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But no case is cited by either Sugden or Story, in which the precise question has arisen and relief has been refused. We may except the case of Putnam v. Ritchie, 6 Paige, 390, in which Chancellor Walworth refused to grant relief for the reason, that “ he had not been able to find any case either in this country or in England, wherein the court of chancery has assumed jurisdiction to give relief to a complainant who has made improvements on land, the legal title to which was in the defendant, where there has been neither fraud, nor acquiescence on the part of the latter after he had knowledge of his legal rights.” The learned chancellor thought to do so would be introducing a new principle into the law of the court. Some years after the decision of Putnam v. Ritchie the question arose before Judge Story, in Bright v. Boyd, 1 Story, 478, upon a bill filed by a bona fide purchaser, claiming compensation for improvements. The learned judge said (p. 494): “Upon the

) general principles of courts of equity, acting ex æquo et bono, I own that there does not seem to me any just ground to doubt that compensation under such circumstances ought to be allowed to the full amount of the enhanced value, upon the maxim of the common law, Nemo debet locupletari ex alterius incommodo.After referring to the well settled doctrine of courts of equity, under which allowance is made to a party defendant, by way of recoupment, out of the rents and profits, or in cases where the aid of the court is asked by the owner of an equitable title to enforce that title, Judge Story says (p. 495): “But it has been supposed that courts of equity do not and ought not to go further, and to grant active relief in favor of such a bonâ fide possessor, making permanent meliorations and improvements, by sustaining a bill brought by him therefor, against the true owner, after he has recovered the premises at law. I find that Chancellor Walworth, in Putnam v. Ritchie (6 Paige, 390), entertained this opinion, admitting, at the same time, that he could find no case in England or America where the point had been expressly decided either way. Now, if there be no authority against the doctrine, I confess that I should be reluctant to be the first judge to lead to such a decision. It appears to me, speaking with all deference to other opinions, that the denial of all compensation to such a bona fide purchaser in such a case, where he has manifestly added to the permanent value of an estate by his meliorations and improvements, without the slightest suspicion of any infirmity in his own title, is contrary to the first principles of equity. Take the case of a vacant lot in a city, where a bona fide purchaser builds a house thereon, enhancing the value of the estate to ten times the original value of the land, under a title apparently perfect and complete ; is it reasonable or just, that in such a case the true owner should recover and possess the whole, without any compensation whatever to the bona fide purchaser ? To me it seems manifestly unjust and inequitable thus to appropriate to one man the property and money of another, who is in no default. The argument, I am aware, is, that the moment the house is built it belongs to the owner of the land by mere operation of law; and that he may cer

T tainly possess and enjoy his own. But this is merely stating the technical rule of law, by which the true owner seeks to hold what, in a just sense, he never had the slightest title to, that is, the house. It is no answer-. ing the objection, but merely and dryly stating that the law so holds.

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But, then, admitting this to be so, does it not furnish a strong ground why equity should interpose and grant relief?”

We have cited the language of Judge Story at considerable length, because it has appeared to us to be quite applicable to the present case, and expresses clearly and forcibly the grounds upon which rests the claim of the appellant for relief. The case of Bright v. Boyd came again before Judge Story for final decree, upon the report of the master (2 Story, 605, 607), when he said: “I have reflected a good deal upon the present subject, and the views expressed by me at the former hearing remain unchanged; or rather, to express myself more accurately, have been thereby strengthened and confirmed," and he decreed accordingly, using this emphatic language: “I wish, in coming to this conclusion, to be distinctly understood as affirming and maintaining the broad doctrine, as a doctrine of equity, that so far as an innocent purchaser for a valuable consideration, without notice of any infirmity in his title, has by his improvements and meliorations added to the permanent value of the estate, he is entitled to a full remuneration ; and that such increase of value is a lien and charge on the estate, which the absolute owner is bound to discharge before he is restored to his original rights in the land. This is the clear result of the Roman law, and it has the most persuasive equity, and I may add common sense, and common justice for its foundation.

