author: WILDMAN, J.

text:
    INTOXICATING LIQUORS.
    [Wood (6th) Circuit Court,
    November 24, 1906.]
    Haynes, Parker and Wildman, JJ.
    Cora L. Moser v. William L. Stebel.
    1. Sunday Sale of Liquors as Fokfeitube of Lease.
    Sale of intoxicating liquors on Sunday comes within the provisions of Rev. Stat. 4361 (Lan. 7236) providing for the forfeiture of leasehold estates for the unlawful sale of intoxicating liquors by the lessee, invalidates eo instanti the lease of the premises .where made, and the fact that the act making such sale on Sunday unlawful was passed subsequent to the section declaring the forfeiture is immaterial.
    [For other cases in point, see 5 Cyc. Dig., “Intoxicating Liquors,” §§ 374-377. — Ed.]
    2. Fokfeitube of Lease fob Únlawful Use Declabatory of Common Law.
    In so far as Rev. Stat. 4361 (Lan. 7236) provides for the forfeiture of the lease of premises upon which intoxicating liquor has been sold contrary to law, it is- declaratory of a principle that existed at common law independent of the statutory enactment.
    3. Facts Necessary to Establish to Declare Forfeiture.
    It is not necessary that a landlord, seeking to forfeit a lease because -of the unlawful sale of intoxicating liquors on the premises, should bring a criminal prosecution and establish beyond reasonable doubt that the lessee has violated the law with reference to liquor selling. It is enough if he proceed in a court of civil jurisdiction and by the amount of proof requisite in such a tribunal establish the fact that the defendant has violated the law, whereupon the common law principle applies, terminating the tenancy as of the time of the unlawful act.
    4. Lien of Saloon Tax as Affecting Prior Leases.
    The lien created upon the premises for the 'saloon tax provided for in the Aiken law cannot affect leases made prior to the passage of that law, but if the lessee has by unlawful sale of liquor 'forfeited his lease the lien will attach as provided for in the statute.
    [For other cases in point, see 5 Cyc. Dig., “Intoxicating Liquors,” §§ 379-386. — Ed.]
    6. Remedy of Lessor on Forfeiture óf Saloon Lease.
    When the lessee of saloon property is insolvent and has forfeited his lease by an unlawful sale of liquor his position is analogous to that of one holding over his term, the lessor may enjoin him from continuing ■ the saloon business on the premises in order to prevent the lien for the saloon tax provided for in the Aiken law from becoming a lien upon the premises, and to have the lease judicially declared to be forfeited.
    [Syllabus approved by the court.]
    Appeal from Wood common pleas court.
    Fell & Schaal, F. M. Riegle and J. O. Troup, for plaintiff.
    Baldwin & Harrington, for defendant.
   WILDMAN, J.

The ease of Moser v. Stebel presents the following issues:

Cora L. Moser is the owner of a certain saloon property in. the Tillage of Perrysburg, which at the time -of some of the transactions involved in this case was in the occupancy and possession of the defendant, Stebel, as her tenant. A suit was brought by her in the court below to enjoin him from continuing the saloon business upon said premises and to declare the lease forfeited by reason of unlawful sales said to have been made by him upon a Sunday prior to the filing of the petition. She alleges:

First, that he had forfeited his rights under the lease by his violation of the law in the respect already referred to. Second, that the so-called Aiken law (98 O. L. 99; Rev. Stat. 4364-9; Lan. 7248) had shortly before been passed by the legislature, which law imposed a tax upon the business of selling liquor to the amount of $1,000 per annum and provided that it should become a lien upon the property wherein the business was conducted. The petition alleged also that the plaintiff had begun proceedings in forcible detainer against the defendant to eject him from the premises in controversy. In addition to these aver-ments, and as a reason for affording her the protection which she seeks, she alleged the insolvency of defendant.

