text:
    (Sixth Circuit, Lucas County, O., Circuit Court.
    Sept. Term, 1896.)
    Before Haynes, Scribner and King JJ.
    WHALEN v. THE STATE OF OHIO.

      Bigamy — Proof of divorce.

    In a prosecution for bigamy, the Ttate having proven the first marriage and produced the first wife in person, or accounted for her existence, the presumption is that the status once established by law continues, and the State is not bound to prove that there was no divorce.

      Bigamy — Letters from accused to first wife, when admissible— Letters from husband to wife strongly tending to prove marriage relation between them, when produced at the trial by a third party, not their agent or representative, to whom they had been given by the wife, will not be privileged under the statute, but are competent evidence against the husband.

      Marriage Certificate — What not admissible as such—

    A writing, alleged to be a marriage certificate, signed by the minister who solemnized the marriage, but not dated nor recorded nor exemplified in any way, nor entitled to be admitted as an ancient document, is inadmissible in evidence in a criminal prosecution.
    Error to the Oourt of Common Pleas of Lucas county.
   King, J.

This is a proceeding in which the judgment of the Court of Common Pleas of Lucas county is sought to be reversed, The plaintiff in error was indicted by the grand jury of this county at its April term, 1896, and the indictment charges that defendant “on the 18th day of April, at the city of Rochester, in the county of Monroe, in the state of New York, did marry one Susan McAvoy, and her the said Susan McAvoy, then and there had for his wife, and that the said Thomas E. Whalen, alias William G. Hanley,afterward, and while he was so married to the said Susan Mc-Avoy as aforesaid, to-wit: on the 2t9h day of April, A. H. 1898, and in the county of Lucas, in the State of Ohio, unlawfully did marry and take to wife one Hattie M. Norman, and to her the said Hattie M. Norman then and there was married the said Thomas E. Whalen, alias William G. Hanley, his former wife being then alive.”

On that indictment Mr. Hanley, as he chooses to be called now, was arraigned, pleaded not guilty, and was tried at the May term, and found guilty of the offense charged, and sentenced to the penitentiary for a period of three years.

It is claimed that conviction was erroneous, and three reasons are assigned: First, that the court erred in holding that the conviction could be sustained without the State having proved on the trial that the defendant and his first wife were not divorced; second, that the court erred on the trial in the admission of certain letters written, and addressed, and sent by the defendant to his first wife; and third, that the court erred in admitting a certain paper writing purporting to be a certificate of his marriage with his first wife. These objections will be considered in their order.

As to the first point: we do not think the State was bound to prove a divorce. The alleged first wife was present in court, and her existence fully accounted for. We do not think that there is any rule requiring the State to prove that a divorce had not been had. In the first place, that knowledge could not be within the possession of the State, and it would be impossible of proof. If such a fact existed, it was easily within the knowledge of defendant; and the rule is well settled that where a fact is not within the knowledge of the State, and peculiarly in the knowledge of the defendant, that the State is not required to show it. We do not think, as it is argued here, that the presumption, of innocence would override any presumption to the contrary. In the condition of things, the woman being accounted for, her being alive; and that admitted or proved, we do not think then any burden is imposed upon the State to show that the status which the law had once established did not continue. If she had been absent and unheard of for any period of time, it is quite likely the burden would devolve upon the State to-show that she was alive — especially if she had been absent and unheard of for seven jears, when a presumption, of course, would arise that she was dead. But the presumption is that the relation which the law once established would continue until shown to the contrary.

On the trial the court permitted certain letters addressed by defendant to his first wife, whom he married, if he married her at all, under the name of Thomas E, Whalen, to be given in evidence. These letters were addressed to Mrs. Thomas E. Whalen on the envelopes, and were signed by him, and they contained expressions indicating that a marriage relation existed between the parties. They were ■evidence strongly tending to show the existence of the marriage relation between them. It is claimed that they were •not admissible because of the statute which prevents the admission of communications between husband and wife. 'There are two statutes, one in the criminal and one in the civil code. It is quite likely the criminal code should' govern. They are substantially alike. By Sec. 7284, it is provided:

“Husband or wife shall not testify concerning any communication made by one to the other, or act done by either in the presence of each other during coverture, unless the ■communication was made,or act done in the known presence or hearing of a third person competent to be a witness, or unless in case of a personal injury by either the husband or wife to the other; and the rule shall be the same if the marital relation has ceased to exist.”

It should be stated that these letters were brought into the court by one George Gilbert, who testified that he held "the position of marshal of Sandusky, and that the letters had been delivered to him voluntarily by the woman who claimed that she was the first wife of Mr. Whalen,

Were these letters within the prohibition of the statute?

We have examined that question, and have come to the conclusion that they were not. It is true that there are many authorities holding that they are within the prohibition of the statute; but then there are others of equal respectability which hold that they are not. One of these will be referred to because it seems not only to be in point, but to give good reason for tbe decision; it is 20 Kansas, 599. That was a criminal case in which the defendant had written a letter to his wife practically confessing the commission of a very serious and grave offense. The statute in Kansas is not materially different from that in Ohio. It prohibits either the husband or wife from testifying concerning any communication made by one to the other during the marriage, whether called while that relation subsisted or afterwards. The statute omits the phrase, “or acts done by either, in the presence of each other.” But both of them, it will be noticed, prohibit the husband or wife from testifying in a case concerning a communication made by one to the other. The court said in this case, on pages 613 and 614:

‘ ‘We shall assume that said letter was a confidential communication from the defendant to his wife; that it is what would ordinarily be called a privileged communicátion, and that it could not have been introduced in evidence in this case or in any other case, by either the husband or the wife, or against either of them, except with the consent of both, so long as the letter remained in the hands or under the control of either of them, or in the hands or under the control of any agent or representative of either of them, We assume this however without desiring to express any opinion upon the subject. And with this assumption, was the said letter wrongfully introduced in evidence? We think not. It would seem that the letter was in the hands and custody of Joseph M. Barney, the prosecuting witness, at the time it was introduced in evidence. It had previously been sent to the post-office, and by mail, from the defendant to his wife. Barney received it from the post office properly directed to defendant’s wife. He delivered it to her, and she, after reading it,returned it to him,and he furnished it to the prosecution to be read in evidence as aforesaid, ”

And this is substantially like the case at bar. The letters were clearly voluntarily in the possession of Mr. Gilbert at the time they were introduced in evidence.

“It does not appear tbat either the defendant or his wife had at that time any control over the letter. It is certainly true, that a communication between husband and wife is a privileged communication. But it is privileged only while it remains within their custody and control or in that of their agents or representatives,and just so far as it remains within the custody and control of themselves or their agents or representatives. ‘A private conversation between husband and wife, who thought that no one overheard them, may be testified to by a concealed listener. ’ This rule only applies as to confidential communications between attorney and client.1 ’

And it is said by Mr. Greenleaf, in the edition quoted in' the opinion — 1 Greenleaf 254a:

“It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they are obtained, whether lawfully or unlawfully; nor will it form an issue to determine that question. ”

And the court proceeds:

“While the civil code provides that neither the husband nor wife shall, as a witness, furnish evidence concerning confidential communications, yet it does not provide that others ‘who may happen to be possessed of such communications shall not do so.”

It is true that when these letters were written they were privileged communications made by the husband to the wife; but the fact that the person made the communication to his wife in writing, rendering it possible for the communication to be preserved, to be used against him if it became necessary, is a fact which he may be presumed to have comprehended when he made that kind of a communication. The statute only provides that the husband or wife shall not testify to communications made by one to the other during the existence of this relation. It does not prevent the introduction of that communication in evidence, nor has that construction generally been put upon the statute. It only prevents these persons from going on the witness stand and divulging it; but if either of these parties divulge these things by giving the written communication to another, or if that communication is disclosed by a robbery of the-mails, or otherwise, and it gets into the hands of a third person, and the issue be raised, it is clear that that third' person may, if he be a witness in the case, offer that communication.

Third: In the course of the trial the State* offered the paper set forth below, first having proved that the writing upon it was in the handwriting of one David Dickey; that at the time when it was alleged in the indictment that this first marriage occurred, David Dickey was a clergyman, residing in the city of Rochester, and that he resided at that time at No. 3, Center Park, in that city; that he lived there for many years, and that he was dead at the time of the trial. And they also proved by the law of New York, that Mr. Dickey, or clergymen like him, were authorized to solemnize marriages. They also offered other statutes, showing that the clergymen, upon the demand of either of the parties, should issue to them a certificate of their marriage, which should set forth certain facts, and that that certificate might be presented to certain officers, and there recorded. It was not. claimed by the State that any record was ever made of this, and it is not shown that one was not made in the city of Rochester and in that county. No evidence is offered upon the subject. It is also contended with reference to the certificate, and practically conceded by the State, that it does not contain those requisites which it should contain in order to be a subject of record. I will read this certificate:.

