text:
    FORFEITURES — MUNICIPAL CORPORATIONS. ■
    [Lucas (6th) Circuit Court,
    October 3, 1903.]
    Parker, Hull and Haynes, JJ.
    Toledo v. Toledo Railway & Light Co.
    1. The Facts Stated.
    A street railway grant provided that the road should be built and in operation within six months from the time the city had completed certain grading; otherwise all rights and privileges thereby granted should be forfeited. A large part of the road was built and put in' operation. Ten years later the city caused the stipulated grading to be done, which was immediately accepted and paid for. During the winter months following the “fill” thus made settled from six inches to one foot. It was leveled up, and the construction of the road begun, when work was stopped by the mayor and police on the ground that the time limit had expired, and suit was brought to enjoin further work and forfeit the franchise as to this part of the route. Held:

    2. COMPLETION OF GRADING DATES FROM WHAT TIME.
    (1) That the completion of the grading contemplated by the ordinance granting the franchise should date, not from the acceptance of and payment for the work, but from the date of its being put in such condition that a street railway could safely be built upon it.
    3. Forfeiture Strictly Construed — No Partial Forfeiture of Franchise.
    (2) The rule requiring that forfeitures be strictly construed against those for whose benefit they are provided, together with the entire failure of the city to show that any damages have been suffered by reason of the delay, and the further fact that if any part of the franchise is to be forfeited, it must be forfeited as a whole, including the portion of the road which was built ten years before the city did the stipulated grading, forbids the granting of the relief asked.
    4. Suit for Forfeiture of Franchise Must be Based Upon Determination by. Council That it Should be Declared.
    (3) Moreover a suit for the forfeiture of such a franchise will not lie, unless based upon a determination by the city council that a forfeiture should be declared.
    Appeal from the court of common pleas of Lucas county.
    U. G. Denman, city solicitor, for plaintiff.
    Smith & Baker, for defendant:
    The universal rule in Ohio is that courts proceed with great caution in matters of forfeiture. If a contract is fairly subject to the interpretation, that upon the happening of a default it should be enforced and not forfeited, it receives that interpretation. Watterson v. Ury, 3 Circ. Dec. 171 (5 R. 347, 355) ; Hornback v. Railway Co. 20 Ohio St. 81, 88; Webster v. Insurance Co. 53 Ohio St. 558 [42 N. E. Rep. 546; 30 L. R. A. 719] ; Chicago City Ry. Co. v. People, 73 Ill. 541, 549.
    And we believe in every case where the question has arisen, the courts have required the street railway company to perform the contracts of the ordinance under which it was acting, irrespective of the severity of the terms of forfeiture contained in such ordinance. Columbus v. Railway Co. 45 Ohio St. 98, 104 [12 N. E. Rep. 651],
    Where the conditions of the ordinance do ,not clearly appear to be conditions precedent, they will be regarded as conditions subsequent. State v. Boyce, 43 Ohio St. 46 [1 N. E. Rep. 217],
    The law strictly construes provisions working forfeitures. Such statutes are to reach no further in meaning than their words; no person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused. Only those transactions are covered bjr them which are within both their spirit and their letter. State v. Boyce, 43 Ohio St. 46, 50 [1 N. E. Rep. 217].
    We believe a mere technical violation of a condition subsequent in an ordinance involving no substantial loss or injury is never construed to be a cause of forfeiture. People v. Railway Co. 125 N. Y. 513 [26 N. E. Rep. 622] ; Chicago City Ry. Co. v. People, 73 Ill. 541, 549.
    A court of equity will not take the place of the city council and both create and enforce the forfeiture. When a condition subsequent is contained in an ordinance and the street railway company has violated its terms and the proper legislative power of the city has elected to avail itself of the right to declare a forfeiture, then and not till then will, a court of equity declare that a forfeiture exists and decree its enforcement. Hamilton St. Ry. Elec. Co. v. Electric Transit Co. 3 Circ. Dec. 158 (5 R. 319, 323).
    City authorities may waive the forfeiture of a franchise, and an abutting owner cannot be permitted to enjoin the exercise of the franchise, and thus prevent the city from executing its right of waiver. Barney v. Railway Co. 11 Re. 880 (30 Bull. 286).
    The ordinance would seem to vest in the village the power to act and remove the tracks from the street if the council concluded that the conditions had not been complied with. Stewart v. Ashtabula, 13 O. F. D. 307, 312; New Orleans, C. & L. Ry. Co. v. New Orleans, 44 La; Ann. 748, 751'[11 So. Rep. 77] ; Hodges v. Railway Co. 58 Md. 603, 605, 623.
    At no time did this ordinance become void and no act of the street railway company alone could make it so, and the right still remains in the city of Toledo, if it sees fit, to require the defendant company to perform its part of the agreements of this ordinance. The city solicitor has no power to take this right from the city, and before this court can declare that a forfeiture exists, there must be some evidence that the proper legislative authority of the city has elected not to enforce the ordinance as against the street railway company, but to declare it null and void. Pol-wen v. Railway Co. 8 Am. Ry. Corp. Rep. 419.
   HULL, J.

This action comes into this court on appeal. It was brought by the city of Toledo to enjoin the defendant from constructing a piece of railroad track, about a quarter of a mile long, on Central avenue, in this city, and to have declared a forfeiture of all the rights, franchises and privileges of the street railway company in that street for the purpose of building, maintaining and operating a street railroad. The claim of the plaintiff is, as set forth in the petition, that on December 14, 1901, the common .council of the city of Toledo passed an ordinance giving and granting to The Metropolitan Street Railway Company, its successors or assigns (of which the defendant in this action is the successor), the right to construct, maintain and operate the same over Central avenue from Cherry street to the westerly limits of the city of Toledo, being a distance of about one mile, and running between Cherry street and Collingwood avenue a portion of the way.

The ordinance, as set forth in the petition, required that the street railway company should complete the construction of the street railroad and have it in operation by September 1, 1902; but it contained further provision that the city of Toledo was to grade and fill in that portion of the route that lay between Cherry street and Collingwood avenue — which was lower than the grade line, there being a ravine at that point which it was necessary to fill in and grade before the street railroad could be properly constructed. And it is set forth in the petition that the ordinance provided that the city was to do this work of filling in and grading Central avenue, and that if the city did not complete the work of grading and filling in within the time limited, to wit, by September 1, 1902, the time limit for the building of the street railroad, then that the railroad should be built and its operation commenced within six months after the city completed the filling and grading of this portion of the route. And the petition sets forth and complains that the street railway company did not build its track on this part of the route lying between Cherry street and Col-lingwood avenue, within six months after the city had completed its filling in and grading, but that on July 1, 1901, it had commenced the work of laying its tracks and building a street railroad over this part of its route, the petition alleging that the city had completed its work of filling in and grading more than six months prior to July 1, 1901, and therefore, it is claimed by the city in its petition that the street railway company has forfeited all of its rights and franchises in this portion of the route lying between Cherry street and Collingwood avenue, and the petition asks that such forfeiture be declared and asks that the street railway company be enjoined from building and constructing said railroad at that point.

The ordinance passed by the city of Toledo oa December 14, 1891, contained substantially the provisions set forth in the petition, and, that I may be exact, I will quote from the ordinance this provision:

“Section 4. The work of the construction of said extension of said street railway shall be under the direction of the city civil engineer and shall be commenced as soon as practicable after the passage of this ordinance and shall be completed and in operation on or before September 1, 1892; provided, that work thereon shall not be required until after said Central avenue is graded to the established grade between Cherry street and Collingwood avenue, and in case the same is not graded and the road herein authorized to be constructed is not completed within the date named, then said extension shall be constructed and put in operation within six months from the completion of said grading.”

And Sec. 6 of said ordinance provides:

“Section 6. If said company, its successors or assigns, shall fail or refuse to compfy with the conditions of this ordinance or with an ordinance entitled 'An ordinance to grant to The Metropolitan Street Railway Company the right to reconstruct its tracks and extend its charter,’ passed March 11,1889, or the general ordinances of the city of Toledo, regulating the operation of street railways, and amendments existing or hereafter made thereto, so far as the same are applicable and not inconsistent with the conditions of this ordinance, the rights and privileges hereby granted shall be deemed forfeited and the city of Toledo shall have the right to reenter and take possession of the same to the exclusion of said company. Passed December 14, 1891.”

The grading of this portion of the street was not done by the city for nearly ten years after the passage of the ordinance, but was let by contract in the year 1901, and the work was accepted by the city council on November 11, 1901, by formal resolution of the council and the contractor ordered paid. So that more than six months had expired from the time this work was accepted by the city when the street railway company began its work of constructing the street railroad on this part of the route, to wit, on or about July 7 in the following year (1902). It is claimed by the city that on account of this failure to comply with this provision, of the ordinance, that the whole of this road or route (about ono mile in length) should be completed and in operation within six months after this filling and grading had been done, that all of the company’s rights as to this 'part of the road have been forfeited.

It is claimed by the defense that this is not true as a matter of law or fact; and further, that no forfeiture has ever been declared by the city; also as a matter of fact, notwithstanding its acceptance by the council,, that this work of filling and grading was not done by the city and finished and completed within six months before the commencement of this work by the railway company. Evidence was offered, both by the city and by the defendant.

It seems that prior to July, 1902, the street railway company had built and completed and had under operation about three-fourths of this entire route — about three-quarters of a mile. The company had not waited for the city 'to do this filling and grading before commencing the building of the street railroad, and, within probably six months after the "ordinance was passed, the entire route, as contemplated by this ordinance, had been built, except that portion which could not be built on account of the condition of this grading, and cars had been maintained and operated upon this portion of the road for nearly ten years before this grading was done by the city. After the grading had been completed and finished, which the railway company claims was in fact early in the spring of 1002, the company, in the fore part of July, commenced the' work of building the street railway at this point, but were stopped by the mayor of the city and the police, and the work of building a railroad there was prevented by policemen on the ground, for a period of about ten days, until this action was commenced by the city solicitor, to have determined in a court of equity the rights of the respective parties.