The case was tried in the court below upon affidavits which had been used in presenting a motion to dissolve a temporary injunction allowed by the court, and having been submitted to the court proceeded to final decree and was subsequently appealed to this court. Since its appearance here a supplemental petition has been filed by the plaintiff, alleging that the forcible detention suit mentioned in her petition below has gone to judgment, resulting in her favor, and that the defendant has thereupon vacated the premises, so that she had been restored to possession. There seems to be not very much left for this court to determine under an adjudication as to the rights of the parties except with reference to costs as based upon the claims presented by the pleadings and the facts as existing at the inception of the suit. These are substantially'as follows:

On a certain day — the Sunday prior to the beginning of this suit— the defendant, Stebel, being in the possession of the premises in controversy, made sales in violation of the Sunday law. It seems to be conceded that the defendant is insolvent — at least no counter affidavits have been filed to those which make the assertion of his insolvency.

.The' question is raised by the defendant, whether the making of Sunday sales in violation of the law would result in the forfeiture of his rights under the lease by virtue of any suit or otherwise. The section of the statute which has been most discussed in this respect is Rev. Stat. 4361 (Lan. 7236) which it has been stated is the basis of the plaintiff’s claim that the defendant had forfeited his leasehold; it reads:

“A married woman shall have the same right to bring suits and control the same, and the amount recovered, as a feme sole; all damages recovered by a minor under this chapter shall be paid either to such minor, or to his or her parent, guardian or next friend, as the court shall direct; the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon premises where such unlawful sale or giving away takes place; and all suits for damages under this qhapter shall be by civil action in any court having jurisdiction thereof.”

Much of this section is irrelevant to the issue between these litigants, except as it may throw light upon the question presented by counsel for the defendant whether this clause as to forfeiture has any reference to sales of this kind; that is to say, sales in violation of the Sunday law. The section concerning this provision is found incorporated in the statute providing for civil damages for unlawful sales of liquor, whereby injury has resulted to some person or persons. It is to be noted, however, that this clause has no direct reference to civil damages. Its reference is to violations of the penal law: “The unlawful sale or giving away of intoxicating liquor shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon premises where such unlawful sale or giving away takes place;” and though it may have required an unlawful sale to justify a suit for civil damages, as has been held by our Supreme Court, still it seems that this forfeiture is not upon the ground that damages have accrued to any person civilly, but solely upon the ground that one of the penal laws has been violated.

It is insisted by counsel for defendant that in the original civil damage act the inhibition against selling liquor on Sunday was not one of the. clauses included. We think, however, that this question can be disposed of without tarrying very long to consider whether Rev. Stat. 4361 (Lan. 7236) contemplated all unlawful sales, or only such sales as at the time of the original enactment were made in violation of law, such as selling to drankards, minors, etc. Our judgment is, that this section does apply; in other words, that we are to treat the clause as applying to all unlawful sales; that the scope of the section is broad enough and that no substantial reason can be found for limiting it to the kinds of sales that were made unlawful at the time the section was first inserted in the law.

If at that time it applied only to unlawful sales to minors, drunkards, etc. — but if by statute it was subsequently made unlawful to sell upon Sunday — then this section applied to such new unlawful sales. However, as I say, we are not forced to depend entirely upon this section. It seems to us that it is in a measure declaratory of a principle that existed at common law and which still exists independent of the statute.

Let us look for a moment in passing and before treating further this question, at Rev. Stat. 4364 (Lan. 7239) which provides:

“If a person rent or lease to another, any building or premises to be used or occupied, in whole' or in part, for the sale of' intoxicating liquors, or permit the same to be so used or occupied, in whole or in part, such building or premises so leased or occupied, shall be held! liable for, and may be sold to pay, all fines, costs and damages assessed against any person occupying the same.”

