This, it is admitted, does not appear by the bond or by the mortgage; but it is urged that it is proved by parol testimony, and that this testimony should be admitted by the Court.

Alexander Harper testifies, that in the Spring of 1819, Brice and C. Myers came to him and told him that they had agreed to exchange lands: that Myers was to convey his farm in Muskingum county, to Brice, for which Brice was to convey to Myers twelve hundred acres in Licking county; and that they wished him to draw the deeds: that while he was drawing the deeds, as he thinks, Brice sold to Myers about seven hundred acres, a part of the same tract out of which the twelve hundred acres were taken: he does not remember the price: Myers made his notes and a mortgage to Brice for the purchase money; he also made a bond to Brice, to convey to him a lot in Zanesville, estimated at fifteen hundred dollars, the price of two hundred acres of the land sold: that the house and lot belonged to Michael Sockman, who was then in Illinois or Indiana; that two hundred acres of the land was intended for Sockman, and when the lot was conveyed to Brice, he was to release the mortgage as to two hundred acres of the land; that there was some conversation as to Brice executing a bond to release the two hundred acres, but the arrangement was effected without,

William Stanbery testifies, that he saw Brice and Sockman together, and that Sockman offered to convey the lot in Zanesville to Brice, if Brice would release from the mortgage two hundred acres of the land: one objection made to it by Brice was, that he had assigned the notes and mortgage to the Granville Bank.

Brice in answer to an interrogatory, filed by the defendants, states that Sockman, in the fall of 1820, told him that he would not convey the lot in Zanesville, unless Myers would pay him fifteen hundred dollars, or give him the best lot he purchased of Brice, he thinks lot No. 10; and that he recollects no other conversation with Sockman.

That Winchel was a part owner of the lands which he, (Brice,) sold to Myers and exchanged; that on settlement with Winchel, he assigned to him the notes and mortgage of Myers, in payment for his part of the land.

C. Myers states in his answer, that the purchase of Brice was of six hundred and thirty-four acres: that for the price of four hundred and thirty-four, he gave his notes; for two hundred acres, the remainder, he gave the bond for the lot in Zanesville, or fifteen hundred dollars; that to secure the payment of the purchase money, he gave a mortgage on the whole six hundred and thirty-four acres; and that Brice agreed to release 200 acres on the conveyance of the lot in Zanesville; that when he released the equity of redemption to Ransom, the holder of the notes and mortgage, he thought all was settled. The other defendants, except Hahn, all state that the purchase of C. Myers was of six hundred and thirty-four acres, and that the mortgage was for the price of four hundred and thirty-four acres only. Hahn states that the mortgage was for the same.

Sockman states in his answer, that he offered to convey the lot in Zanesville to Brice, about a year after the bond was made, if Brice would release two hundred acres from the mortgage, according to his contract: that Brice refused, alledging that he had assigned the mortgage to the Granville Bank, and had no control over

it: from all which it is apparent, that whether the fifteen hundred dollars was secured by mortgage, depends on the testimony of Harper. C. Myers, in his answer, states, in general terms, that the purchase money was secured by mortgage. From Sockman's answer, and the depositions of Stanbery, and the answer of Brice, nothing is to be gathered, but that Sockman offered to convey the lot in Zanesville, if two hundred acres were released from the mortgage, and that Brice refused, and assigned as one reason, says Stanbery, that he had assigned the mortgage to the Granville Bank.

Brice sold to Myers three hundred and thirty-four acres of land, at about seven dollars and fifty cents per acre. The agreement was made, Harper thinks, in his presence. Notes were given for the purchase money of four hundred and thirtyfour acres, payable in one, two, three, and four years, and a mortgage made on the whole six hundred and thirty-four acres, to secure the payment of these notes. For the price of two hundred acres of the land, the remainder of the six hundred and thirty-four acres, Myers gave the bond to convey the lot in Zanesville, or to pay fifteen hundred dollars in five years. Harper says in general terms, that the notes and a mortgage were given to secure the purchase money. That two hundred acres were intended for Sockman, who owned the lot in Zanesville: that two hundred acres were to be released from the mortgage on the conveyance of the lot to Brice: that there was talk of Brice making a bond to that effect, but it was otherwise arranged.