An issue of fact, then, in the case is, whether tire city had finished and completed its work of filling and grading as contemplated by this ordinance, more than six months before the work was commenced by the street railway company over this part of the route ?

Several witnesses were called by the plaintiff, and some by the defendant. The assistant city engineer, Mr. Ridenour, was called by the city, and testified that it was necessary after such work as this had been done that it be given considerable time to settle before it would be feasible to lay a pavement upon the street, or to build a street railroad upon it. This grading was accepted by the city in November, 1901. He testified that, as a rule, they gave some six months for settling before they did such a thing as to pave a street, and that it, should be allowed an entire winter for settling, in his judgment, and that before a street railroad should be built there should be a solid substructure.

Mr. Miller, who was an inspector, in the employ of the city during a portion of the time that this grading was going on, testified that he saw it in the spring of 1902; that there were holes in it, and that it had settled in spots. It was shown on the part of the defense that complaints were made by some of the citizens who resided upon the line of the street that the grading had not been properly done.

Mr. Sheehan, the contractor, who did the work for the city, was called as a witness and testified that he filled in with almost anything that he could get — Band, quicksand, and the roots of trees, rubbish, street sweepings and anything that would fill a hole; that when the engineer, or the proper officer, pronounced the work up to grade it was accepted by the council and he got his pay, but that the grading had no sooner got up to the grade line than it began to settle and it settled from one foot to two feet at various places during the winter months, and he testified that it was a usual and ordinary thing for such work to settle in the six months that follow the doing of the work so that it was necessary to go on It again and bring it up to the grade line, and he testified that the street commissioner did work upon this street during the winter, filling it up here and there as it settled; and, after it load been accepted by the council, he testified that he went back and filled in at places and did work in that way in the latter part of November; and he says that the commissioner filled in some late in the winter; that it had settled at the sewer connection points, and he says that the street was at that time below grade probably from six inches to fifteen inches at different places, and that in the spring of that year it was from six inches to one foot below grade.

There was other testimony on this question, and we find that the overwhelming weight of the evidence is that this work of grading in question was not completed and finished as contemplated by this ordinance until the spring of 1902, a short time before this work was commenced by the street railroad company.

• The acceptance of the work by the city council, by resolution, and the direction to pay the contractor, would not bind the street railway company, the other party to the contract made by the ordinance. The ordinance imposed upon the city the duty and the burden of filling this in to the grade line and completing it, and it gave the street railway company the privilege of waiting six months after that filling was completed or waiting so long as they pleased, so that the railroad was completed and in operation within six months after the grading was finished by the city, the ordinance providing:

“That work thereon shall not be required until after said Central avenue is graded to the established grade between Cherry street and Col-lingwood avenue, and in case the same is not graded and the road herein authorized is not completed within the date named, then said extension shall be constructed and put in operation within six months after the completion of said grading.”

We hold that that language in the ordinance requiring the city to complete this grading, means that it shall be in fact completed — not that it shall be accepted by the city council, but that it shall be put in such condition as that it would be proper and safe to build a street railroad upon it. This was part of the work which the city was to perform in the construction of this improvement and means' of travel in the city and for which the street railway company had been given this grant by the ordinance. The city was required to do this filling in such a way that it would be safe and practicable to construct a street railroad upon it, and when the filling was done with quicksand and roots and street sweepings and with any rubbish, as the contractor testified, that he could get, the city had not finished the work as contemplated by the ordinance, and it began to settle immediately and settled from six inches to a foot and two feet, in different places, as shown by the evidence. It was conclusively shown that this part of the street on Central avenue between Cherry street and Collingwood avenue was not in a fit condition to build and construct a railroad upon in the fall or winter of 1901, 1902, and it was not in such condition until the spring of 1902, a very short time before the work of building the railroad w^s commenced by the street railway company.

To warrant a court in declaring a forfeiture of the rights and privileges granted to a company under an ordinance of this kind, the evidence must be clear and conclusive that the company has violated the provisions of the ordinance in such a manner as to warrant a forfeiture; a court would not forfeit the privileges so granted or take from the company the right to build and finish building a street railroad upon any doubtful case. The authorities upon this question are numerous.

It should be noted that the city does not ask for the forfeiture of this entire grant and of the rights and privileges extending along this entire route, but only of a portion of the line. There is no provision in the ordinance for a forfeiture of a portion of the grant — the only provision is for a forfeiture of all the rights and franchises. The city has.no authority, under this ordinance, to select such á portion of the route as it sees fit and ask to have a forfeiture declared upon it; if it is entitled to a forfeiture, it is for all. Provisions of forfeiture are to be strictly construed, and have been from time immemorial — from Shy lock’s case and before down to the present time.

There is no provision in the ordinance for a partial forfeiture. Forfeitures are not favored by courts, and especially where it appears that the provision of forfeiture is put into a contract, agreement or franchise only to secure the performance of the work; and forfeiture of the property or of the rights of a person, natural or artificial, because of a slight failure to perform all the provisions of the contract, is not favored by the courts, and where compensation may be had in lieu of forfeiture, a court of equity will grant that instead. As the Supreme Court of this state has said in Union Central Life Ins. Co. v. Bernard, 33 Ohio St. 459:

“Forfeitures are odious, and there must be no cast of management or trickery to intrap a party into a forfeiture.”

And in Webster v. Insurance Co. 53 Ohio St. 558 [42 N. E. Rep. 546 ; 30 L. R. A. 719] :

“Provisions for forfeitures are to receive, where the intent is doubtful, a strict construction against those for whose benefit they are introduced.
“If it be left in doubt, in view of the terms of the instrument and the relation of the contracting parties, whether given words were used in an enlarged or a restricted sense, other things being equal, that construction will be adopted which is most beneficial to the promisee.”

And on page 563 of the opinion:

“Relief against forfeitures is matter of equitable cognizance, but rules applicable to the subject are resorted to in courts of law, and there seems no good reason why the principles which govern courts of equity should not he available in a suit at law where the facts make such cognizance necessary to the ends of justice.
“A primal rule is that forfeitures are not favored either in equity or at law; indeed, it is declared as a universal rule that courts of equity will not lend their aid to enforce a forfeiture. Following as a corollary from this, provisions for forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced.”

It has been held by some courts that where there is in an ordinance a condition precedent, where something is required to be done before a right can vest, that the courts cannot relieve against that. But it has been held by the Supreme Court of this state that a condition of the kind involved here is to be regarded as a condition subsequent. Tire right to build the road was vested in the company when the ordinance was passed; it had built its road upon three-quarters of the route and was operating it; and this condition should be regarded as a condition subsequent. The Supreme Court say in State v. Boyce, 43 Ohio St. 46 [1 N. E. Rep. 217] :

“Where the conditions of the ordinance do not clearly appear to be conditions precedent, they will be regarded as conditions subsequent.”

No action has ever been taken by the city council to declare a forfeiture, or by ally other .duly authorized officer of the city. Tlie city never complained that the railway company had not completed this part of t'he work within the time limit until this suit was commented, and not then until after the work was stopped by the mayor and police force. The city council has never authorized or directed the city solicitor to commence this action and ask that a forfeiture be declared. Whether the city solicitor had authority to begin such an action without a resolution passed by the city council we need not now determine, but I speak of this fact as in line with what I have said — that the city has not done anything to indicate a desire for the forfeiture of these rights of the railway company. In State v. Boyce, 43 Ohio St. 46 [1 N. E. Rep. 217], the court say, on page 52 :

“The solicitor is a public officer eletted by the people, and, when required so to do by resolution of the council he shall prosecute or defend, for and in behalf of the corporation, except in certain cases. Section 1774 Rev. Stat.”

On this question of forfeitures, see 1 Pomeroy, Eq. Jurisp. Sec. 381, where the author says, on page 415:

“The general doctrine was finally settled that, wherever a penalty or forfeiture is inserted merely to secure the payment of money, or the performance of some act, or the enjoyment of some right -or benefit, equity regards such payment, performance, or enjoyment, as the real and principal intent of the instrument, and the penalty or forfeiture as merely an accessory, and will therefore relieve the debtor party from such penalty or forfeiture, whenever the actual damages sustained by the creditor party can be adequately compensated. The application of the principle in such cases, and the relief against penalties or forfeitures, must always depend upon the question whether compensation can or cannot be made.”

In this case there is no complaint that the city is damaged. If it were true that a few weeks had gone by beyond the time limit in the ordinance, there is no claim made that the city has been damaged in the slightest respect by this failure on the part of the street railway company to complete this work within the exact time limit. There is no complaint made by any citizen of the city of Toledo that he has been damaged. No one is requesting that any officer of the city, the city solicitor' or the council, or any other body or officer, go into court and ask to have a forfeiture declared. The purpose and object of the city council and the railway company in entering into this contract by ordinance was to have a railroad built in'the streets of the city for the benefit of the street railroad company and also of the people of the city, in order that they might have additional transportation facilities throughout the city. The purpose was not to get hold of and destroy the property of the street railway company, and the fact that the road was not completed exactly within the time fixed, if that were true, does not materially affect the rights of the city or damage in any appreciable amount the city or any of,the citizens thereof. The city had delayed for ten years the completion of this work of grading. The street railway company had built the rest of the road between nine and ten years before they were required to build it and it would be clearly contrary to both law and equity and a violation of the fundamental principles of right and justice to declare a forfeiture of this small portion of the route on the ground that it was not completed within the exact time fixed in the ordinance.