This certificate witnesseth that Mr. Thomas Whalen, ^Rochester, N Y, and Miss Susie McAvoy, Rochester, N. Y., were, by me, united in marriage at my house in Rochester, N. Y., on the 18th day of April, 1881.

“David Dickey,

“3 Center Park,Rochester, N. Y.”

Then there are blanks for witnesses. A portion of this which I have read is printed upon this card, and a portion is written, and the written part is in the handwriting of David Dickey, as I have said. It is claimed that it was erroneous on the part of the court to admit that paper in evidence. It is practically conceded here that this is not a record. I ■think a complete answer to the question of record is to say, that if it were claimed to be a record,.it must be exemplified in some way, and that proof of.that would be required to be very strict.. That has been held in the case of Naegley v. State, 17 Ohio St., 453, which was a bigamy case, and in which case there was a record offered which the court found to have been attested by the signature of all the parties who were required to sign and seal it, passing through all the various steps. The record purported to have been made at the town of Seibeldingen, in the Pal-, atinate, in the kingdom of Bavaria; but the court held that it was not admissible, because the State had not offered the law in evidence requiring the certificate to be made of record; for that reason they reversed the verdict of guilty in that case.

Some cases are cited in New York, showing that a paper like this would not be admissible as a record, or as an official certificate of this marriage. ' I am inclined to think that those authorities sustain that statement, but I need not read any further, because the 17th Ohio St. settles the question as to its being admissible as a record,

Now then, it becomes the writing of an individual holding an official position, authorized by law to do such an act which it is alleged occurred in 1881,fifteen years age. This certificate is not dated, and it will be observed that there is no evidence in the record showing when it was written, or when it came from the hands of the person who wrote it, or when or how it came into the possession of the alleged first wife. It is not entitled to admission as evidence on the ground that it is an ancient document, for it is not ancient. So, then, it must be admissible, if admissible at all, as it seems to me, and as it seems to the court, as part of the res gesta; that it was an act concurrent with the act of marriage, and, as held in some of the cases, as having been delivered, perhaps,in the presence of the defendant. That is one of the grounds upon which such papers are admitted. But no evidence is offered to show when it was written; and that is a material circumstance to be taken into consideration. The proof shows that this clergyman resided in Rochester from 1860 until the time of his death, which was some years after this marriage and before the trial of this case.

We have examined upon this subject every authority which we could find, and read all of the cases carefully, and while .1 have the books before me, I shall only refer briefly to two or three of the cases cited.

The case which is relied upon by the plaintiff in error, is the case of People v. Lambert, 5 Mich. 349, where it was held that a paper purporting to be a certificate under such circumstances as this could not be admissible in evidence. There were some respects in which that certificate varied from this. The court say—

“A certificate merely signed by the minister,while it may perhaps avail in civil proceedings if properly supported, cannot avail in criminal trials, where the defendant is entitled to confront the witnesses. And this certificate is entitled to no credit for other reasons. It bears no date, and does not either declare where the marriage took place, or show where the minister resided. It does not show, therefore, that he acted within his jurisdiction, or that the marriage took place as charged in the indictment, in New Jersey. And it does not appear to have been made at or near the time of the marriage.”

That it bears no date, and that it does not appear to have been made at or near the time of the marriage, is frue of the certificate in the case at bar.

It is said this is a very old case, and that it is not sustained by the late authorities; but the case cited to us by the attorney for the State, which has not yet gone into the volumes of the Michigan reports — 67 N. W.Rep.821 — distinctly refers to that case, and recognizes the doctrine there stated, and I think fairly approves of it. In that case it was held that a certificate of marriage like that one was admissible, because — the defendant being charged with the commission of adultery — the husband of the woman was called as a witness, and he testified to his marriage with the woman as his wife, and in connection with his testimony was introduced the certificate in question. The court admitted it, and hold that it was properly admissible, because there was proof of the fact of marriage; and they held that the husband was a competent witness — that is, the husband of the woman who was charged with being in pari delicto. They say:—

“In the case of People v. Lambert, 5 Mich. 349, it was held in a case of bigamy that the first marriage could not be established by the confession of the defendant alone, and that the marriage certificate was not admissible to prove it. The marriage certificate mentioned in that case was a foreign certificate, and there were several objections to its admissibility. The admissibility of marriage certificates generally, where accompanied by proof of the identity of the parties, is recognized in the case of People v. Broughton, 49 Mich. 339, and cases cited.”

In a case in 114 N. C. the court came to the same qonelusion on another certificate. In this case it was the certificate of a Rabbi of the city of Riga; and this was also an adultery case,in which Sarah Behrman testified that she was married to the defendant Behrman in Riga, by a Rabbi, on the,25th of December, 1884; that the certificate was given by the court, and was signed by the Rabbi who married her. He put his stamp upon it, she carried it back to the court, and it was there stamped by the court and signed on the day named. • The court say in passing upon that:—

“The appended writing is but the extra-official statement of a private person. At an early period of our national history it was held that the record of a foreign court could not be authenticated by the signature of even an American consul resident in such country, and subsequently a statute was passed which empowered and made it the duty of a consul of this government to keep a record of mairiages celebrated in his presence and send copies to a specified office in this country. If the paper offered is not competent because not properly authenticated as an official record, it was not admissible at all as documentary evidence of the marriage, because, as was said in People v. Lambert, supra, a certificate merely signed by a minister, while perhaps it may avail in civil proceedings if properly supported, cannot avail in criminal cases, where the defendant is entitled to confront his witnesses.

“The defendant was accused of an infamous crime,and in such cases it was said by Pearson, C. J., in State v. Thomas, 64 N. C. 76, that the word “confront” was intended not simply to secure to the defendant “the privilege of examining witnesses in his behalf,” but was “in affirmance of the rule of common law that in trials by jury the witness must be present before the jury and the accused, so that he may be confronted — that is, put face to face.”

Again:—

“But while the paper was not admissible as a record or an independent declaration of the Rabbi, we think it was made pertinent and competent evidence, even in a criminal prosecution,by the testimony of the witness that it was given to her at the very time, of the marriage. While the certificate thus given may tend, when admitted, to support the testimony of the witness to the fact of the marriage, it is competent only as a part of the.res gestae being a declaration made in the presence of the defendant, and accompanying the act of solemnizing the rite, if it did not constitute a part of the ceremony.”

And in Maine is another case — 78 Me. 204 and 209 — in which the court say that such a certificate is admissible in civil cases. In the case before the court there was a question as to the admissibility of such a certificate, or, in case of its loss, oral evidence of its contents. But the court sayr

‘ ‘ It being a settled rule of law that marriage may be proved in civil cases, other than actions for seduction, by reputation, declarations, and conduct of the parties,a paper found in the possession of one of the parties to the alleged marriage, or produced by such party, purporting to be a marriage certificate, is admissible upon the ground that such possession or such a production of it is equivalent to a declaration of such party that the facts stated in the certificate are true. ”

I cite 11 Mass. 92; 1 Cush. 391; 43 Vt. 20; 32 Pa. St. 511; 2 Canada Q. B. 77-80, in which we have substantially the same doctrine laid down. But there is another case that I think important in this connection, to which I desire to-refer here, and that is Gaines v. Relf, decided in the Supreme Court of the United States, reported in 12 Howard, 472. In that ease — which will occur to most people as being the famous case of Myra Clark Gaines — it became necessary-to prove the marriage of certain persons, and a certain certificate from the state of New York was offered in evidence. It was in Latin, but it purported to set out, when translated, that certain parties named were, in July, 1790, united in marriage at a certain church, by William V. O’Brien,pastor of St. Peter’s church, and it was signed in Latin “Gulielmus V. O’Brien,” and evidence was given to show that Mr. O’Brien was pastor of that church, and had been, both before and after the date of the certificate given — from 1784 to 1814 — the certificate being dated in 1790. And considerable evidence was offered that that was his hand writing, and that he was accustomed to write his name “Gulielmus Y. O’Brien,” and that he was accustomed to write all such certificates in Latin. It was also proved that no record of that marriage could be found in the church. So that it brought the case as fully proved as the certificate in this case, The Supreme Court of the United States, in passing upon that, first refer to some discrepancies in the certificate as to the names of the persons who were said to have been married, and then say — :

“But waiving all these objections, and still we think this certificate mere hear-say evidence,and that of a very dangerous character, and this for several reasons. It was given sixteen years after the marriage purports to have taken place, and might just as well have been given, had the priest been alive,forty years after the marriage, and on the eve of the trial.

“In England,by the statute law,copies from parish registers are received to prove marriages; but the paper produced must be a sworn copy of the parish register, and not a certificate of the officiating clergyman; nor will a copy of a foreign register be received in evidence, on proof that it is a true copy.

“If it were allowable in this country to give such certificate in evidence, where every clergyman of all denominations can perform the ceremony of marriage, and where it is performed by justices of the peace in many of the states, it would open a door to frauds that could not be guarded against.