Why was this bond of Myers' not referred to by the mortgage, if its performance was intended to be secured by the mortgage? Why was it not stated in the condition of the bond, that the lot was not to be conveyed or the money paid, unless at the same time Brice released from the mortgage two hundred acres of land? Why was not a separate bond taken from Brice, as was talked of, binding him to make the release? That the mortgage does not include the fifteen hundred dollars or refer to the bond; that the bond does not require the release of the two hundred acres on the conveyance of the lot or payment of the money; that the bond of Brice to this effect was not executed, the result of mistake or fraud; is neither proved nor urged. The mortgage was taken to show how far the parties agreed to lien the land; the bond to show on what conditions the lot was to be conveyed. They talked of a bond to affect the mortgage and the bond for the Zanesville lot, but it was not executed—it was not agreed to; some other arrangement was made: what that other arrangement was, we know not. If Brice declined making a bond at the time he received the mortgage and title bond, which would have materially affected them, on what principle can the Court construe the mortgage and title bond as though he had signed the bond for the release? The interest of parties in their contracts is as important and sacred as their interest in their land, and is carefully guarded against the Legislature by all our constitutions. If when made they are so sacred, we must as scrupulously avoid making them for the parties, as varying them when made. Unless the agreement were drawn contrary to the intention of the parties at the time by mistake or fraud, and that clearly proved, this Court cannot interfere. (Sug. Ven. 93, 116, 117, 1 Pet. R. 13, 15, 1 J. C. R. 127, 3 Stark. Ev. 100-3-5.) The

parol testimony must be rejected, and we must hold that it is not proved, that the fifteen hundred dollars was secured by mortgage, or that Brice was bound to release the two hundred acres from the mortgage on receiving the conveyance of the Zanesville lot.

It is contended again, that the demand of Brice is hard and unjust; that he has already got back in payment for the land, the whole of the land and one hundred acres of the twelve hundred acre tract; that by mistake the mortgage covered one hundred acres of the twelve hundred tract.

There seems to have been a mistake in the mortgage of one hundred acres of the East part of lot No. 10. This though was known to C. Myers when he released the mortgage to Ransom for the notes secured by the mortgage: he says he thought the whole matter was then at rest; but he does not state or prove that the bond for the Zanesville lot was even mentioned at the time. Why was not a release of it taken, or some reference to it made, if it was then intended to be discharged?

The lots of land in the deeds and in the mortgage, are some of them called for by their number and not by the quantity; hence, perhaps, the error in the quantity as described. The deeds of C. Myers to the other defendants, convey eleven or twelve hundred acres; they call for less than a thousand acres. Yet, that the mortgage to secure the payment of little more than two-thirds of the price of about six hundred and thirty-four acres, should have been drawn for land, in the mortgage said to be seven hundred and seventy-one acres, and, that the bond for the payment of fifteen hundred dollars should have a penalty of five thousand dollars, are circumstances that must awaken suspicion of unfairness-the penalty has done no harm; the mortgage with full knowledge has been released.

In 1819, when C. Myers purchased the land of Brice, the currency of the country was an unsound one, encumbered by all the notes of the local Banks: they were abundant, and had depreciated at least twenty-five per cent., but were passing at the sums for which they were made: the value of land and other property was estimated in reference to this currency. At the time C. Myers released the mortgage in 1822, the depreciated notes of the local Banks had ceased to circulate. The price of land and other property had, in consequence, fallen from thirty to fifty per cent. at least. Few who purchased land on a credit, in 1819, could, in 1822, sell it for two-thirds of the purchase money. Myers appears to have purchased for speculation. The lot in Zanesville, with which he was to pay fifteen hundred dollars, in five years, was the property of his son-in-law, Sock, man. The payments which fell due in 1820-21, were not made. In 1822, when the third payment became due, the lands had fallen, and the mortgage was released in satisfaction of the three first, and also of the last payment to become due in 1823. If the land had raised in value, so that Myers could have paid for the whole, by the sale of two hundred acres in 1822, whereby he would have gained the four hundred and thirty-four acres by his trade with Brice, the Court could not have relieved Brice; we cannot, therefore, as lands have fallen, relieve Myers.

It is stated in the answer of C. Myers, that Brice for a time had possession of

the lot in Zanesville. There is no evidence of this fact; if there had been, the Court would have ordered Brice to have credited the value of the net rents to Myers. For it is a principle without exception, that when a party comes into Chancery for relief, he must do justice, or relief will be refused. (1 Fonb. Eq. 259.)

Sockman admits, by his answer, that when he purchased of Hahn, the land conveyed to Hahn by C. Myers, he knew of the bond on which the judgment of Brice was obtained, and of the consideration for which the land was conveyed to Hahn, and the circumstances attending the exchange and purchase of lands by C. Myers, of Brice.

