author: Cos, J,

text:
    (First Circuit—Hamilton O., O., Circuit Court
    January Term, 1896.)
    Before Judges Swing, Cox and Smith, JJ.
    MARY A. BRITT v. JOHN HAGERTY, Auditor, and LEO SCHOTT, Treasurer of Hamilton Co., O.

      Additions to taxable value of property — Power of Board of Review.—
    1. The Board of Review can make no addition to the taxable value of real estate until the owner has been served with the copy of a notice of their intention to do so. Rev. Stab, sec. 2804.

      Same — What notice reqirired.—
    2. By sections 2804a and 2804b, as passed March 1, 1892, vol. 89, Ohio Laws, pages 174 and 175, the notice shall describe the real estate whose tax value shall be acted upon by the description in the tax duplicate of the current year and the name in which it is taxed, and that the tax value will be acted upon by the board on the 10th day after said notice shall have been served as provided in section 2804b, which requires that notice shall be served (1) by delivering a copy thereof to the person or persons interested in said real estate or by leaving such copy at the usual place of residence or business of such person; or if no such place of residence or of business shall be found in the county (2) by delivering such copy to the agent in charge of such real estate and collecting the rents thereof; or if no such agent shall be found in the county (3) by advertisement thereof inserted one time in a newspaper of general circulation in the county in which said real estate is situated,and notices to the respective persons interested in different pieces of real estate may be united in one advertisement under the same general heading. Notice served in accordance with any of the above provisions shall be sufficient.

      ■Same — Several methods of notice.—
    3. Where three methods of service are thus provided for, the last depending upon the inability to serve by either of the first two methods, no service by the third method is warranted unless service is impossible by the first two methods.

      Same — Statutory requirements to be strictly construed.—

    4. The statutory requirement for service must be strictly pursued.
   Cos, J,

On the 31st of December 1892, Mary A. Britt filed a petition in the Superior Court of Cincinnati against the Auditor and Treasurer of Hamilton County, reciting that during the'years 1892 and 1893 she was a resident of Cincinnati, Hamilton county, 0., at 138 West Eighth street, and that she is the owner of several pieces of property described in said petition. She says the Board of Review in said city, acting as an annual Board of Equalization for the year 1892, on the 12th of September, 1892, ordered an addition to be made to each of said lots, on account, as alleged of gross inequality of the tax valuation, and that said addition was so made in each instance as to each of said pieces of property without her knowledge and without any notice to her of any kind of any intention to make such or any addition to her said property.

She says that the county auditor has assessed taxes on said additions as made by said boa-rd, one-half payable on or before December 20, 1892. The auditor has placed taxes on said additions on the duplicate, and intends putting it in the hands of the treasurer for collection, and the treasurer will refuse to receive any of the taxes unless also taxes on said addition are paid. She is ready and willing to pay the taxes charged on said property before said additions were made. She asks that the officers be enjoined from collecting any of the taxes upon said additions. A restraining order was issued by a judge of the Superior Court. Supplemental petitions were filed, asking the court to enjoin the collection of taxes on said additions for the following years, and restraining orders were granted by the court. And defendants’ answer admit that plaintiff was a resident of Cincinnati, and was the owner of the real estate mentioned in the petition, and that the Board of Review made the additions to the property as alleged in the petition; admit that the duplicate is in the hands of the treasurer,and that he will demand payment as therein charged, and deny generally the other allegations in the petition.

Plaintiff’s petition was dismissed pro forma, from which she appealed to this court.

The question raised by the pleading and argued by the counsel, is whether the plaintiff had been served with notice such as required by sections 2804 and by 2804a and section 2804b, as passed March 31, 1892, vol. 89, Ohio Laws, page 174 and 175. By section 2804 the Board of Review is not authorized to make additions to the value of property until the owner has been served with notice of their intention to do so. By section 2804a the notice shall describe the real estate whose tax value shall be acted upon by the description in the tax duplicate of the current year, and the name in which it is taxed, and that the tax value will be acted upon by the board on the tenth day after said notice shall have been served as provided in section 2804b, which requires that notice shall be served (1) by delivering a copy thereof to the person or persons interested in said real estate or by leaving such copy at the usual place of residence or business of such person; or if no such place of residence or of business shall be found in the county (2) by delivering such copy to the agent in charge of such real estate and collecting the rents thereof; or if no such agent shall be found in the county (3) by advertisement thereof inserted one time in a newspaper of general circulation in the county in which said real estate is situated,and notices to the respective persons interested in different pieces of real estate may be united in one advertisement under the same general heading. Notice served in accordance with any of the above provisions shall be sufficient.

It is not claimed that plaintiff was servedwith notice by delivering a copy to her or by leaving a copy at the usual place of residence or place of business, or by delivering a copy to the agent in charge of such real estate and collecting the rents; but it is claimed that a service made by order of the board August 30, 1892, and published in the Enquirer and Volksblatt, August 31, 1892, notifying her that additions would be made upon September 10, 1892, was a sufficient service, and that additions made on the 12th of September, 1892, were legally made.

The testimony shows that the plaintiff had resided at 138 West Eighth street for the past fifteen years, and lives there yet. It was her custom to spend the heated term away from the city; that she left on July 7, 1892, and returned on August 31, 1892; that her house was closed, but there was a front storm door on Eighth street with a crevice at the bottom sufficiently wide to admit newspapers; that no person had access to the vestibule until her return except herself; that she then found newspapers and advertisements slipped under the door, but no notice from the Board of Review or any paper in which her notice was published; that she attended the collection of her rents herself generally, and did so on the 1st of July, before going away, all of said property, except her residence, being occupied by tenants, Mr. Howard Douglas received her rents when she was out of the city, but at this time Mr. Douglas was in Europe; that she never heard of the intention of the board to make any addition to the valuation of her property, nor of their having done so until she went to pay her taxes in December, a short time before filing this petition.

A number of notices were issued, all dated in August, directed to Mary A. Britt, and service was attempted by several different agents, on one 1196. The return is, “Residence, 138 Eighth street — out of town, back by September 1.” And then on same envelope, “Agt. Howard Douglas ' — out of town, back by September 5,” 'And then out of town, delivered, no name of person making the return. In another 1033, endorsed, “Out of town, back September 1.” “Agent Howard Douglas gone to Europe, owner out of town.” On another one 1597, “Can’t find Davison. ” Who made this return or who Davison is, don’t appear anywhere. On another, “Leave at 138 West Eighth street, near Elm, September 1, signed Anderson.” And on another was the direction, “Leave at 13 West Eighth street, near Elm, signed Anderson. ” “House closed, can’t deliver, signed Oakes.’ It was in evidence by a gentleman, a clerk of Mr. Howard Douglas, that some person came with a notice for Mrs. Britt to serve Mr. Douglas as her agent, but the clerk informed him that Mr. Douglas was in Europe, and he, the clerk, was not her agent and had no authority to accept the notice. Under this state of fact, was the notice published by the Board of Review, such a service as the law requires? We think not. Section 2804b is peculiar in this, that it provides for three different modes of service and they are stated in numerical order with figures in brackets (l) (2) (3), and they are to be served in that way in the alternative (1) personal service; or leaving a copy at the usual place of residence or business of such person; and if no such place of residence or business be found in the county, then service may be (2)made on an agent in charge of the real estate and collecting the rents,if he shall be found in the county; (3) if no such agent be found, an advertisement shall be made in a newspaper of general circulation in the county. Notice served in accordance with any of the above provisions shall be sufficient, but before an agent can be served, it must be shown that the person interested in the property could not be served personally by a copy of the notice, or that such copy of a notice could not be left at his place of residence or business or no such place of residence or business could be found in the county. And before notice by advertisement would be good it must be shown that the party had an agent in the county and serving him with copy was impossible,.or that no such agent could be found.