A case in Illinois is in point (Chicago City Ry. Co. v. People, 73 Ill. 541), where the supreme court of Illinois say:

“Where a railway company was authorized by its charter to construct and maintain a railway in a certain part of the city of Chicago, over and along such streets, etc., as the common council had or might authorize, in such manner and upon such terms and conditions as the common council had or might 'contract with the company, and, bv ordinance of the city, license was given to lay a single track along a certain street half the way within the time required: Held, that the common council had the right and power to waive the condition as to the time for completing the same, it being a provision in favor of the city to secure the public interests.”

And on page 549 of the opinion, the court say:

“Courts proceed with great caution in proceedings which have for their object the forfeiture of corporate franchises. It is not every nonperformance of the condition in the act of incorporation, or every misuser, that will forfeit the grant. A substantial performance according to the intent of the charter is all that is required.”

■ And another case upon the proposition that the city had the power to waive this provision of the ordinance is found in Hamilton St. Ry. & Elec. Co. v. Transit Co. 3 Circ. Dec. 158, 159 (5 R. 319). The opinion was rendered by Judge Smith, in which, speaking for the court, he said:

“Nor do we think that we should in this case, at the instance of the defendants, determine or adjudicate, whether for any reason the plaintiff company has forfeited the right given to it by the ordinance, to construct and operate its road. This also, in the first instance, is a matter for the consideration and decision of the city council, which (if the forfeiture has occurred) may insist upon, or waive it.”

As I have said in this case, there has been no act of the council looking towards a forfeiture of this franchise. The question is still open whether the city desires to forfeit it, and before the property of the railroad company is declared forfeited and taken from it and its tracks torn from the streets, the company has a right to be heard before the council.

I will cite a case, Stewart v. Ashtabula, 13 O. F. D. 307, 312 [98 Fed. Rep. 516], opinion by Judge Taft:

“The ordinance would seem to vest in the village the power to act, and remove the tracks from the streets, if the council concluded that the conditions had not been complied with.”

It seems to us very clear that the city council is the proper body to determine whether the city desires that these rights and privileges shall be forfeited, or. not, or whether a slight failure on the part of the street railroad company in the matter of time in doing this work shall be waived. We are very clear that under the evidence offered here no court of equity would declare a forfeiture of these rights or enjoin the street railroad company from building and constructing its road upon this street. On the contrary, we find from the evidence in the case that the street railroad company has complied with the conditions imposed upon it; that it commenced the work within the time fixed and was proceeding properly and in order and according to law to fulfill its part of the ordinance when it was stopped.

The petition of the plaintiff will be dismissed at its cost, and injunction denied.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    NEGLIGENCE.
    [Cuyahoga (8th) Circuit Court,
    December 24, 1903.]
    Hale, Marvin and Winch, JJ.
    Greeley Brothers Co. v. Stanislas Zeithaml.
    Master not Chargeable with Knowledge of Teamster as to Dangerous Condition of Premise's.
    The rule that one responsible for a dangerous condition is chargeable with the injurious consequences arising therefrom has no application where the dangerous condition was unknown to such person and could not by any degree of care have been discovered. Hence, a company engaged in removing filth from a city’s streets into a vacant lot, heretofore used for several years as a playground for children without'objection, is ,not charged with actual or constructive notice that a trash heap thereon is on fire, notwithstanding trash was deposited on such lot twice a day by a teamster in its employ. The fact that the teamster had actual knowledge that smoke was arising from the heap, which was also noticed by others in the neighborhood, is not such notice to the company as to render it liable for injuries sustained by a child, accustomed to play in the lot, climbing upon such trash heap and, by reason of its being undermined, falling into the fire, there being no proof that any officer of such company had knowledge of, or was where he could have seen, the smoke, or had reason to anticipate that the same would get on fire.
    ErroR to the court of common pleas.
    White, Johnson, McCaslin & Cannon, for plaintiff in erroi.
    To land & Howell, for defendant* in error.
   MARVIN, J.

Suit was brought-in the court of common pleas by the defendant in 'error through a next friend. The plaintiff below,' Stanislas Zeithaml, was about seven years old when the injuries complained of in his petition were received. The parties will be spoken of in this opinion as they were in the original action.

In the summer of 1900 the defendant, a corporation, was engaged with teams and proper appliances in removing filth and debris from certain streets of the city of Cleveland, and, by some arrangement with the owner-, was depositing the material collected from the streets upon a vacant lot at the southeast corner of Cedar and East Madison avenues. This field 'contained several acres, was unenclosed, and was bounded on two sides by :the public streets airead)' named. Across this field from the northeast 'to the southwest corner was a well-beaten footpath over which, for several years, pedestrians had been accustomed to pass without any let or hindrance,, in very considerable numbers, and the field was a common playground for the children in the vicinity, and had been so for a series of. years. This fact was so universal that it must have been known to the owner and to the officers of the defendant.

Prior to the time of the injuries complained of the defendant had deposited of this refuse material taken from the streets a large amount; making a heap of considerable height and dimensions. This was immediately adjoining the pathway already referred to. For several days, probably not less than five and perhaps as much as a week before the accident complained of, this pile had been on fire. It was a smouldering fire, and seems to have been altogether covered up by the stuff of which .the pile was constituted, deposits being made to the amount of at least two wagon loads daily. This smouldering fire sometimes sent forth smoke in consirl erable quantities so that it was noticed in the neighborhood, but, as already said, the fire itself was not visible, and smoke was emitted so as to be noticeable only a part of the time. Some of the time there was no appearance whatever of smoke.

On July 6, 1900, the plaintiff and other children, his companions, were playing on this lot, and while engaged in play went upon the top of this heap, the surface of which had been so undermined by the fire that it broke through and let the plaintiff into the smouldering fire, whereby he was burned and injured. The suit was brought to recover damages for such injuries, and resulted in a verdict for the plaintiff. A motion was made to set aside the .verdict and grant a new trial, which was overruled, and judgment was entered upon the verdict.

Complaint is made by the defendant that there was error in the charge of the court, to its prejudice. The charge has been examined with care, and we think was as favorable as the defendant was entitled to.

Complaint is further made that the court erred in overruling the motion for a new trial, upon' the ground that' the verdict was not sustained by sufficient evidence. It is urged that there is no evidence to show that the defendant set the rubbish on fire, or that it had any knowledge that there was any fire in that heap; that it had no reason to anticipate a fire, and, therefore, cannot be held responsible for the injuries received from such fire.

On the other hand it is urged that whether the defendant set the fire or not, the fact that smoke was emitted from the heap during a part of the time, and that the teamsters in charge of the wagons of the defendant deposited rubbish at least twice a day upon the heap was sufficient to charge the defendant with constructive notice of the condition of'this pile of rubbish. Attention is called to authorities to the effect that one being responsible for a dangerous condition is chargeable with the consequences of such condition, and it is urged that the cases apply to the case now under consideration.

One of the cases noted is that of Penso v. McCormick, 125 Ind. 116 [25 N. E. Rep. 156, 157; 9 L. R. A. 313]. The syllabus of that case reads:

“Where the proprietors of a sawmill situated in the public part of a town, near to a public highway, had by their knowledge and acquiescence given license to children of tender years to use their uninclosed lot surrounding the mill as a playground, and without any warning to them or others, constructed a pitfall in the ground where such children were accustomed to play, which they filled with, burning embers and which gave forth no signs of its condition, or the danger in stepping upon its covering, and while in this condition a child of tender years entered upon it, as he was accustomed to do, without any knowledge of its changed condition, and was severely burned and injured, they were liable under such circumstances to respond in damages. Greater care must be exercised in dealing with children of tender years than with older persons who have reached the age of discretion.”

The fact in this case, as stated by the court in the opinion, 'is, that the mill yard was a place where children were accustomed to play. That fact was well known to the mill owners and acquiesced in by them for a long period, and that “without any notice or warning, the appellees (mill owners), on the day of the injury, had excavated a hole or pit in one side' of the heap or mound, and refilled it with hot and burning coals, embers and cinders, the top of which immediately cooled, and gave no .signs of any change in the condition of the mound, or any warning of danger to those who had been accustomed to pass over or play upon the mound.” The court in this case quoted with approval from the case of Young v. Harvey, 16 Ind. 314, 315, this language, speaking of the right of one to recover for injuries sustained by a pitfall left unguarded in an open hole which the public were, by acquiescence on the part of the owner, permitted to use it as a common:

“Whether it can be, or not, depends upon the degree of probability there was that such accident might happen from thus leaving exposed the partially dug well, considered, perhaps, in connection with the usefulness of the act or thing causing the danger. If the probability was so strong as to make it the duty of the owner of the lot, as a member of the community, to guard that community from the danger to which the pit exposed its,members, in person and property, he is liable to an action for loss occurring through his neglect to perform that duty.”

In Harriman v. Railway Co. 45 Ohio St. 11 [12 N. E. Rep. 451], this language is used in the syllabus:

“Where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its road at a given point, without objection or hindrance, it should, in the operation of its . trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to persons so using its road.”

In this case suit was brought for injuries to a boy about ten years of age who was upon the right of way of the defendant at a place where the public had been so long accustomed, with the knowledge and acquiescence of the railway company, to cross said right of way that the same amounted to a license to the public. A torpedo was left upon the track carelessly and negligently, and where there was no occasion for it to be. It was, to all appearance, entirely harmless, whereas in fact it was a very dangerous thing to handle. This was picked up by a boy about the age of plaintiff and exhibited by him to the plaintiff, and they undertook to open it, which caused its explosion and the injury to the plaintiff, and it was held that-such facts entitled the plaintiff to a recovery.