This careful and well considered decision meets with our entire approval, and rests upon such plain principles of equity that we have no hesitation in adopting it, as applicable to the case before us. It seems to us, that so far from introducing any “new principle into the law of the court,” as said by Chancellor Walworth, it is nothing more than the application of the well settled principles of equity to a case coming clearly within their scope and operation. It can make no difference in the equitable rights of the appellant whether it appears in the character of complainant or defendant.

In support of the views expressed by Judge Story, the case of Bright v. Boyd does not stand alone. The supreme court of Kentucky decided the question in the same way in 1855), in Thomas v. Thomas's Ex'r, 16 B. Monroe, 421, granting relief to a bona fide possessor, upon a bill filed by him against the parties holding the legal title; and in McKelway v. Armour, 2 Stockton's Ch. R. 115, a bill was filed “ to relieve the complainant from the embarrassment of having erected a valuable dwellinghouse, by mistake, on the land of the defendant Armour.” Chancellor Williamson thus states the facts of the case : “ It is proved beyond all doubt that the complainant erected his improvements on this lot by mistake; he supposed that it was the lot next that belonged to Armour. Armour labored under the same mistake. He lived in the vicinity ; he saw the complainant progressing from day to day with these improvements. If he knew this to be his lot, his silence was a fraud upon the complainant; but this is not pretended. He admits that he did not suspect the erections to be upon his lot until some time after their erection, when by actual measurement, to his surprise, he discovered the mistake. Under such circumstances, it would be most unjust to permit Armour to take these improvements, and to send the complainant away remediless ; " and, accordingly, relief was decreed in favor of the complainant.

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These cases are cited to show that this question, although now for the first time presented to this court for adjudication in its present form, is not without precedent elsewhere. It has been argued that the appellant was guilty of laches and neglect in failing to adopt proper means to ascertain the state of the title before purchasing the lot, or making the improvements, by an examination of the land records. It is obvious, however, that such an examination could not have led to the information desired. The difficulty has arisen not from the state of the title, but from the location of the appellee's tract, which was not even known to the appellee himself until it was ascertained by actual survey in 1867. The witness, Patrick Hamill, who was present at the survey, says: “I don't think the line is more than from three to ten feet from the building; I don't know that Morrison knew where the lines of · The Trap' were previous to that time ; that was the first authenticated beginning that I . ever knew; there was a good deal of trouble in finding the lines of the said tract.' Under these circumstances, it is impossible, with justice, to deny to the appellant relief, on the ground of laches in not ascertaining the true location of “ The Trap," or that the lot in question was included within its lines. There was nothing in the situation of the property to suggest any doubt as to the title of Hammond, or to put the appellant on inquiry. The lot was not inclosed in “ The Trap," but was vacant, and had been laid out by Thomas Hammond as a town lot in Hammond's Addition to the Village of Westernport. No fault or laches, therefore, can be imputed to the appellant, and we are of opinion that it is entitled to relief, in respect to the permanent and valuable improvements ; the decree of the circuit court will be reversed and the cause remanded, to the end that a decree may be passed in accordance with this opinion and the equitable rights of the parties. With respect to the nature and terms of the decree it will be proper that the appellee shall have the option to accept from the appellant payment for the lot of ground, estimated at its just value, without the improvements thereon, and be required, on the payment thereof with interest, to convey the same to the appellant, by a sufficient deed; or at his election, to take and hold the lot with improvements, paying to the appellant the actual value of the improvements, to the extent of the additional value which they have conferred upon the land, and in default of such payment, the same ought to be declared to be a lien, and charge on the property, and the lot and improvements should be decreed to be sold for the payment thereof.

Decree reversed and cause remanded.

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(To appear in 24 Ohio State.)

The bringing into this state by the thief of goods stolen in the Dominion of Canada, or

other foreign country, is not larceny in this state.

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ERROR to the court of common pleas of Cuyahoga County.
The facts are set forth in the opinion.
Thomas J. Carran, for plaintiff in error.
John Little, Attorney General, contra.

MCILVAINE, J. At the November term, 1873, of the court of common pleas of Cuyahoga County, the plaintiff in error, William Stanley, was convicted of the crime of grand larceny, and sentenced for a term of years to the penitentiary.

