in the action by the vendor against him to recover the purchase money, until the question of title should be determined; and in the event of his eviction in the proceeding to quiet title, would have been entitled to recoup the damages sustained by him, by- reason of such eviction, against the claim of the vendor for the unpaid purchase money. The act, therefore, in so far as it permits an outstanding adverse title in fee simple to be set up by way of counter-claim, in an action by the vendor against the vendee to recover purchase money, and authorizes the claimant of the adverse estate to be made a party in the action, for the purpose of determining the rights and liabilities of all the parties in one and the same action, is remedial merely, and not in conflict with the constitutional provision before cited. The cause of action existing in favor of the vendor, at the time of the passage of the act, is not in any way changed or affected by it; but it gives to the vendee a new and additional remedy for a right which then existed — a right to demand of his grantor the performance of the covenants of his deed.

The principle, that the legislative power of the state has complete control over the remedies which shall be afforded to parties in the courts of the state, is so well' settled that argument is deemed unnecessary in support of it. The authorities relied upon as conclusive on this point, are Hays v. Armstrong, 7 Ohio, 248; Parker v. Sterling et al., 10 Ohio, 357; Johnson v. Bentley et al., 16 Ohio, 97; Lewis v. McElvain, 16 Ohio, 347; Trustees of Cuyahoga Falls R. E. A. v. McCaughey, 2 Ohio St. 153; Goshorn et al. v. Purcell, 11 Ohio St. 641; Rairden et al. v. Holden, Adm’r, 15 Ohio St. 207; Trustees of Green Tp. v. Campbell, 16 Ohio St. 11; Bank of Columbia v. Okely, 4 Wheat. 235; Mason v. Hall, 12 Wheat. 370; Van Zant v. Waddel, 2 Yerger, 260; Sampeyreac et al. v. United States, 7 Pet. 222; Cooley’s Const. Lim. 361, 362.

Regarding the act in question, so far as it is applicable-to the facts in this case, as remedial merely, and within the*control of the legislative power, we are of opinion that the facts stated in the answer of Kraner are sufficient to constitute a defense under the act, and that the court did not-err in overruling the demurrer of the plaintiff to it.

Numerous other errors are assigned by the plaintiff to-the decisions and rulings of the Court of Common Pleas,made in the progress of the case; but as it does not appear, either in the record set out in the plaintiff’s brief, or in the transcript of the proceedings in the Court of Common Pleas, that the plaintiff excepted to any of the rulings* or decisions made, except that overruling his demurrer toKraner’s answer, which is made the ground of the first assignment of error, he must be held to have relied on that-alone.

A decision or ruling of a court, not excepted to at the-time, can not be assigned for error in a reviewing court. Code, art. 5, tit. 9, and tit. 16; Geauga Iron Co. v. Street, 19 Ohio, 300.

The judgment of the District Court is affirmed, and the-cause remanded to the Court of Common Pleas of Hardin-, county for further proceedings.

Day, C. J., McIlvaine, Welch, and White, JJ., concurring.  