The case of Findlay Brewing Co. v. Bellman, 4 Circ. Dec. 22 (9 R. 277), shows this state of facts : The brewing company placed in the street at the side of the brewery building a tank sixteen feet in length, three feet ten inches high and some four feet wide, into which it was accustomed to convey by a spout the hot “mash” from its brewing tubs, from whence it was taken, when cool, by a party to whom the company had sold the same. A boy six j^ears of age went with another boy to this tank, and they got upon the edge of the box or tank to see the “mash” run into it. This boy, six years old, slipped into the hot “mash” and was injured. It was there held that the company was liable.

None of these cases seem to us to go to the extent of sustaining the verdict in the case under consideration. In each one of- the cases the dangerous condition which brought about the injuries complained of was known, or by any kind of care wotild have been known to the defendant.

In Findlay Brewing Co. v. Bellman, supra, the brewing company knew of the fact of hot mash being stored in this tank, and that it was at the side of the public highway; that it would be natural for children to be climbing up its sides and that they would be likely to fall into the scalding matter and be injured.

In Harriman v. Railway Co. supra, the railroad company, by its servants, placed the dangerous instrument at a point where children were accustomed to be with its acquiescence. They knew that the torpedo was highly dangerous and that there was nothing to indicate its dangerous character to an inexperienced child.

In Penso v. McCormick, supra, the defendants themselves placed the burning material in a place dangerous to children whom thew knew were accustomed to play there.

In the case of Ann Arbor Ry. Co. v. Kinz, (58 Ohio St. 210, this language is used in the syllabus:

“The owner of an uninclosed tract of land within a city, which has been graded to a level, leaving a bank on one side of the premises, to which premises adults are not invited, but suffered to resort for the purpose of playing base ball, which amusement attracts to the ground and along the bank young boys to witness the games, is not liable for injury to one of such boys, caused by the caving or falling of the top of the embankment, where its condition does not, to the knowledge of such owner, indicate a reasonable probability of such result.”

In the opinion in this case Judge Price makes use of this language, page 223:

“We think the better and more reasonable proposition is, that the owner of the property owes no general duty to keep it in condition which will insure the safety of persons who go upon it without invitation or license; yet if he keeps upon his premises, dangerous machinery, or other things likely to attract children, and does not guard them to prevent injuries to them, he is liable for injuries resulting from his neglect to provide such guards. One of the reasons assigned for this rule by some authorities is that the keeping on the premises a machine or other thing which naturally entices the very young and curious, and thus attracts their presence, may be construed as an implied invitation to.enter the premises so occupied by the dangerous machine or other device, in which case it becomes the duty of the owner to see that the person thus invited is not jplgiced in peril.
“But it is not our duty to pursue these various cases and authorities as they meet or diverge, for we have no case here calling for such labor. The facts before us show no secret dangers, traps, or pitfalls, and the premises were not in a dangerous condition; nor did the owner place or maintain thereon any object or thing to attract the young and unwary.” See, also, Erickson v. Railway Co. 82 Minn. 60 [84 N. W. Rep. 462].

In Shearman & Redfield, Negligence Sec. 705, this language is used, and seems to us to state clearly the'law as it ought to be:

“The owner of land, where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary care to keep it in a safe condition, for they, being without judgment, and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers and mere licensees. And yet merely allowing children to play upon a vacant lot is held not to amount to an invitation which creates liability for its condition.”

In this case it cannot be supposed that the defendant would anticipate the fire which brought about the injuries to the plaintiff, and that being 'true, it cannot be held liable unless it had either actual or .constructive notice that such fire was in progress. We find nothing in the evidence which can fairly be held to be such notice. No officer of the company saw, so far as it appears, any smoke arising from this heap, or was where he would be likely to see it. The teamsters working for the defendant may be said to have probably seen at some time the smoke arising from this heap, but we know of no rule of law which would make the knowledge of such employe either actual or constructive notice to his employer. We hold, therefore, that there was error on the part of the court in overruling the motion for a new trial, on the ground that the verdict was not sustained by sufficient evidence. The judgment of the court below is reversed and the case remanded to that court.


text:
    EVIDENCE — MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    December 24, 1903.]
    Hale, Marvin and Winch, JJ.
    Julia Payne v. Cleveland (City).
    1. Rule of Police Department Requiring Policemen to Report Defects in Sidewalk Competent Evidence, When.
    A rule of a police department, regularly and properly adopted, that policemen shall note “all coal holes being left open * * * and shall make report thereof” is competent evidence, in an action against the city for personal injuries sustained by reason of the fact that a coal hole in a sidewalk of the city was insecurely fastened, as tending to show that if this fact came'to the knowledge of a police- . man it was by him duly reported to some one having authority to remedy the matter.
    2. Knowledge of Policeman of Defect in Sidewalk Chargeable to City, When.
    In an action against a city for damages on account of personal injuries, sustained by a fall into a coal hole in a sidewalk because the top thereof had been fastened insecurely, testimony offered for the purpose of proving that sometime prior to the accident the attention of a policeman was called, by a similar accident, to the defective condition of the same cover, and that the owner of the building, or some person connected with it, notified him that he could not repair it, is competent, because, under these circumstances, as it was the duty of the policeman to repo-t to the proper officer the defect in the cover and the inability of the owner to put it in safe condition, the knowledge of the policeman is the knowledge of the city, and the city is bound thereby.
    ERROR to the court of common pleas.
    F. A. Beecher, Kerruish, Chapman & Kerruish, for plaintiff in error.
    Newton D. Baker et al., for defendant in error.
   MARVIN, J.

Julia Payne brought her action against the city of Cleveland to recover damages for injuries sustained by her from falling into a coal hole in the sidewalk on Pearl street near the corner of Bridge and Pearl streets in said city, by stepping onto the cover of said hole, which thereupon slipped in such wise as to leave said coal hole open. This was on June 25, 1895. The hole was in front of a brick block owned by one Henry Heil. The excavation under the sidewalk vías made by said ITeil under permission granted for that purpose by the city. The covering over said coal hole was an iron plate, and it is charged in the petition that said hole so covered was at the time of the injury to the plaintiff a public nuisance in that the cover thereto had become and was worn, and loose in the rim surrounding it, whereby said cover had become ill-fitting and insecure, and that by reason of the shallowness of the rim around said hole into which said worn and loose cover was allowed to rest it had become easily liable to displacement when trodden upon, and was therefore highly dangerous and unsafe for persons along said sidewalk unless securely fastened from beneath, and that said cover was and for more than a month prior to the injury to the plaintiff had been wholly unfastened, unguarded and insecure, and that such condition of insecurity was at the time of the accident and for a long time prior thereto well known to said city and its officers, and wholly unknown to said plaintiff.

The defendant answered by a general denial, and further by an allegation that if the plaintiff was injured at the time and place charged in the petition said injury was contributed to by her own negligence.

Upon the trial of the’ case, at the close of the plaintiff’s evidence, the defendant moved for an order directing the jury to return a verdict for the defendant, which was granted. This action of the court is complained of by the plaintiff in error, as well as certain rulings upon the introduction of evidence.

A bill of exceptions is filed here containing all the evidence introduced on the trial. From this it appears that the injury to the plaintiff occurred between three and four o’clock on the afternoon of June 25, 1895; that the sidewalk in front of the Heil building, where this injury occurred, was a broad flagstone walk; that there were five manholes in front of said building opening into coal vaults beneath; that Pearl street is a principal street of the city, and used very extensively by pedestrians and vehicles; that as the plaintiff was walking along the sidewalk she stepped on the cover of this manhole, which immediately tilted and slipped out of place, whereby she dropped into the coal hole, catching upon her arms on the cover and sidewalk, but was unable to extricate herself and was helped out of this perilous position by two men. Her injuries were very considerable. There is nothing in the evidence tending to show any negligence on the part of Mrs. Payne. The evidence tended to show that, though there was a chain suspended from the unde; side of this cover, there was no weight attached to such chain, The fact that the cover tilted and slipped by her stepping upon it certainly tended to show that it was insecure .and in an unsafe condition at the time of the accident, and the fact, which was testified to by witnesses, that another woman fell into this hole under similar circumstances on June 15, 1895, and still another on May 20 of the same year tended tó show that this unsafe condition had existed for a considerable time. It is true that the fact of the covering being removed temporarily on each of these days for the purpose of putting in coal or for some other purpose and not immediately secured after ■being again placed over the hole might not be such negligence in the manner of protecting this sidewalk as would make the city liable, because the city might presume that the weight to be attached to the chain would be immediately so attached; but if the fact was known to the city that these two previous accidents had occurred within so short a time, and if the city was further notified that the owner had not or could not or did not intend to remedy the defect, then we think the city would clearly be liable for any accident resulting from this dangerous condition of the coal hole. But where the injured party was without fault, it is claimed that no notice of such previous accidents or of the fact that the owner did not immediately after each accident properly fasten the cover is shown by the evidence.