“And then again, certificates of marriage might be produced by those coming to this country from Europe; for no reason exists why a priest in any part of the world should not have accorded to his certificate all the credence that ought to be given to the one here produced, as Louisiana and New York were foreign to each other in 1790.”

Marshall & Fraser and J. K. Hamilton, for Plaintiff in Error.

J. A. Barber, Pros’g. Attorney., for Defendant in Error. ■

There was a certificate as strong as the one here in question, which the Supreme Court very emphatically say would be dangerous to admit in evidence. It is true that this one was not written sixteen years after the date of the alleged marriage; but the record is absolutely silent as to when it was written. So that the reasoning of the Supreme Court in the Gaines case is applicable here, It will be noted that the very ground upon which these paper writings have been admitted in evidence in any case is, that the proof showed that the writing and the delivery of the certificate was an act concurrent with the performance of the marriage ceremony. We have therefore come to the conclusion, after this review of the authorities,that this certificate ought not to have been admitted in evidence in this case. We think the authorities lead irresistibly to that conclusion. It is nothing but the writing of a man, with no proof when it was made or when it was delivered. If he had written it in a letter upon his death-bed, and left it, it would have been as competent as this certificate.

It will be presumed that the admission of any incompetent evidence was prejudicial to the defendant. For the admission of this certificate, the verdict and judgment in this case will be set aside, and a^new trial awarded to this defendant.


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    (Eighth Circuit—Summit Co, O., Circuit Court,
    Sept. Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    SOLON N. WILSON v. C. A. GIFFORD.

      Receiver appointed in other State — Jurisdiction of Ohio Courts o.ver debts owing the estate in Ohio—
    A voluntary conveyance by a party in one state, transfers title and right to his assignee or his transferee, whoever it may be, to his property wherever that property may be found. But if the> conveyance is not voluntary, but is forced, as where creditors put a party in bankruptcy, or where creditors force the property out of the owner’s hands by means of a receiver, in such case the-transfer will not prevent a creditor who lives in another state-from garnishing property situate in the other state, and enforcing his claim upon the same by way of judgment.

      Jurisdiction of U. S. Courts exclusive only loithin boundaries of their jurisdiction—
    The rule is now well settled that where a United States court obtains-jurisdiction over the property of a party by means of a proceeding, instituted by the creditors of such party for the appointment of' a receiver to take possession of his estate, the jurisdiction of' the United States court is exclusive of the state courts only within the boundaries of the jurisdiction of that United States-court. In such case,therefore, where such proceedings are instituted in a U. S. Court in Illinois, the courts of the state of Ohio will not be prohibited from taking jurisdiction of property within this state.

      Attachment by Ohio creditor of claims in Ohio — Prior right as-against receiver appointed in other state—
    To allow a receiver appointed by a court in another state, to come into Ohio to collect the debts due the estate of which he has-become receiver, is purely a matter of comity; and while comity has become a rule of,law to some extent, yet is it not a uniform rule, and the states do not hold the same view in regard to it. Under the rule in Ohio, a party attaching such debts in Ohio by garnishee proceeding instituted in an Ohio court, would secure' prior right to the same as against the right of a receiver appointed by a court of another state.
    Appeal from the Court of Common Pleas of Summit-County.
   Caldwell, J.

The following statement of facts will be sufficient to understand the law questions in the case, and those are the only-questions involved.

There is a corporation in Chicago, in the state of Illinois;, that corporation has a debtor residing at Akron, Ohio; that debt is evidenced by a promissory, note made payable in-Chicago, where the corporation has its residence. The corporation becomes insolvent, its debtors proceed against it; they apply to the United States court and have a receiver appointed. That receiver, it will be admitted, takes possession of all property in the state of Illinois belonging to that corporation.

After the receiver was appointed, but before he takes possession of any property, or of the debt, before hejcollects the debt owing to the corporation by the party living' in Akron, another party in Akron sues the corporation [and garnishees the corporation’s debtor who lives in Akron,— that is, after the receiver is appointed^.

The garnishee answers in that case admitting the debt -to the corporation, and is ordered to pay to the plaintiff in the attachment case. A contest arises between the receiver of the corporation, and the attaching creditor living in Ohio.

Out of these facts arise certain questions of law:

First, how far the doctrine of comity is carried.

It is claimed on behalf of the attaching creditor, that a voluntary conveyance by a party in one state, transfers title and right to his assignee or his transferee, whoever it may be, to his property wherever that property may be found.

That is admitted, and that is the law generally.

Another proposition is,, that if the conveyancers not voluntary, but is forced, as where creditors may put a party in bankruptcy, or where creditors may undertake to force the property out of the hands of this corporation, by means of a receiver, for their payment, that in those instances it does not operate as such a transfer of the property that it will prevent a creditor of that corporation who lives in another state,from garnishing, as in this case, and enforcing the garnishee process by way of judgment upon the same.

That proposition is true, and there is reason for this. .

As to the first proposition, where one party conveys his property by his own voluntary act, he passes by such conveyance the full and complete title to that property, wherever it may be. But in the other case there is no conveyance of property at all,- — no passing of title, except as the creditors are undertaking to fasten upon that property. You may fasten upon property and get a lien upon it by means of a receiver, by means of forcing a debtor into bankruptcy, or into insolvency courts, as you can in many states, or by attachment, and perhaps other ways.

That however is not a complete transfer of the property, but it is only reaching it by process of lawj; and the law prevails generally in the states, — -quite generally, and that is the law of Ohio as we understand it; it has been not positively announced in the 38th Ohio St., but clearly intimated by the court that that is the law of Ohio — that a resident creditor of the state will be protected as to assets of the insolvent in the state, as against a receiver, or against an involuntary bankruptcy proceeding — a receiver appointed in another state.

The second propositiSn of law arising is this. When a federal court acquired jurisdiction of this matter, it prohibited' all other courts form obtaining any jurisdiction over these debts, or over these assets, although they might be in another state.

That rule of law is not well stated. The rule is now well settled, that where a United States court gets jurisdiction in a case of this kind, that that jurisdiction is exclusive of the state courts only within the jurisdiction of that United States court.

That being the rule, as we understand it to be laid down by the courts, it clearly follows that a‘United States court of Illinois, that court’s jurisdiction being limited to a territory that would not include the state of Ohio, does not prohibit the courts of the state of Ohio from taking jurisdiction of this matter.

The third proposition is, that this indebtedness of the debtor residing in Akron, to the corporation, being evidenced by a note, that the situs of that debt is where that note is made payable, or where it is. This note was made payable in Chicago; this note is admitted, to have been in Chicago, and therefore it is held that the situs of this property of this insolvent corporation, so far as this note was concerned, was in the state of Illinois; and that being true, that a complete title of it and the possession of it passed to the receiver, and having passed to the receiver, that we have no right to touch the matter in this state.

If that is the correct proposition of law, then no doubt this attachment must fall, but if it is true that the situs of this debt is not in Illinois, but in Ohio, then such result does not necessarily follow.

That leaves in this case, then, only this one proposition to be considered.

There are cases that hold that the situs of that debt is in Illinois. There are some cases, two in Pennsylvania, and one in 2 Wallace Jr. 131, and another in 17th Pa. St., 91; then there is a case of Gillander v. Howe, 35 New York 657, that hold the doctrine that the situs of that debt is in Illinois, and I need only read from a part of the decision announced by Peckham, J. in the New York case referred to. The case recognizes this distinction between a debt and other personal property; and Speed v. May, and Caskey v. Webster, were declared in that case to be correctly decided upon that distinction.

The court say:

“,A chose in action cannot be said to have any actual situs in the place where the debtor resides; as a general principle, it is payable at the residence of the creditor, if not expressed otherwise, and a tender,to be good, must be made to the creditor. There would seem, therefore, to be no sound basis for the debtor’s state, to legislate exclusively as to the legality of a transfer of that debt, made by a foreign creditor. In such case, as in all others, where the property transferred does not actually lie within the jurisdiction of another government, a sale or a contract, valid where made, is valid everywhere. ’ ’

If the proposition is true in this state, that the situs of that debt was in Illinois, then the reasoning of Judge Peck-ham in that case, as well as the courts in the other cases, must prevail in this.

This matter of allowing a receiver in another state, appointed by a court in another state, to come into Ohio to collect the debts due the debtor’s estate of which he has become receiver, is purely a matter of comity; and comity, as it has grown up, has become a rule of law to some extent, but it is not always a uniform rule of law; the states do not hold the same in regard to it.

The reason for not allowing a receiver to come into a state and collect the debts, where those debts have been attached by persons residing out of the state where the receiver receives his authority, is, that that”property of the debtor has been in the state where a debt has been contracted, relying upon that property as a source of payment of that debt. The creditor who got out his attachment process in Akron, no doubt might have relied upon the fact of the Chicago corporation having property here, and hence it is regarded as equity, that those who have trusted, relying upon definite property, should not have that property carried away from them by other creditors who have not relied upon it and trusted by reason of it, and making the party who has relied upon the property go to another state and present his claim, to take his chances with those who have not been situated as he was.