Now, in this case, no copies were attempted to be served. They were all originals, and all returned to the office, with the information that the plaintiff resided at 138 West Eighth street and would return the first of September, and there is no evidence whatever that any person left an original or copy of the notice at the well known residence of the plaintiff, although from the structure of the front door it was an eagy-mlát;tíéí’,,itb!iba,ye,í[íüálí'é'd ít'iíhdbiC#É'©re'«shO'^co'uld .biíteD oBtáiíie'tMt wbé!ñ‘'gbénféil;ü^ñl6'dl'b|Dfíig,üasti?My téeiíiiíaoáy fellOWS^í sH^'didb’A Wedaiegdhy; 1i4ugügb.;¡8&t,''lf892rí',:'0?Iám'ttf6 haSí citító -dé- iítíibei!dliériá‘ui!b!'o!i!ftá'eS:í:ií?Hi6Í •ffá&táitó 1 éWÍ •tewnáfri tM^Tá-wUTh'^díNdiíiió'rít Ilei)’dry,-’!|)'agb,47i7] it wag «&id támAu w%‘éiWfede"iiiét;b'od's‘0f Sefvié'e- wéíe^fbvidé'd/'tib'© lktte:ird&m peMing’iipb'tf ¡tbé ‘inábilífcy'ib Jfeéiwe’• by 'eitíísr of ¡tía#árs'titíy^d metbbds|''é!ó serVicd by ‘filiéi!tbi'id' !m,é'i>h0'd,Sb'Wkrrá®i!ediíMle8W séWicé'i'jdrfejjbssibi'é^y th'é fíi?s''i>!í1fw¿,:|Eñe’ñlóds).'J'l--''¿ Howard^ ■' UÍ‘¡St 184§ / ,4!á'#é'dé'fal^ ffiép&ítefy' '3Wfr97 "‘Ü'tíM&á'1 fiftírtás^a áí4\ 'TNe»:!l\í,éxiii¿,i:57'B‘-’'8. ¡«If ni iwivw <>d ut w¡ -(oilr Im/s

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source: Caselaw Access Project

author: 'GcRiéNBE,‘''!J.

license: Public Domain

text:
    (Sixth Circuit-Huron Co., O., Circuit Court
    Nov. Term. 1895)
    !->dS.ejLdbner,,iHaynes,,angjKjpgfj

      CATLIN, et al. v HUESTIS, Ex'r.

      WJ¿éré}till'’á!ábti'' ópHeémséd/-ár)¡: fitíiú 'Vij^th'é'ipm'tiés',eÁPitUU^'to'>t}íé'¿ o i tedíate,'iw. ■ ú$$imimsíí>:atpr// slwviltli ¡ bhiapp.qlntepf'-qntl ¡ nwnqyi smkn í&a i,¿áW'b,éfeíi'¿kid tíyí lSi’é^p8ríjifes'feniííi]llddP’fiolWÍ0t¥fifid feiláy ífhevtfe'iSis litis? therriílli off fchei dw easedqithUije iismo p4ee@sf|5Tí6orS(flri‘'Hdícni^isf'T íütefe? S-fflTOÍfF fe?)99g np faMMfftWRFiR ; até qij encourage proceedings uncjer t^e directio(n( of the probate^ court’fór‘the1 adihirfistratioh o'f ‘árdéstaté nbi’th'ó'éfspenditiiréf^clf8 íOmbifé^íéft bjOdsGe'ased pa'rtiGs 'fdrithb"niters)fdrhís!®f 'adiü>ikt'steB¿fi ■•f-.iin'ginEÓP aj^epta-t^,; , •. ,¡,.i 1%

      Tombstone — When ujot .;a proper charge against the estate of ,the cl©,-., i->! >jtw Ji moo íuotí ->t¡: 0(1 ■>>'.)runonr :rn;-;i nüijonftr? .mi ceased’.' 'V\> ’ 'i ) ■’ i 7,

   'GcRiéNBE,‘''!J.

L’inbWa*’ ¡u fí"'Er'Oaílin^W^B!' datlin, Éffie f Catlin as guardian of Bert Catlin, Glen Catlin, Verna Catlj^ and Claud Catlin, minors, have instituted proceedings in erroyi^ th.is.qqurt agajnsj; Jonathan Huestis as executor . of the last will and testament of Elias W. Coit, deceased, by which it is sought to reverse the judgment which was rendered., in, favor of,. the.'defehááh in'error ¿gainst'the plaintiffs in eryoriin, the^oijy.t 9f,ppnajgon( plg^spf-H,uajpn,po(u:qtj;t ,n.M.,

It ¡seems; from ¿he. record:in the c.asertbat ¡theopla-intiffs in-n error instituted 'proceeding's i® the'' cour f of; leómiüo® ¡pléás o against one Emefy^'CarptenteY; by !vdi?cli!r'thb pi'á'imffifs!,U!’ through-'theii? gtordiahjSought tó'establish ¿heir íriig,Ht';toLfhe sum of two-lrdndrecl-doll'arsp claimed‘ifo i-be-in fhe’v bandfe of»;-' the ■defendant, Carpenter,'‘to'-which; ¿s ¿he plaintiffs Maimed',’>u through'¿he-ib guardian, they Weré'teütitletl.MM'; .¡n!"!,. : •

The petition in the tiase'alleges’that the plaintiff, Minerva^ ¡ Catlin,'is ¿he dídy;áppo’iüted and'qualifiedgü’aífdiaíifof Berti"' Catlin';''Gl'en'Catlitóv'Verüa OatlimsndíCl&'ud'Catlinpminors, ni Thepetitibn proceeds'further to • allege •; that on-Abe Mfb'óf o May,"1887, one' Elihs'-Wl'Colt "died'7testate,;; leaving adast-c .will ahd téstaiñeútpWhich*'áftéir:his death'was dnlyndmi-ttedLl to píóbate in said'county of-'Huron,uafad a’Cópy qif which last. will' an d testaineh’t is* hereto afta o'h'é'd cm arked1 ‘ ‘ Exhibit ¡A'/; ?;; » and5-fully seffórth in the petition and Co'ntainspas is averred, sc thé’follówinguláuse': i • ■- "i"-" l.';- -■ í,>.jíiM

‘‘I give and devise to’my two’ daughters, EÍlenVnd &árah'' U the farm oh which'wé1 hów live'¿fatf reside1,1"sitttále fín'Fair''11,1 ions'iandiall.oth.er gopds.and .chattels which,;nipynjpe thpr.eqii,-,-; at thp.-time,of,(Imy.,decease,, during..tpeir Mtur.al. lives,. a$ aforesaid. All my just^and'lawful debts sÉall be paid from the said estatep goods and chattels,' and likewise'my''fúnerá'l 11 exp’ánse^.' ' '.’.¡.íMíí:'.;; ;’v 'i -• <Ir11 ííl¡ :■ -i'Jl*;
‘■‘likewise;51 further"bequeath-Go tbemyrny''daughters;• •: Ellen and Sarah, my expectations, coming to me from my late grandfather's estate, now in the hands of the executor of the same, of New London, Connecticut, for final settlement. ”

The property or estate here referred to by the executor as “my expectations,” constitutes the principal subject matter of this controversy.

“At the death of my two daughters, the real estate aforesaid and such part of the said personal property or the proceeds thereof as may remain unconsumed and unexpended, I give and bequeath to my grandchildren, sons and daughters of Victor and Minerva Catlin, the same to be equally divided among them at the death of my two daughters.”

The petition then avers that “subsequent to the death of said Elias W. Coit, moneys of the said Elias W. Coit’s estate, which moneys had been received by said Coit as his “expectations coming to him from his late grandfather’s estate, ’ ’ and being a part of the same money referred to in said will as “iny expectations coming to me from my late grandfather’s estate, now in the hands of the executor of the same, of New London, Connecticut,for final settlement, ” duly came into the hands of, and were received by his two daughters, Ellen and Sarah, mentioned in said will, from Elias W. Coit’s said estate and under and by virtue of said will. Said moneys or fund to the amount of two hundred dollars was, on or about the 5th day of Ocober, 1887, loaned by said daughter Sarah (whose real name was Sarah M. Coit), to defendant, Emery Carpenter, said Sarah M. Coit at the time taking from said Emery Carpenter his promissory note for the same, by which said Emery Carpenter agreed.to pay to said Sarah M. Coit said sum of two hundred dollars one year from date, with interest at the rate of six per cent per annum. A copy of said note is not here given, the same not being in the possession of, or accessible to, plaintiffs. Subsequent to the time of giving said promissory note, on the 21th day of November, 1892, said Sarah M. Coit died intestate, and on the 27th day of November, 1892, said Elias W. Coit's daughter, Ellen, mentioned in said last will and testiment, and whose name at the time of her decease was Ellen Cooper, died intestate, leaving said fund of two hundred dollars so loaned by said Sarah M. Coit to said Emery Carpenter in said Carpenter’s hands entirely unused and unexpended, and leaving said promissory note wholly due with interest thereon from the 5th day of October, 1892, said fund and money so owing by said Emery Carpenter at the decease of said Sarah M. Coit and Ellen Cooper being the same fund and money so specifically bequeathed by the said will of said Elias W. Coit as his ‘expectations’ from his grandfather’s estate.”