It appears by the fifth page of the bill of exceptions that while Mrs. Pauli, a witness for the plaintiff, was being examined, she testified to having fallen into this same hole on or about June 15, of the same year, about ten days before the plaintiff’s accident occurred. She stepped onto this same cover, when it slipped and left the hole open so that her foot went into the hole, and she was prevented from falling by catching upon the sidewalk and being helped up by her daughter and another friend; that at the time of her accident a policeman of the cit)^ saw her and immediately talked with her about it. She was then asked to state the conversation she had with that policeman. This was objected to by the city and the objection sustained and a proper exception taken. Counsel for the plaintiff then stated that if the witness was permitted to answer he expected her to say that she told the policeman that she had just stepped upon the cover of that coal hole; that the cover was not fastened or secured in any manner; that it tipped up and slipped out of place, and she fell into the coal hole; that thereupon the policeman went into the store in front of which was this coal hole, and a-man came out and was shown the coal hole with the cover off, by the policeman, arid was told by the policeman that he must fasten or secure it, and the man then told the policeman that he could not fasten or secure it because the fastening was broken. The court then said to the jury, upon request of counsel for the city, that all that this witness had testified to in connection with a policeman should be disregarded by the jury, so that the ruling of the court was that the notice given to the policeman on or about June 15 of the condition of this opening in the .sidewalk and the fact that the policeman immediately communicated that condition to some one there connected with the property and that the policeman was then informed that it was claimed by this man that the covering could not be safety fastened because the chain was broken, was'wholly incompetent.

Before the evidence to which attention has just been called was offered, there had been offered in evidence on the part of the plaintiff a rule of the police force of the city of Cleveland, and it was conceded by counsel for the defendant at the time that said rule was one of the rules and regulations of the police force of the city of Cleveland, and that it was in force ■on June 25, 1895. Said rule, speaking of policemen, reads :

“He shall note all street and sidewalk obstructions, all defects therein from which accidents may occur, removing them when practicable and •when necessary, and when no light is furnished place a good and sufficient light so that obstructions can be plainly seen; all premises for which temporary permits are granted for building or when openings or excavations are being made and not suffer them to be continued without the proper permits being granted authorizing the same, and shall cause suitable accommodations to be provided for the public travel; all coal holes being-left, exposed or unsecured, all street lamps not lighted at proper times or too early extinguished, when not clean or not giving sufficient light, all wooden buildings erected contrary to law or any building defectively built or becoming unsafe, or where any noisome, dangerous or unwholesome trade is carried on, and all nuisances or violation of the laws, ordinances and all othei matters relating to the safety, health and convenience of the public or to the interests of the city, and in all cases of complaint by citizens with residence * * * shall make report thereof.”

To the introduction of this rule the defendant objected and the objection was sustained, to which a proper exception was taken.

As to the introduction of this rule, it is rirged, among other things, that no evidence was offered tending to show that this rule was adopted or approved by the city council of the city of Cleveland, and that the council alone has the power to constitute a police officer an agent of the city for the purpose specified in said rule. It is admitted, however, that the department itself has the authority to prescribe rules for the government of the department and to lay down duties for the different members of the force to perform. It having been admitted that this rule was one of the rules and regulations of the police force of the city of .Cleveland in force on the day when the accident to the plaintiff occurred, we think there was no1 occasion to inquire by whom that rule was adopted. It is a sufficient showing that it was adopted by the proper authority when the admission above referred to was made by the city. We think, therefore, that the court erred in excluding this rule. Its admission would have tended to show that whatever fact came to the knowledge of the policeman was by him reported to some authority that had the power to remedy the difficulty, for surely the presumption is, in the absence of any evidence to the contrary, that the policeman did his duty, and the requirement of the rule that he should make report must mean that he should make report to somebody who had some authority in the matter, otherwise such -requirement would be absolutely a vain thing. '

As against the argument that the city, if it had notice of what occurred to Mrs. Pauli on June 15, might rely upon the performance by the property owner of the duty imposed upon him of immediately making said covering secure, it seems clear that the fact-which the plaintiff offered to show, that either the owner'of the building or some person connected with such building notified the policeman that he could not repair it, would be sufficient to require some action on the part of the city to make this place safe.

Attention is called by the defendant in error to the case of Chase v. Cleveland, 44 Ohio St. 505 [9 N. E. Rep. 225], That was a case brought against the city to recover for an injury received b)? falling- upon a slippery sidewalk. The syllabus reads:

“In a suit against a municipal corporation to recover for injuries occasioned by falling upon a slippery sidewalk, allegations in the petition which aver that the defendant is a city of the first class; that the street where the accident occurred is a public highway within the corporate limits ; that upon a sidewalk in front of property of a private owner, the city negligently suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason dangerous to those passing along it, and to so remain for some days, of which condition the city had or might have informed itself in time to have made the sidewalk safe before the accident, are not sufficient to show negligence.”

In the opinion, announced by Judge Spear, page 513, attention is called to the fact' that the petition is very indefinite in charging that the dangerous condition of the walk had continued for a number of days. “The terms, £a number of days,’ and ‘some days’ may mean two days, or more. Neither necessarily indicates a greater number than two.”

He says, speaking of this allegation as to the length of time, that they are “clearly insufficient to show notice to the city. So that the plaintiff is remitted, as to this essential element, to the allegation that it was possible for the city to have obtained the information. We do not understand that a city is bound at all hazards to have knowledge of defects in sidewalks. Municipal corporations are not insurers of the safety of their public ways, or of the lives and limbs of pedestrians. The law -provides that such corporations shall have the care, supervision, and control of the streets', and shall cause them to be kept open and in repair, and free from nuisance. This requires a reasonable vigilance, in view of all the surroundings, and does not exact that which is impracticable. * * * They are not bound to use all possible vigilance in inspection or in obtaining information.” It does not appear that this language in any wise tends to aid the defendant in error here.

The probability of the situation of the street rendered unsafe by snow and ice becoming known to the authorities immediately is, as Judge Spear seems to think, not probable, and he says that to give the city notice of all such unsafe places “would require a large special force involving enormous expense; * * *. Such duties do not naturally fall within the province of the.police force.”

This ■ doctrine does not seem inconsistent with the proposition that knowledge of such condition of the sidewalk as was shown in that case would not be knowledge of the city, but only that the police force would not be likely to know of ali such conditions of the walk because it is not their province to look for such conditions.

In the case of Western College v. Cleveland, 12 Ohio St. 375, which 'was a suit brought by the college against the city to recover for loss sustained to the plaintiff's property by the violence of a mob which was not suppressed by the police, the opinion, by Judge Gholson, is to the effect that the city is not responsible because pi the failure on the part of the police force to perform its duty in suppressing a riot. We are unable to see that there is anything in the case which implies that knowledge brought to the police is not knowledge brought to the city.

The case of Wheeler v. Cincinnati, 19 Ohio St. 19, simply holds that the failure on the part of the city to provide necessary agencies for extinguishing fires does not render the city liable for damage caused by such fires, nor does the negligence of those connected with the fire department render the city so liable.

We are unable to see that this in any wise tends to show that the city is not bound by the knowledge of its police officers. It is not sought here to charge the city for the failure on the part of the police officer to repair this sidewalk, but only to hold the city for its failure to repair the walk when knowledge of its dangerous condition was brought home to the officer whose duty it was, by a rule of the department, to communicate such knowledge to the proper officers; but with this rule, we are inclined to think that the city was bound by the knowledge of the policeman.

In support of this attention is called to the case of Denver v. Dean, 10 Colo. 375 [16 Pac. Rep. 30, 31; 3 Am. St. Rep. 594]. This was a suit brought by Dean for injuries sustained by stepping upon the covering of a coal hole in the sidewalk in the city of Denver. The chief of police of the city knew of the defect several months before the accident happened and had notified and instructed the tenants to have the defect cured. He had also mentioned it to the policeman stationed on that beat. Upon the trial the court instructed the jury:

“That the knowledge, concerning- defects like the one in question, of" the police of the city is not actual notice to the corporation; that such knowledge, if gained in pursuance of the officer’s duties and appointment, may be the means of knowledge, so as to charge the municipality with constructive notice.”

The supreme court of Colorado, in passing upon this, says:

“In our judgment both propositions are wrong. Whether a certain matter is in the line of a particular officer’s employment, is to be determined by construction of the statute or ordinance prescribing his duties; hence such determination is a question of law. Without discussion, but not without careful examination, we are prepared to hold that the ordinance before us sufficiently charges the chief of police with the care of coal holes and caps, as well as other obstructions, in or upon the sidewalks. Hence the court below should have instructed the jury that, if the officer had' personal knowledge of the defective cap, the city should be charged with actual notice.”

From this it is evident that the ordinance of the city prescribing the duties of policemen was admitted in evidence, and that the Supreme Court considered that as proper evidence in the case. This, as we think, bears directly upon the question of the admissibility of the rules of the police department in evidence.

In the case of Rehberg v. New York (Mayor), 91 N. Y. 137, it was held that notice to a policeman of an unlawful obstruction in the street was notice to the city.

In the case of Goodfellow v. New York (Mayor), 100 N. Y. 15, where there was an obstruction upon a crosswalk and where there was an ordinance of the city requiring policemen on duty to inspect crosswalks, and the policeman had inspected, but testified that he observed nothing dangerous, and made no report, it was held that these facts were sufficient to charge the city with notice of the defect.