In other words, by Rev. Stat. 4364 (Lan. 7239), fines for the violation of any law, including the Sunday law, are made a lien upon the premises where the business is conducted and where the unlawful sales are made. Now in connection with that, I invite attention to the' case of Mullen v. Peck, 49 Ohio St. 447 [31 N. E. Rep. 1077], where it is held:

“It is not essential to the right,of the plaintiff in an action under Sec. 4364 [Lan. 7239], of the Revised Statutes, to subject the premises where intoxicating liquors were unlawfully sold, to the payment of the damages caused by such sales, either that the premises should have been leased for the purpose of selling liquor thereon in violation of law, or that the owner or lessor should have knowledge that such liquors were tó be sold thereon, or knowingly permitted the sales which caused the damages. Such action may be maintained, if the premises were leased to be used for the sale of intoxicating liquor, or were permitted by the lessor to be so used. ’ ’

If they were leased for the purpose of carrying on the saloon business, even lawfully, but if the person in possession carried it on unlawfully and thereby became liable to be sued for damages, the premises would be charged with the payment of such damages. Now, there is no distinction in principle between the lien for damages and the lien,for fines, because they are both embodied in Rev. Stat. 4364 (Lan. 7239), and in the case of Simpson v. Serviss, 2 Circ. Dec. 246 (3 R. 433), decided by the circuit court of Clark county, Judges Stewart, Shauck and Shearer-the same principle was applied to the lien for fines, as follows:

“The lien for the assessments and penalties prescribed by the act entitled ‘An act providing against the evils resulting from the traffic in intoxicating liquors,” passed May 14, 1886 (83 O. L. 157), attaches to the real property on and in which the business of such traffic is conducted by a lessee, although * * * the same is so conducted without the knowledge or consent of the lessor or owner of the premises, ana in violation of the conditions of the lease.”

So we have these two decisions: one of the Supreme Court and the other of the circuit court holding respectively that this lien made by Rev. Stat. 4364 (Lan. 7239) is imposed upon the premises even if the unlawful sales in one case occur or in the other case the liability for injuries accrues, without the knowledge or consent of the lessor. I cite these in view of the claim of danger that might accrue to the lessor in this case in another respect — in respect to the tax which has been imposed by the Aiken law and which may also become a lien upon the property, and I cite it also in connection with the case of Thompson v. Ackerman, 12 Circ. Dec. 456 (21 R. 740), and with especial reference to the opinion found on page 466 — the opinion of Judge Mooney.

This was not a proceeding or action with reference to the unlawful sales of liquor, but it had reference to the use of leased premises for the purpose of gambling in violation of another act and in violation of the statute which in itself makes a forfeiture of the lease by reason of such use of the premises — the use of the premises in violation of the gambling law. In the- discussion of the questions involved, Judge Mooney says, quoting from 4 Kent’s Commentaries 121:

“ ‘If the tenant for life or years aliened his land by feoffment, this act was, at common law, an implied forfeiture of the estate, and the reversioner might enter as for a breach of a condition in law. These estates were likewise subject to forfeiture, not only for waste, but for any other act which in the eye of the law tended to defeat or divest the estate in reversion or pluck the seigniory out of'the hands of the lord. It was a tacit condition annexed to every tenancy, that the tenant should not do any act to the prejudice of the reversion.’ ”

Judge Mooney cites also Wright, Tenures 203 and Taylor, Landlord & Tenant Secs. 271, 272 and 488, and adds:

“It cannot be believed that that law which decrees a forfeiture for attorning to a stranger — a void thing, and creating no rights as against the landlord — will not so decree when by the tenant an act is done which puts a valid lien upon the landlord’s estate, perhaps for an amount Avliich will consume the entire reversion. The liability to loss of his property placed upon the landlord, whether he be the lessor or the grantee of tbe lessor; the violation of his common-law duty by the tenant who conducts gambling upon the leased premises; the purpose of our legislation which is to effectually suppress gambling, the duty of the landlord which is to hinder or prevent the unlawful acts upon his premises, all permit, if indeed they do not require, the lessor’s grantee to hinder gambling upon his premises by expelling therefrom a tenant whose criminal act may deprive the landlord of his entire estate in reversion.
“Having imposed this liability upon the landowner, it would seem a hardship if a way * * * were not provided by which the liability could be avoided. We believe that that way has been provided by the common law and that it must be held that it is a tacit condition annexed by law to all tenancies that the lessee or his assignee will not by his unlawful act cause a forfeiture of the landlord’s interest, * * * in the leased premises, and for breach of such condition the lessor or his grantee may, by an action in forcible entry and detainer, enforce a forfeiture and recover possession.”