Then the petition proceeds to aver that the said plaintiffs, “H. E. Catlin, W. B. Catlin, Effie Vennard, Bert Catlin, Glen Catlin, Verna Catlin and Claud Catlin are the children of Minerva and Victor Catlin, mentioned and referred to in the said last will and testament of said Elias W. Coit, and by virtue of said will they are entitled to said fund of two hundred dollars and the interest thereon, which fund is still in the hands of defendant, Emery Carpenter.

“Plaintiffs further say that at the October term of the court of common pleas of said county of Huron and State of Ohio, on or about the 16th day of December, 1893, in an action or proceeding then pending in said court of conmmon pleas under the style of ‘In the matter of the exceptions to the inventory and appraisement of Stephen L. Cooperas administrator of the estate of Sarah M. Coit, deceased',’ and in which action or proceeding H. E. Catlin, W. B. Catlin, Effie Vennard and said Minerva Catlin were the exceptors, and defendant Stephen L. Cooper, as administrator of the estate of Sarah M. Coit, deceased, was the adverse party or defendant, the rights of these plaintiffs in and to said fund of two hundred dollars and interest (then and ever since being in the hands of defendant, Emery Carpenter), under and by virtue of the said last will and testament of said Elias W. Coit, were by the court heard and adjudicated, and said court of common pleas then and there, after full and complete hearing found, among other matters, as follows, to wit:

(R),- TR# the .$$00,.QO $ote ;1in,clu.ded-iníthe ijnyeptpfy jjijijadep.jhejhea^ ‘ Scj}ed;u,R! Rí„.,gs e^pepted fq .Ry.ipidjphildrpn . of Minerva and. Victor Oatlih, as being improperly included ‘’in such inventoryJ whs éxecute'd’Ho' said1 SaráR’M.'‘Coit .‘By 'Hh'é E,‘; Gi'Cáfpen'tér, dní'or about"the 5thlday;óf Ócto-beír, 'lx88»7', and the ¡principal;of The.'same¡ and ® portion-bfiThe-.Mjteresjt.'Wiaa¡never.paid to^eyiused-by said Sarah M.i-Ooit, .and ‘i9,<?w-.-ffiWns¡i^tac,t(, iu¡! .......

(2)fi That the $200.00 for which .said.note was..given, 'was received' by said Sarah M?.' Coit from the estate of Mias 'Coit', ’her"father,''u'nd'ór an'd by virtue'df:his l'áfet 'will'Rn'd ^¡iíéSthm'bM,-' and'uhder'knd-subjeckto The following provisions ‘thereof,"¡Torwit; ; (Quoting from -t-he-¡<will;;and':provision!I rR.aye alypftdyiread.) ... ... . ,x , . .. ;;...

“(3) The court proceeds in that .case to. fjiid (thah said S^rah M. Coit left no unpaid debts ’ except as ’hereinafter mentioned',1 and’no'pari of said'fund of two hundred dollars •iá'tíecessáry to' be'tkken to-pay'fhe same. •

f K5^hd,;^laíntiffá further-'sayTh&f' thereupon'-knd-'- in;'’said 'prdcdddin'g pr’áfetión,' thb’skid ddu-rt mkde thbfóllowíh'g-órdóf, RB!wfE:' ‘That ’said’'note’of $200100i'eke'cuted by' said Oár'jíóntét, 'bb stricken frbm -skid' fin véntoryahd -appraisement/

’“Plaintiffs;sdy that fit1 the May* téírin df- the 'circuit;"6'óüft of said Huron coiihty,-Oh'ibf'ifi the1 yfeár' 1894, fni kn actidn M which 'said1-Stephen uL. Cooper, as administrator :bf ' the ■e'Siktewf Sarah.Mu Coif,'¡deceased1,; was. plain tiff in errorcand ¡said Miherva'Gatlin, Hv E.-'Catliny W.-B;>Catlin and'Effie ¡Ventoard werevdefendants.'-in1 error,■•saidxcircuit ¡courty after a full’ and-complete’ hearing of said action-.in©rrorpaffirmed ■the¡said¡findings,¡-judgment andx'order¡of said court- of! com-Wen pleasy' which. findings ¡or- decision,¡..judgment and -.©rater -Were the subject ¡matter of,’, and'were assigned for -error ¡in s&id¡action in said circuit court/’> m - ¡" • r m.- 'A

H The petition'then proceeds’to aver that'Me amount df sái'd 'if ■ o*f.j,' *s<y ^ If. ,{ * . * f: ,j^th. .Ras. acprugd tljprgoiijfro^ dpy. qf, ..October ,1§QP, is-Rue/p tRb plRntifR,, qnd.jjidgmeftt isi,prayed>a¡ccordinglyvfi ¡ m.-mr-»»: i- vini n ¡ •«!

-■¡''i-Phb'fe-is'-attSChed To Tfre ■petit-ion’;a's an bxhibifa C0py!bf íhb vViíl 0!f’Me^deCedbiit,'Elias W: Coit, knd’in it:fs found -trr.< • ,1)11! !¡r f uí; mi. i'-jj. umirui. • o --¡ire: fipdau^e:!, ..... ’llC 1/M]

“I do hereby nominate and appoint the present master of the Masonic lodge, located at North Fairfield, and his successors in office, my executors of this my last will and testament, hereby empowering them to see that my last will and testament is fully carried out and all business of the same is fully attended to, and it is further requested that no bail or security shall be demanded by the probate court, trusting all to their honor and integrity.”

Thereupon Emery Carpenter, the defendant in this action, appeared and 'filed an answer in the nature of an interpleader, in which he set up the fact that one Jonathan Huestis, who is executor, as he says, of this will, appointed by viftue of the clause of the will to which I have just called attention, claiming that he is entitled to administer upon said sum of $200.00, and he prays that he may be made to appear and maintain or relinquish his claim.

Thereupon, on the 6th of August, 1891, the court of common pleas passing upon this answer in the nature of an interpleader, of defendant Carpenter, setting up that this man Huestis, as executor, makes claim to the fund, ordered Carpenter, the maker of the note, to pay the money, the sum of $200.00, with interest from October 5, 1892, into the hands of the clerk of the court, and that in default of such payment, execution issue therefor, and that the clerk hold the fund subject to whatever final order may be ultimately made in the case.

It appears that the executor, Huestis, filed an answer and cross petition in the case, setting up the making of the will, and setting up that it had been duly admitted to probate by the probate court of Huron county, and that letters testamentary had been issued thereon to him, and praying that the court make an order that the fund should be paid to him, and setting up in his answer and cr'oss-petition that there are just and lawful debts existing against said estate of Elias W. Coit, amounting to about $69.00, a schedule of which is hereto attached marked ‘‘Exhibit A;” also the costs of administration of said estate, and the court costs already necessarily incurred and due to Judge G. T. Thomas, amounting to $7.16, and he says that said decedent left no other personal property or effects to his knowledge with which ■to pay said debts and costs, and he prays judgment that the money be paid to him, including interest, and that he may have such other and further relief as may be proper and just.

There is attached to this answer and cross-petition a schedule showing the outstanding liabilities as claimed by him, and this is the schedule: “Schedule of the debts of the estate of Elias W. Coit, so far as the same have been presented for allowance: Estate of Ellen A. Cooper for witness fees paid to Emery Carpenter and George W. Coit, at probating the will of Elias W. Coit, $4.00; Stephen L. Cooper, monument purchased for Elias W. Coit, deceased, $65.00 total $69.00. And he says in his answer and cross-petition that there is $7.16 due the probate judge for further fees in the business.”

There was a reply filed to this answer and cross-petition of the executor, by the plaintiffs in the proceeding, in which, in brief, it is set up that it is admitted that Huestis was appointed as claimed by him, by the probate court, and that he is qualified to act; that the $200.00 note mentioned and described in plaintiffs’ petition, is in his possession, and that he demanded payment of the same from said defendant, Carpenter; that payment was refused by said Carpenter, and for want of information, defendant denies each and every allegation in the answer and cross-petition alleged. And they say specifically that if the alleged claims mentioned in said Huestis’ answer and cross-petition, and constituting “Exhibit A” attached thereto, ever existed, they are now barred by the statute of limitation's, more than s‘ix years having elapsed since they were made.