We, therefore, reach the conclusion that the court erred in excluding the rule of the police force offered in evidence; that it erred in excluding testimony as to what was said tó and by the policeman who knew of the injury to Mrs. Pauli, and in directing the jury to return a verdict for the defendant, and for these errors the judgment of the court of common pleas is reversed and the case is remanded to that court for a new trial.


author: COOK, J.

text:
    MARSHALING LIENS — ASSIGNMENT—CORPORATION.'
    [Monroe (7th) Circuit Court,
    April Term, 1903.]
    Laubie, Cook and Burrows, JJ.
    Keystone Bank of Pittsburgh v. Union Oil Co. et al.
    1. Lien of Foreign Deed of Assignment Prior to an Unrecorded Transfer of Interest in Oil Leasehold.
    A deed of assignment duly executed under the laws of the state- of Pennsylvania by a corporation of that state, conveying. all its real and personal property to a trustee for the benefit of all its creditors and duly recorded in this state, is a prior lien upon the working interest of the corporation in oil wells, property, and production, situated upon and arising out of an oil leasehold within this state, to that of a prior transfer made in writing by the corporation to parties within that 'state to secure an existing indebtedness of the grantor and not left for record until after the record of the deed of assignment; the creditor holding such transfer not being/ in the actual and open possession of such leasehold at the time of the execution and recording of such deed of assignment.
    2. Power of Majority of Stockholders of Corporation to Make Deed of Assignment.
    The stockholders ‘of an insolvent corporation, at a meeting regularly called for that purpose, may authorize and direct the transfer of all its property to a trustee for the benefit of all its creditors, when at such meeting a large majority of its stock is represented; and an assignment made in pursuance of such authority and direction will be upheld; the minority stockholders having full opportunity to do so, making no objection thereto.
    3. Distridution of Fund in What Forum.
    In an action for the sale of properly situated within this state, conveyed by a deed of assignment for the benefit creditors made in a foreign state, for the marshaling of liens, and for the distribution of The proceeds of sale (in which action the assignee is a party and a receiver is appointed who makes sale of the property), the fund arising from such sale will not be delivered to- the assignee appointed in the foreign state, but the receiver will be directed to disburse the same.
    Appeal from common pleas court of Monroe county.
    Mallory & Sears, for plaintiff:
    The assignment'under which The Equitable Trust Company claims was made in Pennsylvania, and was to be administered in that state and in pursuance to its laws. The property in question being an interest in lands, not personalty, did not pass under said assignment to the assignee. McCullough v. Rodrick, 2 Ohio 234, 235; Rodgers v. Allen, 3 Ohio 488.
    The assignee took the estate, if any, subject to all legal claims or ■equities then existing against the assignor. The deed of assignment was the voluntary act of the assignor, conveying nothing to the assignee as a purchaser. Such is the law of assignments in both the states of Pennsylvania and Ohio. Fulton’s Estate, 51 Pa. St. 204; Brown v. Devitt, 131 Pa. St. 455 [19 Atl. Rep. 80] ; Mills v. Ritter, 197 Pa. St. 353,. 356 [47 Atl. Rep. 194] ; Trickett, Assignments Secs. 114,116 ; Hodgson v. Barrett, 33 Ohio St. 63 [31 Am. Rep. 527]; Morgan v. Kinney, 38 Ohio St. 610; Mannix v. Purcell, 46 Ohio St. 102, 135 [19 N. E. Rep. 572; 2 L. R. A. 753; 15 Am. St. Rep. 562] ; Potter v. Gilbert, 177 Pa. St. 159 [35 Atl. Rep. 597; 35 L. R. A.'580].
    The Supreme Court in Betz v. Snyder, 48 Ohio St. 492 [28 N. E. Rep. 234; 13 L. R. A. 235], did not attempt to distinguish or reverse the holdings of the court in the cases of Hodgson v. Barrett, 33 Ohio St. 63 [31 Am. Rep. 527] ; Morgan v. Kinney, 38 Ohio St. CIO, and Mannix v. Purcell, 46 Ohio St. 102, 135 [19 N. E. Rep. 572; 2 L. R. A. 753; 15 Am. St. Rep. 562], but was content to dispose of the case before it by a simple construction of the recording acts of the state of Ohio.
    An assignee for creditors takes subject to all liens, equities and in-cumbrances existing at the time of the assignment and is not regarded in equity as a bona fide purchaser without notice. Morgan v. Kinney, 38 Ohio St. 610, 613; Hodgson v. Barrett, 33 Ohio St. 63; Mannix v. Purcell, 46 Ohio St. 102, 135 [19 N. E. Rep. 572; 2 L. R. A. 753; 15 Am. St. Rep. 562] ; Burrill, Assignments (3 ed.) Sec. 391.
    The fact that a portion of the property assigned was situated in Ohio would not change the rule, ‘'that the rights of the parties, and the nature, validity, interpretation and effect of the contract, are to be governed by the lex loci contractus.” 3 Am. .& Eng. Enc. Law (1 ed.) 514, 514 and notes; Wharton, Conflict of Laws Sec. 369.
    Assuming that we must look to the law-of Pennsylvania in order to determine the legal effect of assignments and the estate and interest taken by the assignee thereunder, what is the law of that jurisdiction? Potter v. Gilbert, 177 Pa. St. 159, 168 [35 Atl. Rep. 597; 35 L. R. A. 580] ; Trickett, Assignments Secs. 114, 115, 116; Mills v. Ritter, 197 Pa.'St. 353, 356 [47 Atl. Rep. 194] ; Fulton’s Estate, 51 Pa. St. 204.
    An intention on the part of The Union Oil Company to assign and transfer the property to plaintiff as a security, and to charge the property with the payment of the debt is sufficiently* indicated, and independent of our recording acts, creates an equitable lien against the property in favor of plaintiff for the amount of its debt. Moeser v. Schneider, 158 Pa. St. 412 [27 Atl. Rep. 1088]; 3 Pomeroy, Equity Secs. 373, 380, 1235.
    The claim that Sec. 4112a Rev. Stat. applies in this case, can only be made upon the theory that The Equitable Trust Company is a purchaser for value. We have been able to find but one case in which the legal effect of a transfer of all the oil (as in this case) has been before the court for adjudication. Ervin v. Masterman, 8 Circ. Dec. 516 (16 R, 62).
    The law of Pennsylvania requires that when an assignee named in a deed of assignment is removed by the court for cause, the court may appoint another person as trustee, but before such appointment can be made, notice, must be given to the assignor. This notice is jurisdictional, and without it the court has no power to act. Trickett, Assignments Sec. 112, 126.
    An assignee for the benefit of creditors is affected by any existing trusts and equities against the assignor.” Garrison’s Appeal, 2 Grant Cas. (Pa.) 216; Brightly’s Digest Sec. 193, p. 115.
    Underwood & Ludey and Hamilton & Matz, for defendant.
   COOK, J.

The plaintiff, The Keystone Bank of Pittsburgh, is a corporation located at Pittsburgh, state of Pennsylvania, and the defendant, The Union Oil Company, is a corporation with its principal office in the same city.

The Union Oil Company was the owner of an oil and gas lease upon the premises of J.' W. Martin, situated in Washington township, this county, and had, drilled and was operating a number of oil wells upon such leasehold. Its working interest was three-fourths of the oil, Martin receiving the other one-fourth as royalty.

On August 27, 1900, the oil company had become indebted to The Keystone Bank for money loaned it in drilling and running its wells in the sum of $15,000; $2,500 of said amount being advanced on that date; and it was then agreed between the bank and oil company, that its line of credit should be further extended to the sum of $20,000, the oil company to transfer to it as security its interest in the leasehold premises; the following memorandum of agreement being entered into:

“Pittsburgh, Pennsylvania, August 27, 1900.
“To The Buckeye Pipe Line Company, Maclcsburg Division.
“We have this day sold three-fourths W. I. wells Nos. 1 and up on J. W. Martin farm, Washington township, Monroe county, state of Ohio, as below:
“Three-fourths interest Keystone Bank No. 13 account, Pittsburgh,. Pa. You will therefore transfer their credit on your books. Pipe Line Tanks Nos. 10227-10228.
“Union Oil Company,
“S. B. Forst, President.”
“The assignee above named hereby certifies and agrees that it is the legal owner of the well interest above transferred, and authorizes The Buckeye Pipe Line Company, until further notice, to receive oil for trans-< portation and storage pursuant to above transfer.
“Keystone Bank,
“W. H. Nimick, Vice President.”

On October 17, 1900, The Union Oil Company having become insolvent, at Pittsburgh, Pennsylvania, made a general deed of assignment to Morris Forst, its vice president and secretary, of all .its property for the benefit of all its creditors. This deed of assignment was duly executed under all the formalities necessary in the state of Pennsylvania, to convey real or personal property; it was delivered to the trustee, Morris Forst, and by him left for record with the recorder of this county on October 20, 1900, and was duly recorded in the records of deeds in his office. The deed is in the ordinary form of deeds of assignment generally used in this state, and provides that the trustee shall reduce all the property to money, and after payment of costs and expenses, divide the residue equally among all the creditors of the oil company.

After the execution and record of the deed of assignment, the trustee, Morris Forst, was removed by the common pleas court of Allegheny county, Pennsylvania, for his failure to give bond as required by the laws of that state, and The Equitable Trust Company of Pittsburgh was appointed in his place.

The evidence, we think, clearly shows that no possession was taken by The Keystone Bank of the property in this county. Morris Forst still continued to operate the property after the execution of the memorandum of agreement, as he had done before, and he testifies, that after he was appointed trustee in the deed of assignment, he held the property as such trustee until it was turned over to his successor, The Equitable Trust Company, and there is nothing to contradict his testimony.

On June 6, 1901, The Keystone Bank left the memorandum of agreement transferring the leasehold interest of The Union Oil Company to it with the recorder of this county, when it was duly recorded by such recorder, and the hank immediately commenced this action in the common pleas court of this county against The Union Oil Company, The Equitable Trust Company, as assignee of The Union Oil Company, and others, for the purpose of determining the rights of the parties in the property in controversy. In this action a receiver was appointed, and by consent of all parties the property was sold; the money brought into the common pleas court, and the question that is made is as to the manner of its distribution.

The claim of The Keystone Bank is, that the transfer to it by The Union Oil Company by the memorandum of agreement, created an equitable lien upon the property, and further, that The Equitable Trust Company as assignee holds the property under the insolvent laws of the state of Pennsylvania primarily for the benefit of the assignor, and therefore it is estopped from setting up any claim against the equity of the bank, or at least under these circumstances, the equity of the bank is preferable and prior to the equity of the trust company as such assignee.