We concur with this view of the spirit and purpose of the statute and the common law with reference to the acts of a'tenant which might amount to a waste of the landlord’s estate; a waste of it by'the destruction of the tangible property itself, or a waste of it by putting in peril of destruction the landlord’s title and if a tenant without the knowledge or consent of the landlord may do acts with reference to or upon the property which he holds as tenant which might place thereupon a lien perhaps to the full value of the property, so that the landlord is in danger of losing his entire estate, it would seem that equity would justify an interposition of a court to protect the landlord from ouch result, unless he has an adequate remedy at law. It is urged here that he has such a remedy; that he may obtain a judicial forfeiture of the lease by proceedings before a justice of the peace in forcible detention, and that is the tenor of the decisions, — some of them. It is the decision in the circuit court report to which I have referred.

In the case at bar a proceeding before a justice of the peace tc declare the tenancy forfeited in fact and ousting the defendant from the premises was maintained and judgment was obtained; so that, for the mere purpose of declaring a forfeiture of the lease, we do not think ihat the present action would be maintainable. It remains to be seen, however, whether or not certain rights did not accrue to the lessor by reason of the Aiken law which provides that during the term of the lease, if the business of liquor selling is continued therein, a lien for $1,000 will be placed upon the property to secure the tax imposed by the law. The only thing sought in this suit is a discontinuance of the' business under the circumstances disclosed. The statute provides that the continuance in the business or the conducting of the business shall subject the- person conducting it to the tax of $1,000 and that the tax shall become a lien upon the property on May 28. It seems that this act was to go into force and the lien attach only two days after the date when the petition herein was filed; the proceeding had been begun upon the same date in forcible detention to procure a forfeiture of the lease and eject the tenant from the property, but the time was too short to stop him in the continuance of the business before the lien under the act would attach.

What then were the rights of the lessor? The law was not quick enough. By the tenant’s unlawful act he had forfeited the right to continue the business under his lease and forfeited his right to the possession of the •"’+w He was like a defendant holding over after his ter' - "1Upot to be dispossessed, but while still in ^ he could be dispossessed business.

Anothc be met and main in p< tached to of the le? which wi long afti far as ; passed and i v in f of in u

by him, and our judgment is, that it was forfeited by him immediately upon the d.ate of the first unlawful act and that eo insianti he lost all his rights under the lease.

It is true that to procure a legal adjudication of that fact the lessor must proceed in some court, but it is not so much to forfeit the lease' as it is to procure the declaration of the court that it is forfeited. It is not incumbent upon the lessor to bring a criminal prosecution and to establish beyond a reasonable doubt that the defendant has violated the law; it is enough if the lessor proceed in a court of civil jurisdiction and, by the amount of proof required and requisite in such tribunal, establish the fact that the defendant has violated the law, and then under the statute the common-law principle applies and thereupon the tenancy is found to have been terminated at the time of the unlawful act.

As already stated, it is like a case of a tenant holding over, and; so construing it, what would be the rights of Mrs. Moser after the termination of the lease by expiration of the term of the tenancy, the lessee remaining in possession and attempting to carry on the business of liquor selling, the Aiken law having been passed and by its provisions establishing a lien upon her property, if the business should bQ so con- ' tinued — a lien .which may subject her to the loss of her property? We think that she had no adequate remedy at law; that all she could do .was to proceed in equity and by an application for an injunction stop the defendant from.continuing the business so that the law would not take effect to establish a lien on the property.