The executor replied to this allegation, making an issue of the statement made in his answer and cross petition.

■ The court of common pleas, at its April term, 1895, tried 'the case, a jury having been waived, and upon the trial, found in favor of the cross-petitioner, Huestis. The court found specifically that the debts alleged to be due to the estate of said Elias W. Coit, as appears in said cross petition, to wit: $05, $4.00 and $7.10, have been presented to said executor for allowance, and have been by him duly allowed; that the $200.00 note and interest thereon, mentioned in said pleadings, and the proceeds resulting from the payment of the same by defendant, Emery Carpenter, to the clerk of this court, made on the Gth day of August, 1894, recorded in volume 22, page 170, of the journal of said court, are assets of the estate of said Elias W. Coit, deceased, and the said Huestis, as executor aforesaid, is entiled to said fund, •and it is ordered that it be administered by him.

A motion for a new trial was filed and overruled.

There is appended to the record a paper purporting to be ■an agreed statement of facts, and a copy of the agreed statement of facts appears in the bill of exceptions, which is as follows: <_

"It is conceded by the parties hereto, that the following facts are true: ‘That after the death of Elias W. Coit which occurred on or about the 9th day of May, 1887, his •will which is set forth in the petition, was duly and properly probated, and that his daughters, Ellen A. Cooperand Sarah M. Coit, referred to and mentioned in the will, receive the entire property of Elias Coit, according to the terms of the will; that they settled and paid all the claims and outstanding debts against the estate of Elias W. Coit, of which they •knew, or of which the defendant now known, except the alleged claims hereinafter stated; that after the death of the said two daughters of Elias W. Coit, and the appointment •of Stephen L. Cooper, as administrator of the estate of Ellen A. Cooper, he presented to Jonathan Huestis the claims alleged in the answer of said Huestis after the time of the appointment of said Huestis as executor herein. Said alleged claims have not been paid. The ■children referred to in the petition are the children of Victor and Minerva Catlin, referred to in the will of Elias W. Coit .án'd-Minerva Catlin is their-- duly appointed and qualified -.guardian. It is.further conceded that on or about November .1, 1893, Stephen'!/. Cooper, mentioned in plaintiff’s petition and defendant Huestis’ cross petition herein, purchased of Tyson Brothers of Plymouth, Ohio, a granite-monument as per contract hereto attached, the same to be set over the graves of Sarah M. Coit, Ellen A. Cooper (wife of Stephen), and Elias W. Coit, which graves were together in the same cemetery. Such monument was inscribed with the names of Ellen A. Cooper, wife of Stephen L. Cooper, Sarah M. Coit-, sister of Mrs. Cooper, and Elias W. Coit, the'father of Mr. Cooper’s wife.
2. “That prior to November 1, 1893, Ellen A. Cooper died intestate, leaving Stephen L. Cooper, her husband,, as1 her only heir at law, and leaving. property to be administered to the amount of about $1,300, which came to her from a former husband.
3. “Stephen L. Cooper was appointed and duly qualified as administrator of the estate of Ellen A. Cooper prior to November 1. 1893, and said estate was not settled prior to said November 1, 1893.
4. “Said Stephen L. Cooper paid Tyson Brothers for said monment from moneys in his hands which would belong to him as heir of his wife, which came into his hands-as aforesaid from the above mentioned estate of his wife.’r

It will be seen by this statement of facts which is made and somewhat prolonged and perhaps unnecessarily so, that the claim of this executor under this will and the right and power to administer this estate, rests almost exclusively upon the claim made in the casein his behalf that there were debts outstanding to the extent of $69 for the grave stone and $4 for probating the will, together with some $7 and some odd cents for the services of the probate court in further proceeding in administering the estate.

It was ruled by this court substantially upon the trial of the case as it came here in a former proceeding, under the authority of the 46th Ohio State, 391, and the 30th Ohio-State, 288, supplemented by a case since reported in the-51st Ohio State, 446, that there was no necessity, as the-[facts apppari la this case, for-an administrator or, an ex;ecu,tpr ..tOrclose;.np;;fhis estate,-.- It appeared - safisfaQtory, to.f-the j.ep]irt - ¡uppn fhat-,,.hearing,;, that-, spbstsnti&lly all;outstanding .debts had been paid bydhe parties ¡entitled,, to. the f;und under ¡the.-terms pf... the, ¡will, of. th,e deeeaspdv. Mr. Coit, ,a¡ad ,,tfee icourts,¡qlp nof;tolerate, -or ¡encourage, proceedings -unde-ir-tbe. ...ddLeptjpn.pf. the probate£cpurt, for ¡fb¡e -administration of¡ .an jestates, nor the, expenditure,pf,money, left by depended parties [for th.e mgfp fpims-pf administering, upon,an estate. ■; • r

j,H:In.this;C.ase-it'WOuId(,,appear, and.ft is.not opnfra.venediby i anything.stated ,here0-.thatnthe,debts dpe from this,estate had ib.een.paidj -or.at¡least substantially paid,.,,-The debtlhat#8 set up here as one of the-.debts pfvthjei.estate-for.th.e-purchase tof;®,-tombstone,, th.e recordpatlgfaqtorrily shpws.js n.ot>ardebt ¡¡of the estate-of.the. decedenf. --.v.i-fs' • • -u

i i T-h-e-statute doesrnot .make any provision ¡for ¡the .payment pf;!s®e.h'ra. debt. -. Seetipn 6185 says:. The- court may.$l§P, ¡.omsettlement, .allow, as a,credit, tpft-hemxecutqr qriadmjpisrtrator, any tjust andl .reasonable, amount expen.ded.by ¡him for -autom-bstone of monument for .the deceased.; but-It, shall not be,.incumbent.pn any .executor,or-administrator,¡to procure a ..tombstone qr.¡monument..”; - , ...

*■., I®,other-words,-the statute empowers.an executor or an administrator . tP provide ,a monument.¡for-a deceased party with the consent and approbation of .the probate court, and .where, that, has ¡been .done,; he is warranted and authorized in paying .from the -assets,.of t¡he estate for such monument. But ..this monument for which the claim is made here, was .not q®e y-hich.-was provided for by tbe administrator or the -exec-utor;: it was one that was provided by Mr. Cooper, the husband of the deceased, Mrs. Cooper, rather for his deceased wife than for the other parties interested in the estate, and Mr. Cooper could not undertake, either with or without the authority and consent of the probate court, to charge upon the little fund remaining of the assets of this estate, any part of that expense. There was no authority by or from the probate court to provide that monument. The probate court could not have conferred any authority upon the executor to erect a monument under such circumstances and charge the expense upon the estate, unless it might be argued perhaps that the executor might contribute with other parties in providing a monument for several members of the family, including the deceased testator. But that was not done; there is no pretense that anything of that kind was done. So that, leaving out of view what should be done with the item of charging for the providing of a monument for this deceased Mr. Coit, there remains just simply the expense that was incurred in procuring the probating of the will; that was all there was of it. There was no necessity whatever, so far as appears in the record in this case, for the appoinment of this executor; there were no debts to be paid; there were no duties to be performed. This $200 was in the hands of Emery Carpenter whose note was outstanding for the amount, and these children by their guardian were seeking to enforce the payment of it by some means — what means we are not advised. This man Huestis, master of masons for the time being, and coming perhaps within the terms and provisions of the will, places himself under bond as executor to take charge of this' estate and administer upon this fund.

Our conclusion is, that the appointment of this administrator was wholly uncalled for and entirely unnecessary. The case is covered directly, we think, by the reported decision in the 46th Ohio State, where it is held that moneys or devices such as these were, may be claimed directly by the legatees or devisees without passing into the hands of the executor; or, if it fairly appeared that there were creditors who were entitled to be paid, it might be necessary, upon the failure of the devisees or legatees to make payment-where an administrator was appointed, for the executor to claim a fund from which to pay the debts that were set up, if any there should be. But here there are none set up that are entitled to any notice or recognition; none that would warrant a party appointed as executor by the probate court to claim and hold and administer this fund as against the children to whom it was devised. The result of our views in this particular is, that the judgmexxt of the court of common pleas in this respect should be reversed, and the case will be remanded to the court of common pleas with directions that the fund be paid to the proper parties.