Where therefore the rights of a citizen of a state are to be thus interfered with, and he is not to be allowed the privilege that the state thinks he ought to have, then the foreign state says to the receiver, no, you cannot take this property away from the creditors who live here, if they have seen fit to seize upon that property; it is inequitable, and there we will cut off this rule of comity.

Is this a case where that rule of comity is to be allowed, or where comity should not obtain?

We will read from Kent’s Commentaries, vol. 2, sec. 407:

“So in Virginia and Kentucky, under their statute laws, all real and personal property within the state, even debts and choses in action, are held, to be bound by the attachment laws of the state, though the owner should execute an instrument in control of it at his domicile abroad. Thp rule of courtesy is held to be overruled by positive law. The law of the locus rei sitae overrules the law of the domicile in this case, and debts due to absentees have so far locality, and are subject to attachment by the creditors of such absentees.”

And Kent cites numerous authorities,

The same doctrine is very fully discussed in Story’s Conflict of Laws, pages 336 and 357, with the same result.

While Peckham, J., says that he knows of no authority holding that the situs of the debt can be changed by an enactment of a state, and that the situs is where the creditor lives, Kent shows that there is a long line of authorities the other way, as well as does Story; and they hold that the, attachment laws of the several states allowing a creditor, as he may do in this state, to garnishee a debt where that debt is evidenced by a note, that he may garnishee the debtor where he resides, where the debt is owing, and may collect that debt. In fact, our courts have gone a long ways in regard to the matter of garnisheeing debts evidenced by promissory notes. They have gone so far as to say that a transfer of the note to any one, which is not bona fide, but in payment of a debt, after the debt has been garnisheed in another state even, does not pass any title that will defeat the garnishee process.

So that the reasoning of these courts is this, that although the rule of comity may extend, yet where the state where the debtor resides has stepped in and said that so far as the law of attachment is concerned, the situs of that debt shall be in the state where the debtor lives; that as to the law of that state, the situs is changed at least, and the situs becomes the place — the state where the debtor lives. It seems, from what I have already said, that this is the rule in some states, but not in other states, although as to the Pennsylvania cases I will say this, that in the 50th Pa. St. 230, that court, held that where the state of Pennsylvania had changed the situs of the debt to be that of Pennsylvania where the debtor lived, that that changed or did away with the comity in such a case, and changed the situs to that of Pennsylvania,

I know it has been said that that did not essentially follow iff the 50th Pa. St. case that I have cited, owing to the pecular facts, but upon the broad ground that if the state where the debtor lives has changed the situs, then as to the law of that state, the situs is where the debtor lives.

We need go only one step farther, and that is to see what our own state has said upon this matter.

In Owen v. Miller, 10 Ohio St., 136, the syllabus is this:

“Where a person then residing in Ohio, sold a tract of land to two persons, also residing in Ohio, and took notes payable to his order, and a mortgage to secure the purchase-money, and then removed to New Jersey, where, under a writ of attachment issued against him as an absconding debtor, the notes were seized and afterwards sold. Held: That the notes were merely evidences of indebtedness, and the seizure of them in New Jersey gave no power to divest the property in the debt secured by the notes and mortgage, which is to be regarded as existing where the makers of the notes, the debtors, resided.”

Reading from page 143, from the decision in the above case, the court say:

“We are brought,then,to the simple question,whether the promissory notes given for a debt, being in New Jersey, and the makers of the notes, or the debtors,residing in Ohio, the property was in New Jersey or in Ohio? In substance, there is a sum of money in the hands of one man, to which another has title or claim, and the evidence of that title or claim is a promise in writing to pay the money. Upon principle, it would seem clear that the subject-matter to which the title or claim relates is the property, and not the evidence showing the title or claim.”

And here is the reasoning, and while it may be said that this case in all its facts is not like the case at bar, yet the reasoning of the court is to be followed:

“The payee of a promissory note has a property vested in him, but it is in action, not in possession. 2 Bla. Com. 468. It consists in the contract of the maker, and this contract has been said to differ from other contracts in two important particulars: First — It is assignable, whereas a chose in action at common law is not; and, secondly, the instrument itself gives a right of action, for it is presumed to be given for value, and no value need be alleged as a consideration for it. This difference may lead to the idea that there is property in the evidence of the contract; but really the contract constitutes the property — it is property in action. The thing in action has peculiarities which distinguish it from other things in action; but it is still, in law, a thing in action.”

And then the court goes on and holds that the real property is the debt, and that is where the debtor lives.

Taking, then, this law of property, we find no trouble whatever in placing Ohio on the side of those states that hold that where a state has given a right to a creditor, living within its boundaries, to attach a debt, although the evidence of that debt may be hela in another state, that it has so far given a right by law that the situs of that property is changed, and it is in the state where the writ of attachment is given.

This being the law, the situs of this debt was here in Ohio.

If it was here, then by that rule of law it cannot be in Illinois. It cannot be in two places. There was no property, according to the 10th Ohio St. that I have referred to, in Illinois but a property in a right of action; the real property was in Ohio. That being true, the general principles of law heretofore announced make it clear in this case that the attaching creditor residing here has a right to the money due-from the debtor of the corporation, who resides in Akron. Hence the receiver must fail in this action.

Doyle & Bryan, for Plaintiff.

Grant & Sieher, for Receiver.


author: Wilson, J.

text:
    (Second Circuit, Franklin Co, O., Circuit Court,
    September, Term 1896)
    Before Shearer, Summers and Wilson JJ.
    DYER, Prosecuting Attorney v. HAGERTY, Probate Judge.
    The classification made in section 1 of the Collateral Inheritance Tax Law. as amended April 20, 1891, (91 Ohio Laws, 169) held constitutional.
   Wilson, J.

This is an action in mandamus to test the validity of what is known as the Collateral Inheritance Tax Law,passed January 27, 1893 (90 Ohio Laws, 14), as amended April 20, 1894 (91 Ohio Laws, 169). The question involved brings under review the first section of the amended act, to-wit:

“Sec. 1. ' That all the property within the jurisdiction of this state, and any interest therein, whether belonging to inhabitants of this state or not, and whether tangible or intangible, which shall pass by will or by the intestate law of this state,or by deed,grant,sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor, to any person in trust or otherwise, other than to or for the use of the father, mother, husband, wife, brother, sister,nephew,niece,lineal descendant,adopted child or person recognized as an adopted child and made a legal heir under the provisions of sec. 4182 of the Revised Statutes of Ohio, or the lineal descendant thereof, or the lineal decendant of any adopted child, the wife or widow of a son, the husband of the daughter of a decedent,shall be liable to a tax of five per centum of its value, above the sum of two hundred dollars, seventy-five per centum of such fax to be for the use of the state, and twenty-five per centum for 'the use of the county wherein the same is collected; and all adT ministrators, executors and trustees, and any such grantee under a conveyance made during the grantor’s life, shall be liable for all such taxes, with lawful interest as hereinafter provided, until the same shall have been paid ás hereinafter directed. Such taxes shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property, and be and remain a lien until paid. ”

The case was heard on demurrer to the petition raising the single question,is the act constitutional. The discussion in the case was confined to twi propositions, viz.:

First — It is unconstitutional because as a tax upon a privilege it is unequal in that, as amended, it exempts from the tax not only all direct or lineal kindred, but also some collateral kindred.

Second — Because the tax is for a general purpose, but the act provides that 25 per centum shall be placed to the credit of the county in which the tax is levied and collected.

’The case of the State v. Ferris, 53 Ohio St. ,314, resolved this latter question, we think, in favor of the law. In the first syllabus the court says:

“Funds raised by the taxation of franchises, rights and privileges may be applied to purposes of general revenues, or any other purpose authorized by statute. ”

This would seem to be determinative of the second proposition.

There remains, then,to be discussed only the question as to whether the exemption of kindred, direct or collateral, made in the statute, is obnoxious to the constitution as rendering the law unequal in its application and operation.

In State v. Hamlin, 86 Me., 503, it is said:

' “The legislature may, in its discretion, select classes, from which duties and excises may be required, not, however, degenerating into arbitrary and oppressive burdens.”

The statutes of descents and of wills create the privilege which is taxed, but the tax low itself creates the class to be taxed, and it may be the whole or a part only of those who take under the privilege. The line dividing into classes those who take under the privilege is not necessarilyj[an arbitrary one as between lineal descendants and ascendants on the one side, and collaterals on the other; or between collaterals and strangers.

“The right to make exemptions is, in all the states having succession tax laws, generally recognized and exercised. And they have been generally extended so as to embrace, not only near relatives and lineal descendants, but many collateral heirs and charitable and religious institutions.” Dos Passos on Inheritance Taxation, 86.

The Ohio Statute seems to have been framed on those of the States of Virginia and Maine, each of which exempt the lineal descendants, and some of the collaterals, and together all of the collaterals exempted in Ohio. The constitutional restrictions upon the legislative power, in these states, are not in language and terms the same as in Ohio, but in all alike, equality and uniformity are required.