If the defendant, having forfeited his rights, had been suffered by her to continue the business until after the date provided by law ^ t rJ:or the fixing of the lien, she might have been estopped from disputing rri "cl % iheglien. It is difficult to see why she would have had any better de- ^ o £. ^ ^ llnfe fhan as if she had rented the property to him after the passage 4 \ a & ' •o B 15 -S % ^3 £ ^ made to me by Judge Parker as further g .?> if¡u|£r|tr?e llf tlpe^c^ ^a-ythe forfeiture is not dependent upon an % % ^ a$jírüi1|i%33&f cs^u% ^t^s determined by the very unlawful selling ® ^ ^it^lN-^ál Tie l^oft 'i^i|ljtrt?ba%e ©ogsibly repossessed herself of the ^ ^ jlá r?Tr» ® M (5) •f’’* <?¿ <$. _ ' v5 -e % cS r& += # ’P % of t^eHai^ and in full knowledge thereof. P*tH. f^pdiiig. of the court will be according to the opinion which l fte^, gfyej$ asfrd judgment will be rendered for the plaintiff, with yt t’v & % > . ró & ^ 2 35 % Tjl V • o XJ1 in s # % % & .P - ‘^p^p^t^gfc^ut v|jjtlng?|:cf^ Sri ^j^Ii^atipn. I think that is true; she jg % ^.ad t|p ^ignt+but h'§£ ,i|i ^ccmrl^o^eciuity are not dependent upon Is % % ^^pfes^ilft^that iSjecsmi^hln 1% defendant out. It is xn % % fibtSj5iic$t<ll fee thtg; «iex£dBl(3feheyejf0^i^C’it®without a breach of i S s. y 'o. p ® ** ' ■ '8 8 S ® -1 I % 'p* «*-»•£ § ^ &» „ 03 44 $’8 « - a I Y d ^ | O .d 0 05 g. S Í r?j ,. P * t If £ ^ <v -o % •% ^ & & a O £ ^ £ eo % % & ■$. ^ V* v. tft iá 4 ^ ^ '<P* UA J-3 rt> ^ Ü-A

the peace or trouble, and she had a right to appeal to the court to prevent him from doing any act to her injury while he remained in the unlawful possession of her premises.

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    EVIDENCE — GIFT—MORTGAGE—STATUTE OF LIMITATIONS.
    [Cuyahoga (8th) Circuit Court,
    February 4, 1907.]
    Marvin, Winch and Henry, JJ.
    Edward David, Admr. v. Caroline E. Fauble et al.
    1. Acknowledgment or a Barred Mortgage Lifts the Statute of Limitations.
    Where the statute of limitations has run against a note and mortgage, a recital in a subsequent mortgage, on the same premises, that the same is made “subject to” the former mortgage, is an acknowledgment of the first mortgage sufficient to take it out of the statute, and, although the remedy on the note is gone, the right to foreclose the mortgage remains.
    [For other cases in point, see 5 Cyc. Dig., “Limitation of Actions,” §§ 564-581. — Ed.]
    2. Loss of a Note does not Establish a Gift.
    The fact that a particular note cannot be found, coupled with evidence that deceased had made statements that he did not wish to leave any debts against his sister — the defendant — and that she would have nothing to pay after his death, is not sufficient evidence .to establish a gift of a note made by defendant and payable to deceased under the circumstances of this case.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 3969, 3970; 4 Cyc. Dig., “Gifts.” §§ 32-49, 79-87. — Ed.]
    [Proof of this decision and syllabus was submitted to 'Judge Winch and corrected. — Ed.]
    •Appeal from Cuyahoga common pleas court.
    Edward David and J. C. Heald, for plaintiff;
    Acknowledgment in writing sufficient to arrest the statute of limitations. Harrell v. Davis, 108 Ga. 789 [33 S. E. Rep. 852]; Martin v. Somervell Co. 21 Tex. Civ. 308 [52 S. W. Rep. 556]; Belknap v. Gleason, 11 Conn. 160 [27 Am. Dec. 721]; Baily v. Smith, 14 Ohio St. 396 [84 Am. Dec. 385]; Fisher v. Mossman, 11 Ohio St. 42; Taylor v. Hunt, 118 N. C. 168 [24 S. E. Rep. 359]; Gary v. May, 16 Ohio 66.
    No new promise being made by decedent’s widow, or partial payment, or acknowledgment in writing, it would not bind decedent’s estate. Lawton v. Adams, 7 Circ. Dee. 129 (13 R/233) ; Torbit v. Heath, 11 Col. App. 492 [53 Pac. Rep. 615]; First Nat. Bank v. Woodman,
      93 1'owa 668 [62 N. W. Rep. 28; 57 Am. St. Rep. 287]; McLane v. Allison, 60 Kan. 441 [56 Pac. Rep. 747],
    C. F. Morgan, for defendants.
   WINCH, J.