Many authorities have been referred to in the exhaustive arguments and briefs of counsel for plaintiff, for the purpose of demonstrating, that under the law of Pennsylvania the memorandum of agreement between the bank and oil company 'created an equit}*- in favor of the plaintiff, that it was an equitable assignment of the property from the oil company to the bank, but the question to be determined, as we view it, 'is not what the law of Pennsylvania makes it, but what is its legal effect under the laws of the state of Ohio. The property is situated in this state, and under oúr law oil and gas are a part of the realty, and special provision has been made by statute for the manner of its sale and transfer by.deed or lease.

This agreement on its face purports to be, and the transaction shows, that it was a transfer of the leasehold estate of the oil company to the bank, for the purpose of securing it for money already advanced and to be advanced. It says:

“We have this day sold three-fourths, working interest, wells numbers one and up on J. W. Martin farm, Washington township, Monroe county, state of Ohio.”

In the amended petition filed by the bank and upon which petition the case was tried it avers:

“That in the execution and delivery of the transfer, plaintiff and the said Union Oil Company believed that the same was a sufficient transfer to plaintiff of said wells, property and production, and vested in plaintiff a good and indefeasible title thereto; that it was then the intention of the said Union Oil Company to transfer to plaintiff by said written agreement, all its right, title and interest in said property to be held by plaintiff as security for- said loan of $15,000, and accepted the written agreement aforesaid.”
Section 4112a Rev. Stat. provides:
“That all leases and licenses and assignments thereof,-or of any interest therein heretofore executed, given or made, for, upon, or concerning-any lands or tenements in this state, whereby any right is. given or granted to operate, or to sink or drill wells thereon for natural gas and petroleum or either, or pertaining thereto, shall be recorded in the lease record in the office of-the recorder of the proper comity by the first day of September, 1888, and all such leases, licenses and assignments hereafter executed, given or made, shall be filed for record as aforesaid, forthwith and recorded in said lease record, without delay, and shall not be removed until recorded, and no such lease or license hereafter executed or given, unless the person claiming thereunder is in actual and open possession, shall have any force or validity until the same is filed for record as aforesaid, except as between the parties thereto.”

The remainder of the section provides for actions to cancel oil and gas leases and licenses, and provides that no person shall be necessary parties to such action or to any action involving the same except such as are shown by the lease record to have an interest in the lease, or license, or such as are in the actual and open possession of the premises.

We think this section is controlling as to the legal effect to be given to the agreement between the plaintiff bank and the defendant oil company, and that this agreement had no effect whatever as to third parties until it was filed for record with the recorder of this county.

But if we were in error about the agreement between th.e parties being controlled by this section of the statute, certainly it would be controlled by the provisions of the statute of this state respecting mortgages of real estate and personal property, as the transfer was made as a security, and therefore, under the decision of our Supreme Court, would be a mortgage, and being a mortgage would have no validity until it was duly executed and left for record with the proper officer. Van Thorniley v. Peters, 26 Ohio St. 471 and cases therein cited.

This brings us to the consideration of the question as to the legal effect of the deed of assignment made by The Union Oil Company to Morris Forst.

A large amount of evidence has been introduced for the purpose of showing what the law of the state of Pennsylvania is respecting deeds of assignment under the insolvent laws of that state, and the evidence shows from the decisions of the supreme and other courts and the testimony of competent attorneys learned in the law, that under the insolvent laws of that state the assignee primarily represents the assignor, indeed stands in the place and stead of the assignor, and it is contended with much.force that therefore the assignee cannot contest'the claim of the plaintiff, and that under Sec. 4112a Rev. Stat. the assignee comes under the exception, ‘‘except as between the parties thereto.”

As we view the case, it is a matter of no importance what the law of Pennsylvania is respecting the mode of administering insolvent estates under deeds of assignment for the benefit of creditors. Our courts take no cognizance of the insolvent laws of other states in administering assignments. Assignments made within our own jurisdiction are only administered by our own courts as courts of insolvency. Johnson v. Sharp, 31 Ohio St. 611 [27 Am. Rep. 529] and cases therein cited.

At the same time such deeds will be given full force and effect when properly executed, and, when necessary, recorded in accordance with our registry laws, as conveyance of property, and -a court of equity in this state will enforce the trust created in the deed when the same is not in conflict with the law and policy of the state as to distribution of the property. Johnson v. Sharp, supra; Pendleton v. Galloway, 9 Ohio 178 [34 Am. Dec. 434] ; Wright v. Bank, 59 Ohio St. 80 [51 N. E. Rep. 876],

Under our laws such deeds are ordinary deeds in fee simple to a trustee upon an express trust, and as to property situated in this state will be treated and enforced as such in accordance with the laws of this state.

The case of Wright v. Bank, supra, is very much like.the case under consideration. T. B. Youtsey, of Newport, Kentucky, assigned and transferred his interest in the Hyde Park Syndicate property in Hamilton county, Ohio, to James C. Wright to secure the payment of certain promissory notes. The transfer was made by a simple memorandum to that effect signed by him and of date January 16, 1895. It was neither acknowledged nor recorded. January 21, 1897, T. B. Youtsey still being a resident of Newport, Kentucky, executed a deed of assignment for the benefit of his creditors, to -C. N. Nagle of same city. This deed of assignment was left for record with the recorder of Hamilton county, Ohio, January 22, 1897, and duly recorded, and the controversy was between Wright and Nagle, assignee, as to who held the prior lien and claim upon the interest of Youtsey in the Hyde Park Syndicate property.

In deciding the case the court conceded that the body of the writing of January 16, 1895, signed by Youtsey was sufficient in form to create a lien upon his interest in the sjmdicate property in favor of Wright, but the court says on page ninety-three that:

“The statutes of this state require all instruments in the nature of a mortgage, either legal or equitable, to be signed, acknowledged, witnessed, and recorded; and, until so signed, acknowledged, witnessed, and delivered for record, the same are without effect as to third person.”

And then on page ninety-five as to the deed of assignment:

“The deed of assignment was executed and delivered in the state of Kentucky, where all the parties resided, and conveyed property in Hamilton county, in this state. Such a deed could not be filed with the probate judge, and take effect from the. time of its-delivery to him, as required by Sec. (5335 Rev. Stat. The deed in this case was in -due form, and took effect from the time of its delivery to the assignee. Johnson v. Sharp, 31 Ohio St. 611.”

The court then finds that the circuit court was right in holding and adjudging that Nagle, assignee, had the superior lien.

Another question is made, and that is, that the deed of assignment is not a legal one. This claim is based upon the fafct, that all the stockholders were not present either in person or by proxy at the meeting at which the deed of assignment was directed to be executed. It .is time that the deed purports to convey all the property of every character and description of which The Union Oil Company was possessed, and that, as a general rule, all the property of a corporation can only be conveyed by the assent of all the stockholders. But there are exceptions to this rule.

In 7 Am. & Eng. Enc. Law (2 ed.) 735 it is said:

“Some courts .hold that a majority of the stockholders of a strictly private corporation may- thus sell and convey all of its property, even against the dissent of the minority, when the exigencies of its business render it necessary or expedient to do so.”

Tlje text is supported by a number of cases from different states, especially from Massachusetts.

The business of The Union Oil Company had failed and it had become insolvent. Under such circumstances the corporation should hold its property for the benefit of all its creditors; justice required it should do so. It did only what a court of equity would have compelled it to do upon proper application — distribute its property equally. Furthermore, there were but thirty-five shares of stock out of five hundred that were not represented at the meeting.- The holders of these thirty-five shares never have objected and are not now objecting to the execution of the deed, although they have had ample opportunity to do so. No one connected with the corporation is objecting; the objection alone comes from the plaintiff, who claims the prior lien against the general creditors who are numerous. Every intendment should be in favor of the validity of the deed, which makes an equal distribution of the property. We are not informed as to what the law of the state of Pennsylvania is respecting the transfer of property by a corporation, and therefore we are at liberty to apply the law of our own state, and we do not think that the law of this state requires, under all circumstances, all the stockholders of a corporation to consent before it can convey all its property. Stetson v. Bank, 12 Ohio St. 577; Wiswell v. Congregational Church, 14 Ohio St. 31; United States Rolling Stock Co. v. Railway Co. 34 Ohio St. 450 [32 Am. Rep. 380]; Sec. 5651 Rev. Stat.

One other question is made, and that is, who should control the fund ? The Equitable Trust Company, situated at Pittsburgh, Pennsylvania, the assignee appointed by the court of that state, insists that it should be turned over to it, while the receiver appointed by the common pleas court of this county, as well as a number of creditors of the oil company from this state and also of Pennsylvania, insist that the receiver should control and disburse it, as it will be attended by much less expense. We see no reason to remove the fund from opr own courts. It is doubtful if The Equitable Trust Company has any standing in the case, as we have seen the deed has no effect under the insolvent laws of Pennsylvania. Probably a trustee should have been appointed by the lower court in this, action. Waiving that,"it has no legal right to remove the fund to another jurisdiction ; but as it has been to expense in the litigation it should be reimbursed out of the fund for all such expenses, including reasonable counsel fees.

It is ordered and adjudged that the receiver1: First, pay the costs of the action,«including expenses and reasonable counsel fees, to The Equi-. table Trust Company; second, pay the mechanics’ liens, which are conceded to be a prior lien; third, distribute the residue of the fund to the creditors generally of the Union Oil Company equally, including- the claim of The Keystone Bank, and if there is any surplus after paying the creditors, it be paid over to The Union Oil Company.

Cause is remanded to common pleas court for execution.