G. Bay Craig and Andrews Bros., for plaintiffs in error.

Stewart & Boioley, for defendant in error.


author: Day, J.

text:
    (Third Circuit—Wyandot Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Seney, Day and Price, JJ.
    JOSEPHINE HIGGINS v. JOHN HIGGINS.
    1: “Where a legal estate in realty and an equitable one, coming through different persons, unite in the same holder, the course of the legal estate, and not that of the equitable, determines whether the holder of both, does or does not have an ancestral estate.”
    2. D. H. inherited an equitable estate'from his father, and subsequently, by action in a court of competent jurisdiction, for specific performance of the contract by which the father acquired the equitable estate, secured the outstanding legal title to the same estate: Held, the legal title was not acquired from- a different source, or by purchase, but from the same source arid by inheritance; and the whole estate is ancestral.
    Appeal from the Court of Common Pleas of Wyandot County.
   Day, J.

The action is by tbe plaintiff, Josephine Higgins, to obtain an order of the court quieting her title1 to real estate described in her petition, in which she says in substance: One Darlton Higgins was seized of an estate in fee in the lands described, comprising 160 acres; that Darlton died in August, 1890,’Intestate, leaving no children or : wife, "no'1 brother or sister,' but just one mother and shé a wido^, "the'" plaintiff ;in; the c'ásé; that'shé is'seized of an estate in fee; arid1is in the actual'possession of the said lands, and she prayá adeerée quieting her title’as against the adverse claims bf dé-’ fendants. 11 1 ' '■

John Higgins is the only defendant named in the petition1,' but1 Ransom Higgins’ and'Lavina Wonders were subsequently'’ made defendants with leave: to plead. The defendants all made answer: John Higgins, in effect, disclaiming all in-’1 terest in the land in question, and RansOm Higgins and Lavina Wonders in substance asserting that title to the land in controversy came to-Darlton Higgins by descent from his . father, James Higgins; that Ransom and Lavina are the only brother and sister of said James Higgins, and plaintiff is his widow. That on the death of Darlton Higgins, intestate, plaintiff became possessed of an estate for life, only, in said real estate, and that the title in fee,, subject to suclr.es- . tate for life, passed to and vested in the brother and sister of James Higgins deceased. A reply denies that title came to Darlton Higgins by descent, and asserting it cpme by purchase.

The relationship of these parties and persons' named is conceded. James Higgins deceased, was son of .John Higgins, husband of plaintiff, father of Darlton and brother of Ransom Higgins and Lavina Wonders. James Higgins died, intestate, leaving Darlton Higgins his only heir and plaintiff, .his widow. Darlton has since died intestate, without relatives or heirs other than his mother, Josephine Higgins, the plaintiff, and his uncle and aunt, Ransom Higgins and Lavina Wonders aild grandfather, John Higgins, the defendants'herein. ' ' ■'■ 1

The'reTs’no question'or differerice-of opinion as to f’h'é'la'w'1, of 'descent in the base. ;If the1 fact be that title to'thé land came to Darlton Higgins by descent from h;is ancestor, James' .Higgins, then i't passed to and vested,1 in fee, in Ransom- ' Higgins and Lávina Wonders subject to or encumbered-by-•a life estate in plaintiff/ If the title'came to Darlton by purchase, the title in'fee vested in'the' plaintiff, Josephine'-.' Higgins. So the only question 'is one of fact, and is: - -Is theU próperty ’in question ancestral or non-ancestral ? - 'Did title : come to Darlton Higgins by purchase'by hiin'or- by .descent'.' from his father, James- Higgins', deceased. And upon’ that'question the undisputed facts are: John Higgins and-frisson James Higgins, father of-Darlton, in 1869 orl870¿ 'en- --- tered into an agreément; not in writing, on- consideration ’ partly good and partly valuable; whereby John'sold'.'and'." agreed to convey by good and sufficient deed, to James,-the ' 160 acres described and 40 other acres; put James -in pos-'" session under the agreement, which possession and usd Jámes maintained, until his death in 1878/ . .James occupied,-- - used and imprové'd the land-as his'own; and made payments-, on the purchase price. The purchase price was not fully : paid, and no-con-veyánce was executed. James died, dnt'es’-1 tate, leaving Darlton, ’-a minor child, his-only heir,- and-.: Josephine his widow. Darltonfs guardian began an/aetion -' against John Higgins for specific performance of the-coiitract between John and James, by a conveyance of the legal title to Darlton. The litigation resulted in 'a finding of'-$2,200, due John Higgins, of the purchase price under the contract, and a decree of- specific performance, ■ ordering' a convóyancé of the legal title to Darlton in ten days,-and in ' default the' decree of the court to operate as such convey/ anee. By a proceeding in. the Probate -Court of Wyandot county, forty: ác’res of the land'included in "the contract; was -, sold by the guardian; and the proceeds used-in paying'the'-said sum of $2,200 balance due a John Higgins-of. the'-púrz : chase price, as'"found by'the court in the case .for .specific^: performance; and by this sale the balance of the purchase■ price of the land 'was-paid in full. This.is a statement of all the material facts of the transction by which title to the real-estate in question was vested in Darlton Higgins, deceased.

It is clear the basis of Darlton’s rights in the land, was the contract of purchase and sale between John and James. Higgins, the possession and use of it, and the partial payment of the purchase price, by James. At the beginning,, therefore, the right or title, came to James Higgins by purchase from his father, and at his death descended to and. vested in his heir at law, Darlton Higgins, and per. force, whatever title was cast on Darlton was by descent. Counsel for plaintiff concedes this, but urges, that the title, at the-time it vested in Darlton, was an equitable one, only; that the subsequent proceeding for specifiic performance, and the payment of the balance of the purchase price by a sale of forty acres, conferred the legal title on Darlton; that the equitable title merged in the legal, and the'course of descent is controled by the legal title. Also claiming that the transactions which resulted in securing the perfect legal title in Darlton and the payment of the balance of the purchase-money due on the contract, was substantially, both in law and fact, a purchase of the legal title by Darlton,

It is true that prior to the decree of specific performance Darlton’s estate was only an equitable one. An equitable estate merges in a legal one, and the course of descent is controled by the legal title. Such is the law in Ohio, so-held by the supreme court in a number of cases, notably, and recently in the 50 Ohio St. 495; but how does all that affect the course of descent in this case ? No matter what the character of the estate, whether legal or equitable, it will descend, according to the provisions of the statute^ to Ransom Higgins and Lavina Wonders, encumbered by an estate for life in Josephine Higgins, if the estate came to Darlton Higgins by descent — if it is ancestral property; and only will it pass to plaintiff if it is non-ancestral. Plaintiff can-only hope to prevail in this case by making good the contention that the transactions, by which the legal title was secured and the remaining purchase money paid, was in legal effect, a purchase of the legal title by Darlton; and this, we much fear, she will not be able to do. The contention seems illogical and not supported by the facts appearing. To constitute the acquiring of the legal title, a sale to Darlton, and to characterize it as a purchase by him, it is necessary that the acquisition be wholly upon considerations and from sources, entirely other and different, than by which the equitable title came to him; but in the transaction by which the legal title was secured in him, the essential facts requisite to make it a purchase appear to be absent. There was no new or additional consideration passing from Darlton — no consideration in fact, other than that expressed in the original contract between John and James Higgins; nor was the 'legal title obtained from another person or from another source, but from the same person and source as was the equitable title. Darlton’s attitude in the whole transaction was recbptive; entirely so. No consideration, either valuable or good, passed from him, and the legal title came to him purely by virtue of the rights he inherited from his father. " The right to invoke the aid of the law, through the proper courts, for specific performance of a contract and to sell a ward’s land to pay debts, were rights acquired by James Higgins in his contract with his father; and those rights, with others, descended to Darlton, and the proceedings in court by which the legal title was secured was not the acquiring of any new or additional right from another, or -the same source, but merely the perfecting — putting in the most favorable form, by the aid of the law, rights already possessed. No new right was obtained; simply an old one dressed up and made available for all purposes. There is not an element of bargain and sale in it, and no fact which, in a legal sense, even suggests a purchase of the legal title by Darlton. If there is such an element or fact, it has escaped our notice. The proceeding was solemnly had, pursuant to the provisions o£ law, in a court having jurisdiction of the matter. The decree vesting the legal title in Darlton was, presumably, based on rights appearing from of the contract between John and James Higgins and evidence concerning the transaction, and was made and entered by the court as being Darlton’s right under the contract, and it seems ill natured and scarcely fair or just to the court to assert the transaction was a purchase.