The classifications in these states and others like them havé been uniformly upheld as not violative of the requirement of equality, except only in the state of New Hampshire.

The exemptions seem to be made in favor of those who may have contributed, directly or indirectly, to the accumulation of the estate, the succession to which is taxed as father and mother, brother and sister, and their immediate descendants, nephew and niece, if the estate be ancestral; also husband and wife and lineal descendants, if it be the joint accumulation of a family, and the adopted child, wife or widow of a son and husband of a daughter are rightfully included in the same category. This would seem to be a better distinction, supported upon stronger moral grounds, than if made only between direct descendants and collaterals. The-characteristic is peculiar to the class, and attaches to each member of the class, and the reason upon which it is1 based is better than that the exemptions might b6 made in favor of lineal descendants only. It comprehends all the requirements of a complete class for the purposes of legislation.

But if this distinction is not well founded, the constituency of a class, for the purposes of taxation, is still a matter of legislative discretion, provided it be reasonable and not a capricious use of arbitrary power.

In Eyre v. Jacob, 14 Gratt., 431, Lee, Judge, says:

“That the tax is confined to collateral inheritances and devises to others than those specified, presents no difficulty. It is the will of the legislature to make this discrimination, and its discretion upon the subject must be regarded as having been duly and properly exercised.”

Also, page 437:

“The legislature may define the class to.which this tax shall be restricted, as they in their discretion may think just and proper, taking care to render it uniform with all those who constitute the class.”

In Minot v. Winthrop, 162 Mass., 123, Field, C. J., says:

“The tax imposed by the statute we are considering is said to be unequal because it is not imposed upon all heirs, devisees, legatees and distributees. To make a distinction between collateral kindred or strangers in blood, and kindred in the direct line in reference to the assessment of such a tax, either by exempting the kindred in the direct line or by imposing on collaterals or strangers a higher rate of taxation, has the sanction of nearly all the states which have levied taxes of this kind. It has a sanction in reason, for the moral claim of collaterals and strangers is less than that of kindred in the direct line, and the privilege is, therefore, greater.”

If this be true,we fail to see why the same discrimination may not be made between collaterals themselves, differing in degree of kinship, and between collaterals and strangers, the difference in the moral claim which renders the classification reasonable being one o£ degree only, and not of kind, and clearly within the legislative discretion, if not abused.

J. H, Dyer, Prosecuting Attorney, for Plaintiff.

Harrison, Olds & Henderson, for Defendant.

We, therefore,conclude that the classification, as made in the statute under review, is within the power of the legislature, and is not unreasonable nor oppressive. The tax is uniformly imposed upon all estates and upon all persons within the description contained in the statute, and is,therefore, not unequal.

The demurrer .will be overruled. The writ may issue as prayed for in the petition.


text:
    (Eighth Circuit, Summit Co., O., Circuit Court,
    October Term, 1891)
    Before Baldwin, Caldwell, Hale and Marvin JJ.
    McBRIDE v. THE CITY OF AKRON.

      City draining street and sewerage on lower land — Liability for damages—
    A proprietor — and a city is nothing but a proprietor as regards ' its control over its streets — has a right to drain his land ; and as to water that naturally flows or finds its way into a stream, he has a right to increase the flow of that water into that stream, by carrying it into a ditch, or through an underground drain, or in various ways, if that is the natural place for it to flow; but the upper proprietor cannot so increase the flow of water as to go beyond, the capacity of the stream, where the water did not go beyond that capacity before; and if by doing this, he increases the servitude of the land below by making the overflow greater, or by making an overflow where there was no overflow, ■ he is liable for damages, and a party is not bound to anticipate any injury of this kind until it occurs.

      City directing out buildings, privies, etc., to be drained in stream, depositing it on lower lots — Liability to lot owner—
    Where the city directs parties to drain their out-buildings and privies into a.stream of water, and it is, in consequence, flowing down upon a lower proprietor, and spreading that filth out over his land, he is entitled to damages although the flow of water in the stream, is not thereby increased.

      City changing watershed in improving streets — Liability for turning water on land—
    Where a city in improving its streets changed the water-shed so as to bring down water on to an owner’s premises, which did not naturally flow in that direction, the plaintiff is entitled to, recover for damages resulting therefrom.

      City turning water-course on land — Owner’s consent conditioned that rooter be carried fully, across land — Non-compliance by city-Liability—

    Where the city changed the.channel of a water-course on plaintiff's premises, with the consent and knowledge of plaintiff, and for such consent the city agreed to construct a sewer entirely across said premises, and the city, in pursuance of such consent, constructed its sewer upon said premises, but failed to complete and construct it across the same, abandoning it when constructed less than half way across the premises, and thereby allowed it to discharge upon and overflow plaintiff’s premises to his material injury and damage, the city would be liable for such damages as plaintiff has sustained by reason thereof.

      Practice — Additional charges to jury after retirement. —
    When the court,after the retirement of the jury,on the request of one of the parties allows additional instructions, it would not be proper for the court to merely send such instructions to the jury in their room, but the jury should be called into court to receive such additional instructions.
   Caldwell, J.

Lucius McBride owns a tract of land lying north of West Market street. West Market street does not touch this land upon the south side, but Aqueduct street, which goes off at an acute angle from West Market street, forms the west boundary of the land in question; and this land lies some six or eight feet lower than the present grade of West Market street. This being the situation, the petition in this case avers that coming down .south of Market street, there is an open waterway, a running stream, and that this running-stream passes under West Market street, and that originally, after passing under West Market street, it went down Aqueduct street, or went along Aqueduct street for two or three hundred feet, where it crossed Aqueduct street in a culvert, and after it had crossed, then flowed over a portion of the land of Mr. McBride. The complaint in the petition may be put under four heads:

First — That the city, in grading West Market street, and other streets that open into West Market street, or in that vicinity, and west of this brook or stream of water, has drained territory into the brook that never before drained, into it, and therefore has increased the territory that flows its water into this stream.

Second — That the city has so graded and guttered and paved its streets in that vicinity, that the territory that naturally flowed its water into this stream now flows its water through the gutters on each side of West Market street and through the culvert on West Market street, and precipitates the water in greater quantities at times, and much more rapidly into the brook, and thus has caused injury to this property below, through which the stream flows. Note, the petition avers that it is partly on account of the paving of streets that the water,not being able to find its natural drainage,flows into the sewer; and that by making gutters along the streets, and thus gathering the water, and gathering portions of it that before came down Aqueduct street, and throwing that in at the culvert above, and I might conclude with that, that certain water has been brought down Aqueduct street and allowed to flow into the old channel which I have described on Aqueduct street, the land of the plaintiff was overflowed

Third — That Alexander and Wright, who live south of West Market street, have been allowed to drain their sewage, and their privies, and various filth from their premises into this stream of water, and have been allowed to flow it down and over and upon the premises of the plaintiff; and that this has been done with the consent and with the direction of the city of Akron.

Fourth — The last complaint is, and upon this it will be necessary to notice somewhat the state of pleadings, that when the city carried this water through under West Market street, in making its improvement, it placed a larger culvert under West Market street, and then carried it across Aqueduct street and then on to plaintiff’s land at that point, some hundred and twenty-five feet from where it before passed on to the plaintiff’s land, and that it carried the large pipe through which it flowed this water under Market street, onto plaintiff’s land about fifty feet, and there left it to discharge all the accumulations of filth and water and dirt upon his land.

All of these allegations are denied on the part of the city; but to this allegation the city makes an affirmative allegation in its answer, which is that the plaintiff consented and requested and knew that the city of Akron was carrying this pipe some fifty feet in upon his premises, and left it in the condition it did, with his consent and advice.

A reply is filed in which it is said that this consent was upon the express'condition that this pipe should cross entirely over the plaintiff’s property, and it was granted upon that condition, and no other, thus making it impossible for the land to be in any way damaged or overflowed.

With these four substantive complaints, the parties went to trial, and it appeared upon the trial, as the evidence shows clearly, that this assent of the plaintiff, as to the change of the location of that stream, from Aqueduct street on to his premises, at another point from where it ever entered before, whatever was done about that, was all done at one time. If the city agreed to carry it clear across, it was at the same time that he gave his assent, so that that was all one transaction, and no after-promise.

With this testimony, and after testimony, the case was finally ready for the jury, and the court made its charge. A number of complaints are made as to the manner in which the court charged the jury, A great many special exceptions are taken to this charge, and then the claim is made that the charge is misleading. It will be impossible to notice these without reading portions of the charge.