If there is any difficulty in arriving at the amounts to be paid each party, which is hardly probable, that court can determine the question.


author: PARKER, J.

text:
    JUDGMENTS — LIENS.
    [Lucas (6th.) Circuit Court,
    October 31, 1903.]
    Haynes, Parker and Hull, JJ.
    Albert V. Bauman et al. v. Edwin D. Goulet et al.
    Priority of Judgment Lien not Lost by Becoming Dormant During Pendency of Action to Which Creditor is Party.
    Where one owning a living judgment, which is a lien on lands, is made a party defendant and enters his appearance in an action to foreclose a mortgage which is an inferior lien upon said lands, the petition in which case contains the averment that such defendant claims some interest in or lien upon said lands, and contains a prayer that he may be required to answer and set up whatever interest or lien he may have or he forever debarred from asserting the same; and also, for a ' marshalling of liens; a foreclosure of plaintiff’s mortgage; a’sale thereunder, etc., the priority of the lien of such judgment is preserved in the proceeds of a sale made in said action, if an answer and cross petition setting the same up and asking appropriate relief touching the same is filed in the case within rule, though it may not be filed until more than five years from the date of such judgment, and no execution has been issued thereon during such period.
    Appeal from court of common pleas of Lucas county.
    W. T. S. O’Hara, for plaintiff.
    Hamilton & Kirby, W. T. S. O’Hara and T. L. Gifford, for defendants.
   PARKER, J.

This case comes into this court by appeal and the question we have to dispose of arises upon a demurrer to the answer and cross-petition of Willard F. Robison. The action of the plaintiffs is to foreclose a mortgage upon certain premises. Willard F. Robison, it appears, recovered a judgment against Henry H. Cushing, who at one time was the owner of these premises, the judgment having been recovered November 15, 1897. Afterward Edwin D. Goulet became the owner of the premises and mortgaged them to the plaintiff. Within five years of the date of the judgment recovered by Robison the petition in foreclosure was filed by the plaintiff. Robison was made a party defendant, and it was averred in the petition with respect to him that he had or claimed a lien upon the premises, to wit:

“Plaintiffs further say that the defendants, Willard F. Robison, A. V. Bauman and E. B. Smith, trustees of the Imperial Savings C'o., and J. H'. Krause claim some interest or liens on the real estate described herein of the exact nature of which these plaintiffs are not advised, but which they say are inferior to the liens of plaintiffs herein; that they, therefore, 'pray that they may be required to answer and set up whatever interest or liens they may severally have in or to the real estate described herein, or be forever barred from asserting the same.”

There is a general prayer for the marshaling of the liens, the foreclosure of the’mortgage, sale of the premises, distribution of the proceeds, etc. As I say, Robison was made a party defendant within five years of the date of the recovery of his judgment against Cushing and „he entered his appearance to the suit, from which it should be assumed, and is assumed by counsel in argument, and will be assumed by us as one of the facts in the case, that he became a party and came into the case to all intents and purposes upon the date that the petition was filed, which was October 20, 1902. He filed his answer and cross-petition upon his judgment upon December 17', 1902 — which was something over five years from the date that he obtained his judgment. A demurrer to his cross-petition is filed by the plaintiff. The contention is, that not having had any execution issued upon his judgment within five years from the time of its recovery — which is one of the conceded facts in the case— and not having filed his cross-petition upon his judgment within five years from its recovery, the lien of the judgment is lost. The statutes bearing upon this subject are as follows: Section 5375 Rev. Stat. provides that a judgment shall be a lien upon the lands of the judgment debtor in the county where the judgment is recovered from the first day of the term at which the judgment is recovered — that is, a judgment of an ordinary character and of the character of the judgment recovered by Robison in this case... Section 5380 Rev. Stat. provides :

“If execution on a judgment rendered in any court of record in this state, of a transcript of which has been filed as provided in Sec. 5377, be not sued out within five years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the time of suing out another execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.”

It is upon the terms of this statute that the plaintiff demurring relies. An important exception has been, as we may .say, engrafted upon the statute by a decision of the Supreme Court in the case of Dempsey v. Bush, 18 Ohio St. 376, and the whole matter is stated in the second proposition of the syllabus:

“In an action to subject mortgaged land to sale, and to ascertain and marshal the liens thereon, a judgment creditor, who was properly made a party while his judgment was alive, will not lose his right to-share in the distribution of the money arising from the sale, by the fact that his judgment became dormant pending the action.”

Now it is conceded by the plaintiff that the rule as broadly stated in that syllabus, if applied to this case would require the overruling of this demurrer; but he insists that that proposition of the syllabus shall be read in the light of the facts in that case and that the rule is too broadly stated; and the particular fact in the case which he insists modifies or qualifies the rule is that in that case a cross-petition upon the judgment lien was filed within five years of the date of the recovery of the judgment, and counsel call attention to- certain utterances of the Supreme Court which seem to give some color to the argument that some of the court at least have regarded the rule as being stated too broadly in this case of Dempsey v. Bush, supra, and have regarded the time 'of the filing of the cross-petition (where a defendant seeks to preserve or enforce his lien), and within five years from date of judgment or execution as an important element necessary to preserve the lien of his judgment. In the case of Fort v. Litmer, 31 Ohio St. 215, 218, Gilmore, J., in delivering the opinion, says with reference to this proposition in Dempsey v. Bush, supra:

“The second proposition of the syllabus in this case is cited by the plaintiffs in error, in support of the motion. Although the language used in this proposition is somewhat broader than was necessary for the decision of the case then before the court, still it is not broad enough to cover the claim of the plaintiff in this case, by any fair construction.”

In Fort v. Litmer, 31 Ohio St. 215, the rule in Dempsey v. Bush, supra, is stated with the qualification that the party shall file his cross-petition before the expiration of the five years, and it is stated as if .that were one of the elements of the rule, whereas it is not so stated in the case of Dempsey v. Bush, supra. Quoting from Fort v. Litmer, supra, page 217:

“In such a case it has been held that a defendant holding a judgment lien, which becomes dormant after the filing of his answer setting it up, will be protected.”

That, of course, is consistent with what is held in the case of Dempsey v. Bush, supra, and consistent with the facts in that case, though it suggests a qualification of the rule as stated in that case. Reading from the opinion of Judge White in Dempsey v. Bush, supra, page 382:

“The land sought to be subjected to sale was, at the commencement of the suit, subject to two mortgages and a large number of judgment liens. By the records, the judgment in favor of Ross’ executors was prior to plaintiff’s mortgage; but, by agreement between the parties, the mortgage was to be first paid. ' In this state of the title, a sale upon execution would not have been an adequate remedy. This could only be afforded in equity, in a suit to which all the lienholders were parties, and where the various liens could be ascertained and marshaled, the property sold discharged of such liens, and the proceeds properly distributed.”

What is said in reference to the state of facts in that case — the result ,of a sale on execution, and the propriety of marshaling liens, etc., — is applicable to the case at bar. Then he proceeds :

“Such is the character of this suit, instituted by the plaintiff as mortgagee to foreclose his mortgage, and to which the judgment creditors are parties; and its prosecution having resulted in a sale of the land, it lias, in equity, performed the same office as respects the judgments, which would have been performed bj^.sale on execution had that form of process been available and resorted to. '
“The object of the suit, from its commencement, was to subject the land to sale for the benefit of the parties; and it would be exacting a vain thing of a judgment creditor to require him,, pending the suit, to make an ineffectual attempt, by execution, to accomplish the object for which the suit was being prosecuted.”

And it is conceded by counsel for plaintiff here that it would be a vain thing to have execution issued; but still it is urged that a party insisting upon and attempting to preserve the lien of his judgment, should do something on his own behalf — should take some active measure and should at least file his cross-petition within the five years which will be an act done by him and which would have the same effect under the rule laid down in Dempsey v. Bush, supra, as having execution issue. That he should not rely upon action taken by somebody else which is .not strictly an action taken in his behalf, an action which, it is urg&d, is in some degree adversary to him; that he should undertake to enforce his own claim; and that if he finds that an execution is impracticable, or would be idle and vain, if an action is begun to marshal liens upon the property, he should within the five years file his answer and cross-bill on his own behalf for relief. But Judge White says in this case, reading further:

“The action is a proceeding in equity to enforce the payment of the judgments and mortgages from the land; and in distributing the money resulting from its prosecution, it seems to us no good reason exists in equity why a judgment creditor, who was properly made a party while his judgment was alive, should lose his right to share in the distribution by the omission to issue execution, which, undef the state of the title, could not have resulted in a sale of the land.
“The nature and object of the suit was the execution and enforcement of the liens of all the parties; and, when properly and. successfully resorted to, it may well be held to supersede the necessity of other modes of execution.”

The. court considers the action of marshaling the liens as an action on behalf of all parties interested in the land, superseding and obviating the necessity for an execution on behalf of any who are to be made parties to the suit — that it is in effect a sort of an equitable execution, taking possession of the property and bringing it to sale for the benefit and in favor of all parties interested; and we think that that is a proper view of the matter, and that is the real kernel in this case. Although as a matter of fact in the case of Dempsey v. Bush, supra, a cross-petition was filed before the five years had expired, whereas in the case at bar it was not filed until after, we think the fact that the cross-petition was not filed herein until afterwards, makes no difference. What the situation of the defendant, Robison, might be if the plaintiff should dismiss the action before Robison had filed his answer and cross-petition, we need not stop to inquire, because that, case has not arisen. — it might put him in a very embarrassing situation — but the plaintiff has not done that; the plaintiff is prosecuting his action and Robison has a right to be heard in the action and to have his liens taken care of.

Entertaining these views, tire demurrer to the cross-petition is overruled.