This is an action to foreclose two mortgages upon the same premises, both given by the defendant, Caroline E. Fauble, and both now held by the administrator of the estate of John W. Morgan, deceased.

The petition has two causes of action.

The first cause of action sets up a mortgage given February 17, 1871, by Caroline E. Fauble, her husband, Michael J. Fauble, joining with her, to'William S. Jones, to secure a note for $300 of said date, due in three years, given by her husband, Michael J. Fauble, to said Jones. It recites that said Jones duly assigned said note and mortgage to said John W. Morgan on October 10, 1883, and that no payments were ever made upon said note except the first six months interest. This mortgage was duly recorded February 20, 1871, 'in volume 182, page 539, of Cuyahoga county records. It further recites that on January 30, 1893, said Caroline* E. Fauble duty executed and delivered to said John W. Morgan another mortgage of said premises to secure her note of said date for the sum of $500, payable to said Morgan five years after date, and that in this second mortgage is contained the following recital:

“This conveyance is made subject to a mortgage executed by Caroline E. Fauble and Michael J. Fauble to William S. Jones, for the sum of $300, and recorded February 20, 1871, in volume 182, page 539 of Cuyahoga county records.”

Reliance is had upon this recital in the second mortgage to remove the bar of the statute of limitations from the first mortgage.

To this first cause of action a demurrer was filed.

The second mortgage is set up in the second cause of action in which it is admitted, however, that the note secured by said mortgage has been lost and cannot be found.

The defense to this mortgage is, that said ..Caroline E. Fauble was the sister of John W. Morgan and that he forgave her her debt and destroyed said note before his death.

As to the demurrer to the first cause of. action:

Manifestly the note secured by the first mortgage is barred by the limitation of the statute, which is fifteen years. The mortgage, also, is barred by the same statute, unless the recital in the second mortgage, is an “acknowledgment” thereof, within the purview of Rev. Stat. 4992 (Lan. 8507), so as to authorize the bringing of an action to foreclose said mortgage within fifteen years from the date of said second mortgage, which was January 30,'1893.

The wording of this section of the statutes was slightly changed upon the adoption of the revision of the statutes, June 20, 1879, but, under the facts of this case, that is of no consequence.

True, the mortgage having been given when the old statute was in force, that statute would apply until the limitations therein provided had run out, which was in 1889. Horseley v. Billingsley, 19 Ohio St. 413.

But the fifteen years having expired before the acknowledgment or new promise was made, the statute then in force applies. Brooks v. Otis, 2 Dec. Re. 355 (2 W. L. M. 490).

It is claimed that the words used in the recital in the second mortgage do not amount to an acknowledgment of the former mortgage.

In the recital it is said that the second mortgage is made “subject to” the former mortgage. We are inclined to think that this clause clearly recognizes that the former mortgage is existing and that the mortgagor is willing to discharge it. Bissell v. Jaudon, 16 Ohio St. 498.

Such was the opinion of the Supreme Court of Iowa in Palmer v. Butler, 36 Iowa 576, a case very much like'.this and one that has been cited with approval by all the standard text-books on limitations and mortgages.

The contention of counsel for defendant that though an acknowledgment of the mortgage may take it out of the statute, still there can be no foreclosure of it, because the note which it secures is barred, is not maintainable.

It is claimed that the case of Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842], is authority for this contention, and general language used in the concluding paragraph of the opinion in said case would seem to warrant the claim. But the syllabus is carefully limited, and reads as follows:

“A mortgage is a specialty and an action for its foreclosure and sale of the premises comes within the provisions of section 4980 [Lan. 8495], Revised Statutes, and the period of limitation is- fifteen years, unless extended, by virtue of section 4992 [Lan. 8507], Revised Statutes. ’ ’

On page 254 of the opinion, the court also says:

“A mortgage may be made to secure an account, and an action on account may be Barred in six years, while an action on the mortgage would not be barred short of fifteen years.”