T. E. Grissell, for plaintiff.

A. Blackford, for defendants.

We find the estate was ancestral, and there will be a finding and decree for the defendants, Ransom Higgins and Lavina Wonders, quieting their fee simple title. The petition is dismissed, and the plaintiff is required to pay all the costs.


author: King, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    January Term, 1896.)
    Before Haynes, Scribner and King, J.J.
    CHARLES H. JONES, Auditor of Lucas County v. THE BOARD OF COMMISSIONERS OF LUCAS COUNTY, O.
    1. A county auditor, by virtue of his office, is secretary of the beard of county commissioners, and as such, may be required to perform the clerical work necessary to prepare their annual report.
    2. The word “secretary,” as used in section 1021, of the Revised Statutes, is synonymous with the term “clerk, ” as used in sections 850 and 1078, and hence the auditor can not charge or receive any compensation for making out such annual report, other than his compensation as expressed in the statute.
    3. The statute nowhere provides compensation for such a service, and an allowance by the board of commissioners for it, is illegal and void.
    4. Where such allowance is made and the amount allowed.paid to the auditor, it may be recovered back in an action by the board of commissioners.
   King, J.

This action- was commenced in the Court of Common Pleas under the statute for presenting to the court an agreed statement of facts where a bona fide controversy has arisen between the parties under sec. 5207 Rev. Stat, It was there argued and decided by the three judges of the court of common pleas sitting in this county, and an opinion rendered by them, which is reported in the first vol. of Ohio Nisi Prius Reports, at page 279, and the judgment rendered there was in favor of the county commissioners and against the auditor, and the auditor prosecutes error in this court to reverse that judgment.

The agreed statement upon which the case was submitted in the court of common pleas, shows that the commissioners ■of this county for many years, and in the year in question, were accustomed to employ, and did employ in the year 1893, the auditor of the county to prepare for them the report of their doing for the previous year. The statute on that subject is sec. 817, and provides:

“The county commissioners, annually, on or before the third Monday in September, shall make a detailed report in writing to the court of common pleas of the county, of their finanicial transactions during the year next preceding the time of making such report.”

■ They employed the plaintiff in error to make this report for them, and in the year in question they paid him one hundred dollars for that service; and this action is for the purpose of recovering that back, in case it may be done by the commissioners, they having made an arrangement to pay the auditor that sum and having allowed his bill, and he having drawn, in accordance with that allowance, that amount from the treasury of the county. As I have said, this was submitted in the court of common pleas to the three judges of that court, and a short opinion was announced by one of them, and with that decision of the case, so far as the court was called upon to go, and the opinion rendered, we are entirely in accord, and I shall not repeat more than necessary, any of the suggestions made by the learned judge who delivered that opinion.

' It is a principle of law, well settled, in this state as well as elsewhere, that an officer of the - public can receive only such compensation as the law allows. This has been repeatedly determined, and cases to that effect are before us, as in 7 Ohio St. 237, and 25 Ohio St. 13. It is argued here, with some ingenuity, I confess, that certain statutes prescribe that the auditor shall act as secretary of the board of commissioners,and that where that language is used, the powers and! duties conferred upon the auditor are different, and impliedly broader, than they would be if he were to act as clerk— which is the word used in certain other statutes. The niceity of that reasoning is impaired somewhat by the fact that the word “clerk” is used in the statutes relating to that officer, whether he be clerk or secretary of the board of commissioners, in the chapter relating to county commissioners, to-wit: sec. 850, which provides that the clerk shall perform certain duties; and the word “secretary” is used in the chapter relating to the duties of the county auditor; and it is clear from the reading of these statutes, that the duties required of the county auditor — who in one chapter is described as a clerk, and in the other as secretary, are the same, whether he fills one position or both, and they are therefore used by the legislature in this chapter as synonymous terms —describing the same officer. Section 850 provides that “the clerk shall keep a full and complete record of the proceedings of the board, and a general index thereof, in a suitable book provided for that purpose, ’ ’ and the section goes forward and prescribes fully and completely the duties of the clerk. It does not say who he shall be. Section 917 — which is the one I have referred to — requires the county commissioners to make an annual report. In section 1021 — the statutes not having provided who shall be clerk, nor how the commissioners are to get a clerk — it is provided that the auditor, by virtue of his office, shall be the secretary of the board of county commissioners, except as otherwise provided by law. That he shall aid them, when requested, in the performance of their duties, and shall keep an accurate record of all their proceedings; and shall carefully preserve all documents, books, records, maps and papers required to be deposited and kept in his office. So that, as I have said, this office being the same — whether you call him clerk or secretary — the question then arises whether he is entitled to any compensation in case he does the work he is required to do by law, or in case he does some that he is not? There are several sections, to which I need not refer, relating to the •compensation of county auditors, and section 1078 provides:

“The fees and compensation provided for by the foregoing sections shall be in full for all services lawfully required to be done by the auditors of such counties; and it shall be unlawful for any county auditor to charge or receive any other or further fees or compensation, either as clerk of any board, or for any other services rendered by him.”

Now, you ■ cannot very well evade the statute by saying that because the legislature says he shall be secretary of the board of commissioners, that this provision of the- statute does not apply, providing that he shall not receive any other fees. As before stated, it is a principle of law, regardless of the statute — that he shall receive no fees except those allowed by law; and here the statute steps in and says he shall receive no other fees for any other services performed by him as auditor, or as clerk of any board or for any other service than those prescribed by the foregoing sections. If he may be lawfully required to make out these reports, then he is compensated for it by such compensation as- an auditor gets. If he canot be required to make them out, the commissioners cannot employ any other person to make them out and charge the county for that service. But the statute, in this very chapter, prescribes that he shall aid the commissioners in the performance of such services as they may require, acting as their secretary or clerk, either -one; and it would seem that they might require him to make out this report for them, and the compensation which he has received as auditor is in full of anything that he can charge or receive-

And here I would stop; but we are of opinion that anoth-. er question is raised in this case.; and it is a question that, was not considered by the court of common pleas, and evidently was pot argued there. It is insisted here that the commissioners of the county, in their official capacity, having allowed this compensation to the auditor and directed it to be paid, and he having received his pay in accordance with such .allowance of the board of commissioners, that they cannot maintain an action against him to recover back moneys so paid out by their allowance, And the couri is cited to an authority in 35 Ohio St. 201 — to which I will refer directly. By section 845, the board of county commissioners are, by statute, made capable of suing and being sued' and of pleading and being impleaded, and are required to 1 ‘ ask, demand and receive, by suit or otherwise, any real estate or interest therein, whether the same is legal or equitable, belonging to their county, or any sum or sums of money, or other property due to such county; and the money so-recovered in any case shall be by them paid into the treasury of the county, and they shall take the treasurer’s receipt therefor, etc.” And by section 894, it is provided that “no-claims against the county shall be paid otherwise than by the allowance of the county commissioners, upon the warrant of the county auditor, except in those cases in which the amount due is fixed by law, or is authorized to be fixed by some other person or tribunal,” And section 1024 provides: “The auditor shall issue warrants on the county treasurer for all moneys payable out of the treasury, when the-proper order or voucher is presented therefor; but he shall not issue a warrant for the payment of any claim against the county unless the same is allowed by the county commissioner, except in cases where the amount due is fixed by law, or is, allowed by some other officer or tribunal authorized by law to allow the same.”

Now, it is clear that this claim, if it ever was a claim' against Lucas county — was a claim not fixed by law, nor to be allowed by any other person or tribunal, and therefore, if allowed by anybody, it must have ‘been allowed by the county commissioners, or must have been presented to them for allowance.

The case in 35 Ohio St.' 201, which is relied upon, is the case of Commissioners v. Noyes, page 201, was an action commenced by the county commissioners, to recover certain sums of money which had been paid to him under a contract m'ade by the county commissioners with him for indexing certain records in the probate judge’s office; and there was an answer made by him, setting forth very fully the manner in which he had received his money, and claiming that it was under a lawful contract entered into by the board of commissioners with' him, and that they had allowed these claims; that warrants had been drawn by the auditor in purnuance of the allowance for the payment of the ' work done' by him for the county, and which was done in pursuance of a.legal contract.

To this the county replied that the said contract was illegally entered into; that the commissioners were not authorized by law to contract for such services; that the work was unnecessary, uncalled for and of no value to the county; that the contract was let without competition — without advertisement — and that therefore it was entirely void.