The first complaint is, that the court erred in charging, that as to any new matter set up in the reply, the burden of proving it was upon the plaintiff. Now, the plaintiff’s new matter referred to by the court could only be, as we read the pleadings, that he did not assent to this stream being changed and carried across his land in a large pipe, except upon the condition that it should go clear across; and when the city came,in its testimony, to justify this,it simply showed that he consented to the city making the change as it now is, or as it was at the time of the trial, without putting in any part of the testimony as to what he claimed; and then he introduced testimony to show that w.hat he did do, was done upon condition — -it was all one conversation,and the arrangement was that the city was to carry it entirely across his land. We do not see any serious objection to the way in which it was charged.

The next complaint is that in regard to what I shall now lead:

“The plaintiff goes on and sets out how the city has increased the volume of water, and so forth, and put in its iron pipe, three feet in diameter, the same being put down and laid at a point on said premises about one hundred and twenty-five feet from the old culvert on Aqueduct street, which has been abandoned, and thereby creating a new channel that distance from the old one without any right to do so; and that is the only allegation in the whole pleading, as I construe it, that charges upon the city, the exercise of powers that it had no right to exercise.’’

That is equivalent to saying to the jury that the city had an entire right'to bring this water down in greater quanti•ties and greater volume, and that it had an entire right to Allow Alexander and Wright to put their sewerage and drain iQnto this stream of water. “That charges upon the city the exercise of powers that it had no right to exercise.” ‘That is simply that it had no right to change this stream. Then the court goes on:

“We say to you, that in the exercise of its powers conferred upon it, by the city, rightfully exercised by it, it is not liable for its acts, unless it appropriates private property of the owner to a public use ■ — use of the city. Where it does so appropriate, whether it does so by proceedings legally instituted, or whether it does so by force, or of its ■own will, where it does subject the property of the individual to a public use, the principle of compensation therefor arises, and the city in that case would be liable to the •extent of the appropriation of private property made for the use of the city. ”

The court, from that on, proceeds very largely to base its charge upon the ground that if the city has made a grade once, and undertakes to change that grade, that it is then liable to a party who has built his property upon the grade that the city had established,and giving the entire law in regard to that matter; and with what the court has said here, that is, “that it charges upon the city the exercise of powers that it had no right to exercise, ” — what would the jury understand by that, as the court explained it? Simply, if the city has taken property to change the bed of this stream,and that without due process of law, then the city had no power to do that.

Now, the court goes on further to say, in language that is complained of:

“The embarrassing point in this case, with the court, arises out of the fact that the plaintiff admits by his reply that the substitution of the new channel for the old one, was made with plaintiff’s knowledge and his consent. Now,it is a well recognized rule of law, that to the consenting there ■can be on damage.”

Following out his course, still the court says that if any property is taken here without the consent of the owner, that the city has exceeded its powers, and so far as it has-exceeded its powers, in taking property without consent, it is liable, and the court then uses this consent that was given by the plaintiff in the case, as taking away entirely the" liability of the city in that in case of the exercise of that power. And we think the jury would understand the language thus far used, as saying that there can be no liability.

Here the court assumes, as existing, a fact which was a main fact in dispute in this case, and that is this: that the plaintiff claimed that he did not consent that the city should change the channel upon his land,or change the flow of that water, except upon the condition that the pipe that it was about to put in should go clear across his land; and the city has denied it,and it claimed that he consented to have it done just as it left it.

That was an issue in the case, and yet, because the plaintiff in his reply said that he admitted that he consented that the city cJiange the channel, that therefore he consented, but that consent was given upon the express condition that it should be carried clear across his land in that pipe, the court assumed that he had consented that the improvement should be made just as it was left. But the pleadings do not make any such consent, nor did the proof make any such consent. In fact,if the matter had been submitted properly to the jury, without the comments of the court in his charge that were made, there is not much doubt but what the jury would have found with the plaintiff upon that issue.

The city had brought the pipe there, and laid it down, enough of it, apparently, to complete the carrying of this water clear across his land. And then it was in evidence that some one objected, and it was not decided that Mr. Alexander objected on account of the cost, and thereupon the party proposed to Mr. McBride — the engineer proposed to Mr. McBride that he should get up a petition, and go around and see if he could not get enough signers to influence the council to carry it clear across his land, and that was done, and the petition is in evidence. With all that, we think the jury certainly, if they had been left untrammeled by the court in this matter, would have decided that question the other way from what they did decide it.

Again, on page 169 of the charge, the court says:

“We therefore say to you that, it being admitted that the new or substituted channel was made with the knowledge of the plaintiff, the plaintiff would be subjected to all the incidents that ordinarily attached to the natural stream before such substitution, and for injuries resulting from such incidents would not entitle the plaintiff to damages from the city, because of the changed location of said stream.”

Now, the jury can understand the first part of that in no other way, because it states two propositions, and the first proposition stated there can mean nothing else: that it being admitted that the new, or substituted channel was made with the knowledge of the plaintiff, the plaintiff would be subject to all the incidents that ordinarily attached to the natural stream before such substitution. That is equivalent to saying to that jury, if this city had permitted Alexander and Wright to drain into this stream their privies and all the filth of their property, and flow it down upon this land before the change was made, that he having submitted to it before there was a change in this channel, that after the channel was changed, he cannot now object. That is exactly the shape in which this matter went to the jury. And then he says he also cannot complain for injuries resulting from such incidents, “and for injuries resulting from such incidents, would not entitle the plaintiff to damages from the city, because of the changed location of said stream.” That is not the law of this case as we will show, in passing along upon it.

The court then comes to another branch of the case:

“If the paving of said Market street was reasonably and properly done, with a reference to the drainage of said street, though it did, and would thereby increase the flow of water resulting from rainfall or melting of snow and ice, it would not entitle the plaintiff to recover from the mere fact that such waters were thrown more rapidly upon and over said premises of plaintiff. Nor would the reasonable improvement of streets in the same watershed, in portions of the city where the same were but partially or entirely unimproved, lay foundation for such claim.”

The court proceeds upon the theory that if the city has established a grade, that it has a right to go on,- and the party who has his land lying in this neighborhood and below that grade, must look ahead and anticipate the rapid flow of the water, and if he wants any damages for that rapidly flowing, and increase of overflow upon his land, then is the time that he must get his damages, and that after the grade has been established,and after the damage has actually come to him,it is then too late. As to this question the trouble is the court never seemed to comprehend the law of an open stream, of a flowing stream. A proprietor — and the city is nothing but a proprietor in this case, has a right to drain his land: and as to water that naturally flows or finds its way into a stream, he has a right to increase the flow of that water into that stream, by carrying it into a ditch, or through an underground drain, or in various ways, if that is the natural place for the water to go, and it has been in the habit of flowing there; but the upper proprietor cannot so increase the flow of that water as to go beyond the capacity of the stream, where the water did not go beyond that capacity, and if he increases the servitude, by doing this, of the land^below, by making thb overflow greater, or by making an overflow where there was no overflow, there is a liability there, and the party is not bound to anticipate any injury of this kind until it comes to him.

I still further notice: if the court means,here in this charge, to say that the plaintiff cannot complain of any increased overflow of the water through ánd upon his land, in the natural channel, or in the channel of the stream, then the court is right; but the court was very indefinite there to the jury — so indefinite that we think the jury would be most likely to understand that if the city brought down this water in such quantities at times, whereas it used to flow slowly, and now it is brought down in such quantities that it overflows acres of his land that never overflowed before, that plaintiff cannot recover. The court was indefinite.

The court goes right on to carry out this idea that it had all the way through, in this language:

“The plaintiff must be treated as holding and improving his lands with reference to such reasonable use and improvement of the streets of said city, though such improvements result in precipitating more rapidly, the rainfall and deposits from melting snow and ice over said lands in and along said natural channel, or as substituted.”

Just exactly the same law is applied here that a party should anticipate a reasonable grade.

Coming to this matter of Alexander:

“The charge that defendant has caused, permitted and allowed Alexander and Wright to construct sewer connections into said stream, whereby filth and the contents of privy vaults are washed down on plaintiff’s premises, we will say as to this charge that if the changed or substitutad channel across plaintiff’s premises as constructed by defendant, did and does not increase such deposits of sewage from Alexander and Wright’s premises, the plaintiff cannot recover, because Wright and Alexander may have deposited their sewage upon their premises "in and to the natural water course. ”

That all means simply this, and nothing more, and the jury could not understand it any other way, that if the city directs, because that is the language used here, parties to drain their out-buildings and 'their privies into a stream of water,1 and it is flowing down upoix a lower proprietor, and spreading that filth all out over his land, if it does that, and then he sues for damages, he cannot get any damages unless the flow over his land in the new channel is worse than it was in the old. And that certainly cannot be law, and it was virtually charging the party right out of court.