The indictment upon which he was convicted charged “that William Stanley, late of the county aforesaid, on the twentieth day of June, in the year one thousand eight hundred and seventy-three, at the county aforesaid, with force and arms,” certain silverware, " of the goods and chattels

“ and property of George P. Harris, then and there being, then and there unlawfully and feloniously did steal, take, and carry away,” &c.

The following facts were proven at the trial : 1. That the goods described in the indictment belonged to Harris, and were of the value of one hundred and sixty-five dollars. 2. That they were stolen from Harris on the 20th of June, 1873, at the city of London, in the Dominion of Canada. 3. That they were afterward, on the 26th day of same month, found in the possession of the defendant, in said county of Cuyahoga. It is also conceded that, in order to convict, the jury must have found that the goods were stolen by the defendant in the Dominion of Canada, and carried thence by him to the State of Ohio.

Upon this state of facts, was the prisoner lawfully convicted ? In other words, if property be stolen at a place beyond the jurisdiction of this state and of the United States, and afterward brought into this state by the thief, can he be lawfully convicted of larceny in this state?

In view of the free intercourse between foreign countries and this state, and the immense immigration and importation of property from abroad, this question is one of very great importance; and I may add, that its determination is unaided by legislation in this state.

In resolving this question, we have been much embarrassed by a former decision of this court, in Hamilton v. The State, 11 Ohio, 435. In that case, it was held by a majority of the judges, that a person having in his possession in this state property which had been stolen by him in another state of the Union, might be convicted here of larceny.

The decision appears to have been placed upon the ground,“ that a long

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sustained practice, in the criminal courts of this state, had settled the construction of the point, and established the right to convict in such cases.”

Whether that decision can be sustained upon the principles of the common law or not, it must be conceded that for more than thirty years it has stood, unchallenged and unquestioned, as an authoritative exposition of the law of this state. And although it has received no express legislative recognition, it has been so long followed in our criminal courts, and acquiesced in by other departments of the government, that we are inclined to the opinion that it ought now to be overruled; but, on the other hand, its rule should be applied and sustained, in like cases, upon the principle of stare decisis.

Before passing from Hamilton v. The State, it should be added that the same question has been decided in the same way by the courts of several of our sister states. The State v. Ellis, 3 Conn. 185; The State v. Bartlett, 11 Vt. 650; The State v. Underwood, 49 Maine, 181 ; Watson v. The State, 36 Miss. 593; The State v. Johnson, 2 Oregon, 115; The State v. Bennett, 14 Iowa, 479; Ferrell v. Commonwealth, 1 Duvall, 153; Commonwealth v. Collins, 11 Mass. 116. The same point has been decided the same way in several subsequent cases in Massachusetts.

The exact question, however, now before us has not been decided by this court; and we are unanimously of opinion that the rule laid down in Hamilton v. The State should not be extended to cases where the property was stolen in a foreign and independent sovereignty.

We are unwilling to sanction the doctrine or to adopt the practice, whereby a crime committed in a foreign country, and in violation of the laws of that country only, may, by construction and a mere fiction, be treated as an offence committed within this state and in violation of the laws thereof. In this case the goods were stolen in Canada. They were there taken from the custody of the owner into the custody of the thief. The change of possession was complete. The goods were afterward carried by the thief from the Dominion of Canada to the State of Ohio. During the transit his possession was continuous and uninterrupted. Now, the theory upon which this conviction is sought to be sustained is, that the legal possession of the goods remained all the while in the owner. If this theory be true, it is true as a fiction of the law only. The fact was otherwise. A further theory in support of the conviction is, that as soon as the goods arrived within the State of Ohio, the thief again took them from the possession of the owner into his own possession. This theory is not supported by the facts, nor is there any presumption of law to sustain it.

That the right of possession, as well as the right of property, remained all the time in the owner is true as matter of law. And it is also true, as a matter of fiction, that the possession of the thief, although exclusive as it must have been in order to make him a thief, is regarded as the possession of the owner, for some purposes. Thus, stolen goods, while in the possession of the thief may be again stolen by another thief ; and the latter may be charged with taking and carrying away the goods of the owner. And for the purpose of sustaining such charge, the possession of the first thief will be regarded as the possession of the true owner. This fiction, however, in no way changes the nature of the facts which constitute the crime of larceny.

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