The court also says, page 253:

“The case of Fisher v. Mossman, 11 Ohio St. 42, correctly holds that the bar of the note, or other instrument secured by mortgage, does not necessarily bar an action on the mortgage.”

The latter case quoted with approval from the leading case of Belknap v. Gleason, 11 Conn. 160 [27 Am. Dec. 721], to the effect that,

“'Where a security for a debt is a lien on property, personal or real, that lien is not. impaired in consequence of the debt being barred by the statute of limitations.”

So we conclude that though the remedy on the note is gone, the right remains, the debt is not paid, and the remedy on the mortgage still exists, being extended by the acknowledgment.

Speaking generally of the defense of the statute of limitations, we quote from Bradfield v. Hale, 67 Ohio St. 316, 325 [65 N. E. Rep. 1008]:

“While such a defense is not viewed with disfavor, and is regarded as one of merit, it has not yet become a special favorite of the law so as to justify extending it beyond the letter and spirit of its enactment. ’ ’

As to the second cause of action:

The testimony on this subject was deficient in two particulars:

It is not at all certain that the note was destroyed before John W. Morgan’s death. All we know is, that it cannot now be found. After his death his papers passed through the hands of two. persons before they came to the hands of the administrator. One of these persons was an imbecile relative of the defendant and the, deceased. The note might have been lost after Mr. Morgan’s death.

Again, the testimony relied upon to prove a gift is too general. It is said that the deceased previous to his death repeatedly said that he did not want to leave any “debts” against his sister, the defendant; that she would have nothing to pay after his death, etc.

The slight presumption arising from such statements that he destroyed the note in pursuance of his promise to hold no claims against her, is rebutted by the finding of the note secured by the first mortgage. To carry out his general promises, if they amount to promises, he should have destroyed both notes.

The demurrer to the first cause of action is overruled and judgment is rendered in favof of the plaintiff on both caiises of action.

Marvin and Henry, JJ., concur.


author: GIFFEN, J.

text:
    CONSTITUTIONAL LAW — JUSTICES OF THE PEACE.
    [Hamilton (1st) Circuit Court,
    March 8, 1907.]
    Swing, G-Men and Smith, JJ.
    State ex rel. Hiram M. Rulison, Pros. Atty. v. Charles P. Mackelfresh
    1. Statutes Ununiform in Operation Unconstitutional.
    Section 3 of act 51 O. L. 406, as amended in 91 O. L. 78, and in 92 O. L. 59 (see Rev. Stat. 568; Lan. 900), by reason of the exception in favor of certain counties is unconstitutional and void, and the repealing sections are also inoperative. This statute as originally enacted in 51 O. L. 406, is still in force.
    [For other cases in point, see 2 Cyc. Dig., “Constitutional Law,” §§ 975-1100. — Ed.]
    2. Effect of Annexation of Territory on Officer of Annexed Part.
    By reason of annexation and by force of the last part of Rev. Stat. 568 (Lan. 900), a justice of the peace is authorized to perform the duties of his office in the township to which the territory in which he resides has been annexed, hut only until the end of the term of three years for which he was elected.
    [For other cases in point, see 5 Cyc. Dig., “Justices of the Peace,” §§ 69-84. — Ed.]
    3. Proceedings for Increasing Number of Justices of the Peace.
    In such a case no new office of justice of the peace is created for which a successor should he elected and qualified; it is only by application to and determination by the probate judge of the county, in accordance with the provisions in the first part of Rev. Stat. 568 (Lan. 900), that the number of justices of the peace can be permanently increased.
    [Syllabus approved by the court.]
    H. M. Rulison, prosecuting attorney, Frank Morris, L. B. Sawyer and C. O; Rose, for plaintiff;
    The annexation of Winton Place to Cincinnati or Cincinnati township did not extend the jurisdiction of respondent over Cincinnati township, or authorize him to act as justice of the peace for Cincinnati township. State v. Heffner, 59 Ohio St. 368 [52 N. E. Rep. 785] ; State v. Maxfield, 6 Circ. Dec. 11 (9 R., 26) ; State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570] ; Sutherland, Stat. Constr. 457; State v. Blend, 121 Ind. 514 [23 N. E. Rep. 511; 16 Am. St. Rep. 411]; State v. Buckley, 60 Ohio St. 273 [54 N. E. Rep. 272] ; State v. Smith, 48 Ohio St. 211 [26 A. E. Rep. 1069]; Bishop, Written Laws Sec. 35-32; State v. Buckley, 9 Circ. Dec. 341 (17 R. 86) ; Backenstoe v. State, 14 Dec. 580; Goman v. Bepler, 7 Dee. 15 (4 N. P. 242) ; Spraigue v. Thompson, 118 U. S. 90 6 Sup. Ct. Rep. 988; 30 L. Ed. 115] ; Higgins v. Drucker, 12 Circ. Dec. 220 (22 R. 112) ; Beehe v. Scheldt, 13 Ohio St. 406; Harding v. New Haven Tp. (Tr.) 3 Ohio 228; Truesdell v. Comls, 33 Ohio St. 186.