On page 171, of the charge, the court says:

“If you find for the plaintiff in this case, the damages recoverable would be such sum as will compensate him fully, for the actual injury he has sustained by reason of the wrongful conduct of the defendant. His cellar may have been flowed full of material; his premises may have been overflowed to the full extent claimed by the plaintiff, but that is a matter that he must bear, and bear without compensation as against the defendant, unless you find from the evidence that the defendant has been the substantial cause of this injury. It can only be made responsible for such recovery, because of some wrongful conduct on its part, and wrongful conduct that has resulted in injury to the plaintiff. If no greater injury has resulted to plaintiff’s premises by reason of the substituted channel than existed before the substitution, though the substitution was made — -well I can’t say, without the consent of the plaintiff in this case, because in his pleading he admitted it was done with his consent, but I will say to you that unless you find there was a substantial injury resulting from the wrongful conduct of the defendant in this case, that resulting in other injury than that which was incident to the premises before the substitution was made, it would certainly lay the grounds for no greater recovery than nominal damages.”

I have said enough about that already. There are two things in there for which this case ought to be reversed, beyond all question. The charge of the court amounted to this: He says to the jury that the plaintiff has admitted that this was put on his land there with his consent, and on his land as it is at this trial, or as it was at the time he brought this action — -that it was done with his consent,- and ■then he submitted to the jury, afterwards, the question as to what the contract was between these parties, as to whether Mr. McBride did assent to this,or not; afer he has told them .in the charge that he did positively assent.

I want to notice another matter on page 172 of the charge:

“But we say to you that for the watershed, the natural 'watershed, the waters of which pass through the natural channel over the plaintiff’s lands, notwithstanding the fact that the city may have improved its streets, if it did so in a reasonable manner, and the only effect of opening these streets was to precipitate more rapidly the natural fall upon this watershed, and so as to temporarily increase the volume of water,and that improvement of the street was reasonably made, though injury might result to the plaintiff’s premises from such enhanced flow of water over his premises, he would not be entitled to recover against the defendant — this could only be within that watershed.”

It is claimed that many of these things that I have noticed were cured by two requests that the court refused to give to the jury in the first place, and afterwards consented they should go to the jury, and it is said here that these requests, numbers three and four, were .given within an hour after the jury had retired for deliberation, and several hours before agreement, the court having refused to give said requests at the time of charging the jury. It is claimed in argument these were sent out to the jury, after the jury were gone, instead of calling in ■and charging them to the jury. We have to take a favorable view of this matter, and we think, in the language I have just read, we are not to conclude that it was done in that way, but that the court gave them to the jury in the legal and proper manner, and therefore we will not further notice that error.

But charge number three is: “If the city changed the watershed so as to bring down water onto the plaintiff’s premises, which did not naturally flow in that direction, and you find the city did so, for that the plaintiff is^entitled to recover for such damages resulting therefrom.” That is-one the court sent out, but I think he had charged the law pretty fully on that matter, as to the outlying watershed that did not formerly flow into this stream. "We think the court got that about right.

The fourth:

‘‘If the jury find the city changed the channel of the water course on plaintiff’s premises, with the consent and knowledge of plaintiff, and that for said consent the city agreed to construct a sewer entirely across said premises, and the city, in pursuance of such consent, constructed its sewer upon said premises, and failed to complete and construct it across the same, abandoning it when constructed less than half way across the premises, and thereby allowing it to discharge and overflow plaintiff’s said premises to the material injury and damage thereof, the city, in such case, would be liable for such damages as the plaintiff' has sustained by reason thereof.”

This is the request that was sent out, or was given to the-jury after they had retired; and while it cures to some extent, at least, the errors of this charge, it still does not takeaway the sting of this charge in such a manner but that we think the party is entitled to a new trial, and the case is reversed for errors in the charge, for the^harge being misleading; it proceeds all the way through upon an entirely wrong theory, and was misleading to this jury, and the judgment will be reversed and the case remanded for a new trial.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co. Ohio Circuit Court
    Sept. Term, 1890.)
    Before Haynes, Scribner and King, J. J.
    ALICE H. TUCKER et al. v. CHAS. M. LUNGREN, et al.

      Devise of land encumbered by mortgage — Payment of mortgage out of estate—
    Where a testator devises land to a devisee which is encumbered by a mortgage, the devisee is not entitled to have the mortgage debt. paid out of personal or real property specifically devised to other-parties by the testator,but such devisee takes the land cum onereunless the mortgage can be paid out of the personal assets after-payment of all debts and legacies, or out of land descended to the-heir, or from some other fund provided for its payment.
    Appeal from the Court of Common Pleas of Lucas county.
   Haynes, J.

This case comes into this court by way of appeal, and the-subject matter relates to a claim of contribution. Primarily, it relates to a claim that is made by the administrator of' the estate of Dr. Samuel S. Lungren as to whether he is entitled to the proceeds of certain property that was sold on partition sale, for the purpose of paying off the indebtedness of the estate.

The facts show that Dr. Lungren died testate in the-month of March, 1892. The Doctor had been a practicing physician for some years in the city of Toledo, and was-possessed of certain accounts and real estate, and also had certain life insurance policies on his own life. The will provided, first:

“I do desire that all my debts and liabilities, of whatsoever kind, owing by me at my death, shall be paid from money derived from accounts due me for medical services rendered. ”

And then he wills to his wife certain property, and to his children certain property; among other things he wills to his wife, Mary F. Lungren, and to his youngest daughter Virginia, otherwise known as Daisy, “to share in equal proportion, the residence now occupied by myself, together with the appurtenances thereto belonging, said premises being more particularly described as follows, viz: Lot 450 Port Lawrence Division, and that part of lot 1417 Vistula Division of the city of Toledo, Lucas county, Ohio, now standing in my name on the county records and owned by me.” This property, at the time, was encumbered with a mortgage of $4,000, being a part of the purchase price of the premises, and was unpaid at the time of his death; and it is in relation to the paying off of this mortgage that this controversy has occurred. He then gives to his youngest daughter the proceeds of a policy of insurance on his life for $3,000, in the New York Life Insurance Company. “This policy was formerly payable to Mary F. Lungren, but has been transferred to my estate by said insurance company.” He then wills to his wife Mary F. Lungren, and to his youngest daughter, Virginia Lungren, “in equal proportions, to be by them divided as they may agree, all my personal property of whatsoever nature and kind, save and except as set forth in item 4th, to Charles Marshall Lungren, and item 5 to Virginia Lungren, otherwise known as Daisy. The bequest in this item six I desire to cover and include all the residue remaining from debts due me, whether shown by my book of accounts or otherwise, after having paid all liabilities of my own provided for in item one hereof.” He then gives and bequeaths to his five children in equal parts, to share and share alike, 40 acres of land, more or less, in Green county, Iowa; 80 acres in Lucas county, Ohio, and 25 lots in Lenk’s addition to the city of Toledo; also to be divided in the same manner the proceeds of a certain policy of insurance on his life in the sum of $10,000 in the Connecticut Mutual Life Insurance Company, of Hartford, Conn. He also willed that certain real estate that was held in trust by L. S. Baumgardner and all other property heretofore devised, should go to his estate, and after the payment of the debts owing by him,should be divided according to law.

The general debts have all been paid, and the accounts have ail been collected and exhausted. There is in the hands of the administrator the sum of $1,100, received from the sale of some property, and there is in the common pleas court a certain amount of money arising from the sale ■of these lots in Lenk’s addition. One of the heirs filed a petition in partition in the court of common pleas, and such proceedings were had that the lots were sold, and upon those partition proceedings the sale was confirmed, and the money received therefrom is now in the hands of the court, or is subject to the order of distribution by the court. The administrator of Doctor Lungren’s estate says that there is ■due on the notes secured by the mortgage upon the home property $4,000, which has been allowed as a valid claim •against the estate, and he prays that this money, which is now in the hands of the court, be turned over to him to apply in the payment of that debt, and thus relieve the mortgaged property from the payment of the debt; and the parties holding that property are here asking for the same ■order or judgment. Thus the question which arises here is whether either the administrator or those parties holding that estate, have a right to call upon these five heirs who own this Lenk property,for contribution for the payment of that mortgage. And there is also another question, as to whether the property that was devised to the different heirs which arose from the life insurance, after that money has been collected and divided among the respective heirs, shall be subject to contribution, so far as is necessary, for the payment of that $4,000 mortgage.

It will be seen that by the terms of the will Dr. Lungren gave to the wife and Virginia the homestead property by name; that at the time he made his will that property was subject to the purchase-money mortgage, and that his interest in it was the equity of redemption. He owned these lots in Lenk’s addition, and they were free from encumbrance when he willed them to his five children absolutely. It is claimed here, first, that there being debts owing by the estate, to-wit: the debts arising upon the notes secured by this mortgage, the debt itself being the principal and the mortgage being to secure it, that the administrator has the right to the proceeds of all property belonging to the decedent for the purpose of paying off that debt, and that in as much as there is no general fund in his' hands, the general estate having been exhausted, he has a right to have this life insurance of $10,000 placed in his-hands to use for the purpose of paying off that mortgage; that that money having been distributed among the heirs, he has a right to call upon them for contribution, and in like manner he has a right to have this money which arises-from the sale of these lots, at least so far as is necessary, to-reimburse the insurance fund, paid into his hands for the-purpose of paying this debt. We were cited by counsel toJarman on Wills, as laying down the general rule in regard to charges on estates. He says, page 1440:

“As to the general right of a devisee,in cases not affected by the statute, to be exonerated from an incumbrance to which the testator, either before or after the making of his will, has subjected the devised estate, there cannot, at this-day, be any doubt or controversy. And it is clear that the-legatee of any chattel, specially bequeathed, has the same right.

