Citations
- 13 Ohio 552
Full opinion text
Lane, C. J.
Israel Ludlow, the ancestor of the complainants,, was a proprietor, and one of the earliest settlers of Cincinnati, and possessed a large-property in lands. About the year 1794, Daniel C. Cooper, a relative of Ludlow, and then young, came to Ohio- and received patronage from Ludlow, and, through his influence, in his occupation of surveying, and in other employments.
Before the year 1801, Wilkinson, Dayton, Ludlow, St. Clair, Denman, and others, separately and together, had made extensive purchases in the seventh range of the Symmes purchase, and laid out the town of Dayton. Cooper entered into the employment of these gentlemen; removed to the vicinity of tho new town ; acted as agent for the proprietors in the sale of lots, and was engaged in. erecting a mill for Ludlow and himself, near that point.
When Symmes failed in .making his payments, and the title of' his vendees was lost, the right of pre-emption was conceded by Congress to actual settlers ; and commissioners were appointed,, who held their sessions in Cincinnati, in the year 1801, to adjust controversies, and ascertain the persons properly entitled to certificates of entry. Cooper applied to this board, claiming the preemption of the land in controversy. His right *was admitted ; he entered the land, made the first payment, and received the inchoate title.
The following contract was made on December 23, 1803: “Whereas I, Daniel C. Cooper, of the town of Dayton, in the-county of Montgomery, have purchased of the United States certain lands in the seventh range of townships, near to, and including, the town of Dayton, in the Miami purchase, as may appear by the register’s and receiver’s office ; and have also procured of the commissioners certain certificates of rights of pre-emption in the seventh and eighth ranges, as aforesaid : Now know ye that I, Daniel C. Cooper, for the consideration hereafter named, hath granted, bargained, and sold, and by those presents do grant, bargain, and sell, to Israel Ludlow, of Hamilton county, one equal moiety, or half part of all said tracts, purchased as aforesaid, excepting certain tracts and town lots, including those lots which settlers are entitled to by virtue of their first settlement. The said I. Ludlow, for the consideration of the aforesaid grant, doth agree to pay one equal half part, or moiety, of the purchase money for the aforesaid tracts. The said parties are to bo equal in all payments toward the purchase money, and also the profits® or proceeds of sales of said lands, or any part of them. To which agreement we bind ourselves,” etc.
Ludlow died on January 21, 1804, leaving four children, the eldest of whom became of age in September, 1818, and the youngest in May, 1825. Administration of his estate was granted to James Eindlay and John Ludlow, his relatives and friends. Davis and Yeatman became guardians for the children.
The first payment on the land had been made by Cooper, in 1801, before the date of the contract; the other payments were due on the successive last days of December, 1803, 1804, and 1805, but were not made until 1813, to which time credits had been extended by successive acts of Congress.
Cooper continued to reside on the property in Dayton, treating it as his own, after the death of Ludlow. Some intercourse occurred between him. and the administrators of Ludlow, toward *lhe settlement of his accounts with the estate, which will be noticed hereafter; but no claim of ownership appears to have been made by them, nor was any money advanced by them toward the performance of the contract, and the guardians prove they •did not know of its existence. By 1808, Cooper appeal’s to have made sales, amounting nearly to $4,000; and by 1813, his sales seem to have been not less than $10,000 or $12,000. I do not find it sufficiently proved that this whole amount had then been realized in cash. Cooper received his patents in 1813, and retained the land until his death, in 1818. The defendants hold now by a title derived through his devise.
Upon these facts the complainants, heirs of Ludlow, prefer this ■bill, claiming half the unsold lands and half the profits of the sales. They rely upon the following propositions : That the contract of 1803 was but the execution of some previous arrangement, by which Ludlow and Cooper had long before held equal interests in the lands; that the first payment had been partly made, either with Ludlow’s money, or by money which Cooper owed to Ludlow ; that Cooper thenceforth held the lands to sell and manage on their joint account; that no subsequent payments were made, ■except with money derived from the sales, and belonging, in part, to the representatives of Ludlow ; that the title thus acquired was for their mutual benefit; that this bill is filed within the savings of the statute of limitations; and that the presumptions against th