Upon the whole, the Court are of opinion, that the deeds of C. Myers to his co-defendants, his sons, and sons-in-law, Hahn, and the deed from Hahn to Sockman, are fraudulent and void, as to the judgment of Brice, and so declare them.

The Court ordered, that on failure of C. Myers, by a fixed day, to pay the amount of the judgment, and the costs of this suit, that the land conveyed by C. Myers, to each defendant, should be separately valued, and the valuation returned to the next Supreme Court, that the Court might then order such part of each tract to be sold, as should appear necessary. It was suggested, that the lands were valuable, and that arrangements would be made between the parties.

LESSEE OF GEORGE N. HUNT, vs. JOHN MCMAHAN.

The occupying claimant law of Ohio, is constitutional.

THIS cause came here from the county of Butler, on exceptions to the report of Commissioners appointed to value improvements.

The plaintif recovered in ejectment; and on the motion of the defendants, Commissioners were appointed to value the land and the improvements under the statute of the State. The land recovered was one hundred and six acres and two thirds. The Commissioners certified that the improvements consisted of seventy acres of cleared land, divided into fields by worm fences, containing about fifteen thousand one hundred and thirty rails; a two story frame house, twenty by twenty-five feet, a log cabin, two wells of water, two log corn cribs, a wagon shed, and one log barn; which they valued at one thousand, one hundred and twenty eight dollars, thirty-five cents, subject to no deduction for waste. The land in an unimproved state, they valued at six hundred dollars. The defendant excepted to the valuation on the single ground, that the statute, commonly called the occupying claimant law, was unconstitutional.

PENDLETON in support of the exceptions.

CORWIN AND COLLET contra.

Opinion of the Court, by JUDGE WRIGHT,

After a verdict of guilty in this case, the defendant applied under the occupancy claimant laws of Ohio, to have the value of his improvements assessed by three freeholders. The report of these freeholders being filed, it is objected to by the plaintif, because the occupying claimant law, contravenes the 8th section of the 8th article of the constitution of Ohio, which is in these words: "The right of trial by jury shall be inviolate."

The counsel for the plaintif rely upon the decision of the Supreme Court of the United States in the case of Green vs. Biddle. (8 Wheaton Rep. 1.) That case determined that the occupying claimant act of Kentucky of 1812, impaired the obligation of the compact between that state and Virginia, of 1789, and so infracted the provision in the constitution of the United States, prohibiting the passage of a law impairing the obligation of contracts. The very able Judge who delivered the opinion of the Court in that case, in reasoning upon the occupying claimant laws of Kentucky, does indeed determine it to be incompetent to the state of Kentucky, or even the Judges of the United States' Court, by rule, to introduce into the Courts of the Union, changes affecting a fundamental right incident to remedies in its Courts of law: bnt he leaves untouched the question, how far the legislative power of the state was adequate to effect this change in its own Courts.

The occupying claimant laws of Ohio came under the consideration of the same Court, in the case of the Bank of Hamilton vs. Lessee of Dudley. (2 Peters. 492.) In that case the Court concede that the state has the power to secure to claimants of lands their possession until paid for lasting improvements made by them on the land: but denies the power of the state by its enactments, to "change radically, the mode of proceeding prescribed for the Courts of the United States, or direct those Courts in a trial at common law, to appoint commissioners for the decision of questions which a Court of common law must submit to a jury." Such a proceeding the Court suppose would conflict with the clause in the constitution of the United States, which declares that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."

It appears to us obvious, that the provision of the constitution just quoted, applies only to the Courts of the United States, and does not prescribe a rule of practice for the Courts of a state. In that case, the Courts expressly determine, that the "inability of the Courts of the United States to proceed in suits at common law in the mode presented by the occupant law of Ohio does not deprive the occupant of the benefit intended him. The modes of proceeding which belong to Courts of Chancery, are adapted to the execution of the law; and to the equity side of the Court he may apply for relief. Sitting in Chancery, it can appoint Commissioners to estimate improvements, as well as rents and profits, and can enjoin the execution of the judgment at law, until its decree shall be complied with;" and that on the Chancery side of the United States' Courts the law can be executed. We understand this decision as affirming the constitutionality of the law so far as it provides for the relief intended to the occupant; but that it is incompetent for the federal Courts under the constitution of the United States, to afford the relief or ascertain the damages, on the law side of those Courts, by