To this there was a demurrer; and it was upon the ques- • tions raised by the demurrer, and none others, that the case went to the Supreme Court. In the course of the opinion, by Judge White, it was said:

“ As to the second question, there is no denial, in the .reply, of the facts averred in the answer, that the warrants , were issued on the order of the commissioners, in payment for work done by tbe defendant on account of the county, under a contract with the commissioners. It is alleged, in the reply, that the contract was illegally entered upon, and that the commissioners were not authorized by law to contract for the services. But of what the services consisted it is not stated, nor is there any statement of facts upon which the allegation of illegality and want of authority is founded. As the allegation stands, it is a mere averment of a legal conclusion; and, as a pleading, is of no legal effect or significance. ”

So that, so far as the reply was concerned, it did not raise very much of a question, and we are left to the answer, without any reply. The answer set up a legal contract for labor performed by Noyes for. the county, or work performed for the county. And the court further say:

“No fraud is alleged to have been practiced on the commissioners to induce them to allow the claim and to order its payment; nor is it alleged that the allowance or order was made under any mistake. Now, it certainly requires neither argument, nor the citation of authorities, to show that where work has thus been done, on account of the county, under an agreement with the commissioners, and has been accepted and paid for, that they can maintain no action, in the absence of fraud or mistake, to recover back the money thus paid.”

Now, that is what the court said about that kind of a case —there being no allegation of any fraud or mistake or of any fact from which fraud or mistake could be inferred or upon which it could be predicated, therefore the commissioners were in no position to recover back money that it was alleged they had paid upon a contract legally made by them, for work performed for the county. And that is where that case stands now; and. all that the decision amounts to, so far as it goes — and I take this trouble to refer to it because I know that it is a case relied upon in all cases similar to this, as authority against the proposition that money can be recovered back once having been allowed by the county comanissioners; but, in our judgment, this authority does not so Itold, nor does it come anywhere near holding it, but there is •an inference plainly apparent, that when money is paid out by fraud or mistake, it may be recovered back. Now, when Is it paid by fraud or mistake? Clearly when it is illegally paid; when there is no authority of law for paying it, or authority of law for entering into a pretended contract upon Which the payment is based. That makes fraud. And ignorance of the law may be often counted upon as a mistake, for money paid illegally, to recover it back, when the circumstances would warrant it.

One case occurs to me wheie the Supreme Court, looked into the substance of things and passed by those things which were only technical, in 34 Ohio St. 137, where it was «contended that the fees of jurors were fixed by the law and were to be certified by the clerk, and that upon that, no man —neither the auditor nor anybody else- — had any supervision. ’Certain jurors, having a certificate of the cerk in their possession, asked the auditor for an order on the county treasurer for the money. The auditor, having in some way understood that these jurors were getting pay for seven or eight days’ work that they had not performed, refused to draw the order, and a case was commenced to compel the auditor to draw it, claiming that the statute was mandatory, and that the auditor had no right to refuse. But the Supreme Court punctured any claim of that kind very forcibly, and say:

“If the clerk (of the court) in performing this duty, acted under an erroneous view of the law, or under a mistake of fáct, or purposely misstated the facts, and cértified a greater number of days than they had served, or a greater amount of compensation than was due to the jurors respectively, it 'is clear that as to the excess in either respect, the act of the clerk was unauthorized and illegal, and such excess did not constitute a valid claim in favor of the jurors against the ■county, and hence ought not to have been paid.’’

W. W. A. Reed, for plaintiff in error.

J. A. Barber, for' defendant.

Well, if it had been paid, could it not have been recovered; back ? It being illegal,, it never had constituted a claim,' against the county at all. That proposition seems very clear, and plain; and if the county commissioners undertook, by..-' virtue of the statutory power conferred upon them by law to:, allow bills, and allowed one that there ' was no authority to-allow, and through such allowance a party illegally obtained ;• money from the county treasurer, there ought to be lodged. ■ somewhere power to get that back, and it certainly is lodged, in this general grant of authority to the commissioners to-, sue fox and recover anything which may be due the county,, whether it be money or whether it be real property. Any other holding by us would seem to encourage looseness in.; the making of contracts and payment of so-called claims, and perhaps that kind of looseness which would amount even to-; a reckless allowance of illegal bills and claims. It ought to-, be understood that the commissioners, or any other officials.. having power to pass .upon bills, have no power to allow any- ■ thing that is not .a legal claim; in other words, there is no-, legal claim against the county to be allowed unless it has a , legal basis upon which it can stand; and when it has such ar, basis, the commissioners can.pass upon it and determine how;. much is due upon it, and with their discretion no court can.. interfere except it be a court deriving jurisdiction by.the:, way of appeal or upon error. But, if they seek to act, hav-y ing no jurisdiction — and seek to allow a claim that is illegal.. or invalid, then, as impliedly suggested by the decision .of' 35 Ohio St., it is money.paid by either fraud or' mistake, and it may be recovered back by the county commissioners therefore this judgment of the court of common pleas will: be affirmed.


author: Cox, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    SAMUEL B. SACHS et. al. v. HENRY CORDES et. al.

      Right of way for a road dedicated for private purposes.

    -1. Where an easement is granted for a private road to an abutting land owner, his heirs and assigns, it inures to the benefit of all the heirs and assigns, however many there may be, or into’however many parcels the abutting land may be subdivided.
    2. Where in a contract between several parties for a private road to be mutually used by them and their heirs and assigns, it is provided that a gate of & particular kind shall be maintained only at each end of the-road, neither party will be permitted to maintain one of a different land without the consent of the others.
    3. If after such a road is laid out, a public road be constructed across any part of it by the lawful authorities, neither party will be authorized to place a gate at the intersection of said public road without the consent of the other parties to the contract.
    4. The fact that a fence had been kept up on part of the line of the private road for many years, would not, in the absence of the contract of such a requirement, authorize the court to order defendants to fence along their line.
    Error to the Superior Court of Cincinnati.
   Cox, J.

The errors assigned in this case-are that the court overruled the motion for a new trial, and that the judgment should have been given for the plaintiffs.

The grounds of the motion were that the judgment was not sustained by sufficient evidence, and was contrary to law. Similar motions were made by each party. No bill of exceptions has been filed containing, the evidence offered in the trial, but the whole case comes before us on the findings of fact and of law.

Both parties except to the findings of law and judgment, but the errors are prosecuted by the plaintiffs.

' The action below was brought by the plaintiffs, who claim tcbe owners in common with the defendants of a right of way running north from the Observatory road, thirty feet wide, through a tract of twenty-one acres; that said right of way was dedicated for private purposes alone, and not to be used by the public or any other individuals except the assignees or heirs of the owners, without the consent of all; that agate was to be placed at Observatory road, and one on the north end of the private road; that since the dedication, Erie avenue, a street eighty feet wide, has been cut at right angles across the private road about 600 feet north of the Observatory road.

That defendants, Cordes and Cresap, in 1889 purchased a tract off the east side of said 21 acres, running north 535 feet along said private road from Observatory road to within 100 feet of Erie avenue, and have laid off said tract into lots with a street running east and west of said private road, and have invited the public to enter on said street to and through said private road to Observatory road and Erie avenue;'have torn down the fence on their tract on said private road, thus making said private road a public one, to be used by every person other than the dedicators of said road, their heirs and assigns, without the consent of all of them.

That to prevent such illegal use, the plaintiffs placed a gate at the intersection of the Observatory road and one at Erie avenue, which gates defendant threatens to tear down, and thus open said private road to the public, and plaintiff asks for an injunction to prevent such illegal act. .

Defendants filed an answer and cross-petition. In their answer they say that the road in question was established by an agreement in writing between Gabriel Simon and Babette Simon, Bexiedict Frenkel and Simon Newburg, a .copy of which is attached to their answer, and claim that the land which they own, bounding on said private way, is part of the said twenty-one acres, and came to them through transfers from Babette Simon, one of said parties. They deny that they, their servants or agents, are using said road contrary to said agreement, or that they are procuring or inviting the public to do so.

They say plaintiffs have locked said gates at Observatory road and Erie avenue. And they deny the rights of plaintiffs to put any gates at the crossing of Erie avenue and said private road, and deny their rights to lock any gate on said private road, and they ask that plaintiff be enjoined from placing a gate at Erie avenue and from locking any gate on said private road. The case was heard and the court, at the request of plaintiffs, made a finding of fact and of law.