“Thus, where a testator holding lands for which he received rent and paid a head-rent, died leaving arrears of' rent due to him, which he specifically bequeathed, and also-arrears of head-rent due from him, it was held that the latter-must be paid out of the general personal estate in exoneration of the specific legatee.

“So a sum due from the testator to his lessor,in respect of a renewal granted during the testator’s lifetime, is payable out of the general personal estate, in exoneration of a specific legatee of the leasehold. And the specific legatee of leaseholds, on which the testator had covenanted to build, has been held entitled to have the covenant performed at the expense of the general personal estate, although the time for performing the covenant has not expired. But where a lessee was liable for dilapidations at the time of his death, it' was held that his specific legatee must himself bear the cost, of repairs.

’‘Under a gift of leaseholds ‘free from all outgoings and payments except the annual and other rent, ’ it was held that the legatee was entitled to have only all outgoings up to the time of his taking possession cleared out of the gen-eral estate.

“Again, if a testator bequeaths a watch' or a painting, and it turns out that at his decease the watch or painting is in pawn, the legatee is entitled to have it redeemed. And by parity of reason, if a testator specifically bequeaths a legacy to which he is entitled under a will, and afterwards assigns such legacy by way of mortgage, the legatee may claim to have the mortgage debt liquidated in exoneration of the subject of gift; and it would be immaterial that the mortgage deed contained a power of sale, by virtue of which the mortgagee might have absolutely disposed of the prop•erty and thereby have defeated the bequest, for in all these cases, the mortgage being considered to have been created by the testator for his own convenience, and not for the purpose of subtracting so much from the bequest, the act is not, as between the parties claiming under the will, an -ademption pro tanto, and cannot, without at least equal impropriety, be termed a partial revocation, though the latter designation has been commonly applied to it. If, therefore,the testator’s right of redemption remain unbarred at his decease, the devisee or legatee is entitled to require that it shall be exercised for his benefit. And if the ex•ecutor fails to perform this duty, the legatee is entitled to compensation.” ,

Jarman proceeds to discuss the question generally, and comes to mortgaged property, and he says this, on page 1443:

“Whether the will indicates an intention that the devisee or legatee shall take cum onere; and, if not, then, secondly, out of what fund is he entitled to claim exoneration. The courts require very clear expressions in order to fasten the incumbrance on the devisee- or legatee of the property in -question,

“Thus it is settled that a devise of lands, subject to the mortgage or incumbrance thereupon, does not so throw the charge on the estate, as to exempt the funds which by law are preferably liable; the testator being considered to use the terms merely as descriptive of the incumbered condition of the property, and not for the purpose of subjecting his devisee to the burden- — -a construction which, though well established, it is more probable generally defeats the intention. ”

But proceeding in Jarman, beyond the parts cited by counsel, we find this

“Suppose, then, that the will contains no intimation of an intention to the contrary, the devisee of a mortgaged estate is entitled to have the incumbrance discharged out of the following funds: 1st. The general personal estate; 2nd. Lands expressly devised for payment of debts; 3d. Lands descended to the heirs; 4th. General pecuniary legacies, and 5th., lands devised charged with debts; and if the charge happened to reach the last class of estates, and if the devised mortgaged estate were included therein (as it of course would be if the charge were general), the devisee in question would be liable to contribute ratably with the other devisees. But the devisee of a mortgaged estate is not entitled to have it exonerated out of personalty specifically bequeathed — a point which was determined in O’Neal v. Mead, where a testator having devised lands, which he had mortgaged, to his eldest son in fee, and bequeathed a leasehold estate to his wife, it was held that the leasehold premises, being specifically bequeathed, were not liable to pay off the mortgage. And a fortiori a specific legatee of incumbered leaseholds cannot call upon a specific legatee of unincumbered leasehold to contribute towards the liquidation of the mortgage debt affecting the former exclusively; and a direction that the mortgage-money shall be paid out of the general personal estate, would not confer such right.”

That clearly shows that these lands lying in Lenk’s addition could not be used to pay off this mortgage.

“It is clear, also, that the devisee of a mortgaged estate cannot claim exoneration as against pecuniary legatees.”

I have read simply to show what the doctrine is as laid down by Mr. Jarman. However, we think there can be no question that this matter is decided by the Supreme Court of this State. The case cited by counsel, 4 Ohio St. 333, was cited for the purpose of showing that under certain circumstances the estate would have to pay off the debt. Under the facts, correctly understood, that is not inconsistent with the rule laid down in the case, to which I shall now refer- — • Glass v. Dunn et al., 17 Ohio St. 413. William Dunn in 1858, died leaving a will by which he devised to each .of his children, of whom there were six — Thomas, Samuel, Caldwell, William and Jane — a specific tract of land, and to his son Robert the rents or proceeds of a 100 acre tract for his life support. A part of the devise to Caldwell and William was incumberd with a mortgage of $1,500. The will also contained pecuniary bequests, viz: $1,500 to Mary Caldwell Glass, $1,000 to Ephraim McCleary, and $1,000 to the children of Margaret Kennon. Whether those last two persons were relatives of his does not appear. Then, after several other dispositions of'property which need not be specified here, the will provides as follows:

“It is my will, and T direct my executor to make sale of my personal property and the farm in Guernsey county on which my son Samuel now resides, containing 112 acres; also, my mill property, with the land attached thereunto, situated on Wheeling creek, Belmont county, Ohio; and further, I direct that, should the suit now pending in the case trying my title to the lands held by me in Union county, Ohio, be decided in my favor, then, in that case, I direct my executor to make sale of the same. The proceeds arising from the sale of the beveral tracts herein ordered to be sold, together with the proceeds of my personal property, to be applied to the payment of my debts and the bequests herein made.

“It is my will, and I do hereby direct my executor that, immediately after the decease of my son, Robert Dunn, he make sale of the one hundred acres in Guernsey county, Ohio, left by me for his use; the proceeds arising from the sale thereof to be divided equally between my eight sons and daughters herein named, or to their heirs, together with all remainders or excess, after paying the within and aforementioned bequests by me herein made.”

The statement oí the case further proceeds:

“The property specified in clause No. 13 has all been .sold by the executor, and the proceeds thereof, together -with all other personal assets of the estate, have been ex.hausted in payment of debts, leaving nothing to apply on ■the legacies, and leaving unpaid debts to the amount of two or three thousand dollars. Among the debts so paid by the •executor was that of $1,200 secured by the mortgage afore.said. Robert Dunn is still alive, and the 100-acre tract so ■devised for his life support has not yet been sold. The present action has been brought by Mary Caldwell Glass ■ and her husband, against the executor, devisees and legatees aforesaid,"to marshal the assets of the estate. The petition • and answer set forth, substantially, the facts aforesaid. The -object of the action is to compel Caldwell Dunn and William Dunn to refund the amount so paid upon the mortgage, to •be used as a fund for the payment of debts and legacies; to have the land so charged with the life support of Robert ■sold, subject to said life support, and the proceeds applied in like manner to the payment of debts and legacies; and to obtain from the several devisees a pro rata contribution to the legatees, so as to eqalize the loss arising from the -deficiency of assets for payment of debts and legacies.”

Welch, J., says, in delivering the opinion:

“The plaintiffs are clearly entitled to the relief they seek against Caldwell and William Dunn,- so far as regards the mortgage debt. It seems to be well settled law, that a •specific devisee of land incumbered by a mortgage, cannot, as between him and general pecuniary legatees- — -and a fortiori he can not as between him and specific legatees and •devisees- — -avoid the burden of paying the mortgage debt. He takes the land cum onere, unless the debt can be satisfied out of the personal assets, after payment of debts and legacies, out of land descended to the heir, or from some fund provided in the will for its payment. As between him and his co-devisees and legatees, he takes only the equity •of redemption in the land devised, and must himself pay the mortgage debt if it is to be paid. It follows that the amount so paid by the executor upon this mortgage must be ■¡refunded by Caldwell and William, in proportion corresponding with the value of the land of each, to "'be applied by the executor in payment of the debts and legacies.”

C. T. Johnson and W. H. A. Bead, for Administrator.

Bassett, McLellan & Waehenheimer, for Heirs.

We think, that the decision and the law of the land require us to dismiss this cross-petition of Mr. Johnson. We think the parties that own or did own the lots lying in'Lenk’s addition are entitled to the fund that arises from the sale of that property, and that without being required to make any contribution either to the administrator, or Mrs. Lungren or Virginia who hold this homestead property. The decree may be drawn in accordance with that view. The administrator will pay the costs of this suit in this court.