1st. As a conclusion of facts the. court found that said road was established according to the agreement set up in defendant’s answer. That by said agreement Gabriel Simon and Babette Simon, through whom the defendants derive title, for a valuable consideration sold and granted to the persons from whom the plaintiffs derive title, their heirs and assigns forever, the right of way over the private road described by plaintiff, which was to be thirty feet in width and running from Linwood, or Observatory road, north to a road opened by plaintiff, Frenkel, north of the Simon tract; Gabriel and Babette Simon hereby reserving unto themselves, their heirs and assigns, the right of passing and repassing through said road at all times by night and day; said road to be kept in repair by the parties to the agreement, their heirs and assigns, in proportion stated in said agreement.

That said road was to be strictly a private road to be used only by the Simons and the plaintiffs and their heirs and assigns, and not to be changed in any respect, nor shall any person or persons, whomsoever, be allowed the use of said road at any time, either directly or indirectly, unless by the joint consent of the parties hereto, their heirs or assigns.

That ornamental trees should be planted on each side, twenty feet apart, and maintained at an agreed proportional price by the parties. That two patent self-opening and closing gates shall be erected, one at each end of the road, Frenkel and Newburg, their heirs and assigns, to pay for the upper one and keep it in good repair, and Gabriel and Babette Simon, and their heirs and assigns, for the lower one and keep the same in good repair. Said agreement was entered into February 25, 1868.

The court further finds that since said agreement said road has been improved, shade trees placed at intervals its entire length, and was at the time defendants acquired title, July 10, 1886, partially enclosed along the sides thereof, running north and south, by a fence.

2d. That at the time of the above .agreement, Linwood road or Observatory road was the southern terminus of the right of way, and the entrance thereto was closed by the parties to said agreement with a patent self-opening and closing gate, the property now owned by defendants being then owned by the grantor, Babette Simon, to the center of said private way. A self-opening and closing gate was also erected on the north end of said private road, the property then owned by plaintiffs; that defendants were at the time of the commencement of the suit the owners of property on the east side of the right of way, fronting on Observatory road and extending back 535.92 feet to within 100 feet south of what is now known as Erie avenue, and could then only obtain access to their property from Observatory road, or over the right of way on the private road, and that then it was used by plaintiffs and Babette Simon to get access to and from their property.

That defendants derive their title by deed of July 10, 1889, which did not convey the right of way, but conveyed the and above described “with all its privileges and appurtenances.” That paintiff, Sachs, obtained his title to the right of way from Nathaniel Newburg by deed June, 1891, conveying the right of way in terms.

4th. That Erie avenue, a public county road, was constructed by the Commissioners of Hamilton county, in 1891, taking a strip of land eighty feet long and thirty feet wide, after plaintiff acquired title, and is now used as a public road, and said private way opens at Erie avenue, and tbe public traveled on said private way to Observatory road until plaintiff, by agreement of all parties except defendants, 'Cordes and Cresap, closed access by placing gates at Erie avenue and Observatory road, and locking the gates.

5th. That defendants have taken away part of the fences which enclosed said right of way on the sides thereof, and have removed the gate at Erie avenue, and have kept the gate at Observatory road open after plaintiff had restored it, and will not permit him to keep the same closed and locked.

That defendants have platted their land into lots,on which said private way is marked as ‘‘Simon avenue,” and also a street called ’“Newburg avenue,’’leading west to said 'private way and into another street east called Josephine street, connecting Observatory road with said right of way, and 'have distributed plats, and have offered same for sale, and invited the public to come on the premises for further information, and that they, their servants, employes and the public are constantly using said private way.

And as conclusions of law on the facts above found, decide:

1. That the plaintiffs and defendants, their heirs and assigns, are entitled to use all of the right of way as described under No. 1 of the finding of facts, but strictly as a private road to be used only by the parties aforesaid and their assigns, and said road to be maintained and improved as'descrioed in No. 1, the expense to be borne as specified in said •agreement, except Cordes and Cresap, who are to pay one-eighth .

2. That plaintiffs are entitled to and have the legal right—

(a.) To maintain and keep a gate at the intersection of said private road with Observatory road, and to keep the same closed with a latch or hook.

(b.) To keep said private road along' its entire length where the property of the parties,other than the defendants, Oordes and Oresap, and assigns, abuts thereon, wholly enclosed by good and substantial fences.

(c.) To maintain and keep a gate at the intersection of said private road and Newburg avenue, said gate to be kept closed by the plaintiffs by means of a lock or latch.

3. The plaintiffs are not entitled to keep closed with lock or key the gate at the intersection of the private road and Observatory road, or to maintain a gate of any kind at the present intersection of said private road with Brie avenue on the south side of said Erie avenue, but at the said point said private way is to remain open. The court thereupon adjudged that Oordes and Oresap, their servants, agents and employes, be perpetually enjoined from causing to be kept open the gate at thfe intersection of said private road with Newburg avenue, when said gate is placed thereat; or from interfering with the construction and maintenance of the same; from causing, procuring or inviting the public to enter upon, travel and pass over said right of way; from continuing further to claim or assert a right to use this right of way as a means of affording the public ingress or egress-from Observatory road, over any other street or streets, whether by printed plats, auction advertisements, or sale, or any other way, and plaintiffs are enjoined perpetually from keeping or maintaining a gate of any kind at the intersection of said private road with Erie avenue, or from locking gate at Observatory road and Newburg avenue, but may fasten the same by latch or hook; and the court ordered the costs to be paid one-half by plaintiff and the other by Cordes. and Oresap,

In the application by the court of the law to the facts found, we think there were several errors.

In the second point, subdivision (a), the court decides that the plaintiffs are entitled to maintain and keep a gate at the intersection of said private road with the Linwood road and Observatory road, and to keep the same closed by a latch or hook.

The court having found that the agreement of February 15th, 1868, was the contract between the parties, there is no authority for closing a gate on said premises by hook or latch. The kind of gate provided for in the contract at each end of said road was a patent self-opening and self-closing gate, and such a gate would not require a person in a vehicle to get out and open or close the gate, while a gate hooked or latched would require it.

We think the court erred in subdivision (b.) of their second opinion, that the plaintiffs are entitled to have the legal right to keep said private road, along its entire length, where the property of the parties other than the defendants Cordes and Cresap and assigns, abuts thereon, -wholly enclosed by good and substantial fences. There is no authority for such a ruling either in the contract between the parties, or in the finding of facts by the court. The only fact found by the court was, that the private way has since 1868, and was when defendants Cordes and Cresap ■ obtained title in 1889, partially enclosed along the side thereof running north and south by a fence. How much of the sides was partially enclosed, nor upon whose land along the sides thereof running north and south, by a fence, does not appear by the finding of facts.

The contract provides, that the said road is to remain strictly a private road, and the same is not to be changed or altered in any respect, and that trees shall be planted along the.road twenty feet apart, and not to be removed unless by mutual consent of the parties. The road is to be laid out and to be kept in good repair, but this does not require either party to erect fences along the line of the road in front of his own property, nor would the fact that some one has, since 1868, partially enclosed his land along said road by a fence, authorize the court to compel any one of the abutting owners to erect and maintain a fence.

Burch & Johnson, attorneys for plaintiff. ' ■

Coppock & Gallagher, attorneys for defendants.

We think the court was right in their first conclusion of law that the plaintiffs, defendants, their heirs and assigns, are each entitled to the use of the right of why in said road as a private road.

We have heretofore held in the case of the Methodist Protestant Church of Cincinnati against Laws, 7 Circuit Court Reports, 211, that where an easement is granted in a private road to a party owning abutting lands, his heirs or assigns, it inures to the benefit of all the heirs and assigns, however many there may be, and into however many parcels the abutting land may be subdivided and inherited or assigned.

The judgment of the superior court will therefore be reversed in so far as it directs the maintaining of a gate at Observatory road different from that in the agreement of the parties, and also in requiring the fence to be erected and maintained along said private way.

No. 1 and No. 8 of the finding of law by the court are affirmed except as to the last clause, which authorizes the plaintiff to have the gate at Observatory road fastened by a hook or latch. The only gate authorized at said point is a “patent self-opening and closing” one.

The judgment of thedower court will therefore be affirmed in part and reversed in part, according to the views herein expressed. Costs in this court to be divided equally between plaintiffs and Cordes and Cresap,