      Respondent’s term of office expired April 16, 1906, and was not extended by virtue of Art. 17 of the constitution. Pfeifer v. Green, 4 Dec. 239 (3 N. P. 157).
    T. H. Darby, for defendant:
    By operation of Rev. Stat. 568 (Lan. 900), upon the annexation to Cincinnati township of that part of Millcreek township in which said Mackelfresh resided, he became authorized to execute the duties of justice of the peace in the township of Cincinnati in the same manner and to the same extent as if he had been elected for said Cincinnati township.
    By operation of Art. 17 of the constitution .of Ohio, adopted November 17, 1905, and of the statute enacted March 31, 1906, the said term- of his office as justice of the peace is extended to January 1, 1908. State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619]; Kelley v. State, 6 Ohio St. 269; State v. Campbell, 8 Cixe. Dec. 62 (14 R. 481); Campbell v. State, 56 Ohio St. 794; State v. Buckley, 60 Ohio St. 273 154 N. E. Rep. 272] ; State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570]; Pearson v. Stephens, 56 Ohio St. 126 [46 N. E. Rep. 511]; Heart v. Murray, 48 Ohio St. 605 [29 N. E. Rep. 576]; State v. Graver, 66 Ohio St. 555 [64 N. E. Rep. 573] ; State v. Lewis, 69 Ohio St. 202 [69 N. E. Rep. 132] ; State v. Hefner, 59 Ohio St. 368 [52 N. E. Rep. 785] ; State v. Smith, 48 Ohio St. 2.11 [2'6 N. E. Rep. 1069].
   GIFFEN, J.

The defendant on April 6, 1903, was a resident of the village of "Winton Place in Millcreek township, Hamilton county, Ohio, and was on that day duly elected a justice of the peace in said township for a term of three years, beginning April 16, 1903. Cincinnati township and the city of Cincinnati were at that time coextensive, and the village of Winton Place was adjacent thereto.

On April 12, 1904, that part of Millcreek township embracing the village was annexed to Cincinnati township.

From and after April 12, 1904, the defendant exercised the duties of justice of the peace in Cincinnati township the same as if he had been elected therefor. This action was commenced to determine by what right, if any, the defendant holds the office of justice of the peace for Cincinnati township.

Revised Statute 568 (Lan. 900) is, by reason of the exception in favor of certain counties, unconstitutional and void.

The repealing sections, 91 O. L. 78, and 92 O. L. 59, are also inoperative, whereby the original act, 51 O. L. 406, is still in force. State v. Brickley, 60 Ohio St. 273 [54 N. E. Rep. 272].

Although defendant’s term of three years expired April 16, 1906, he claims the right to hold over until his successor is elected and qualified, by virtue of Art. 17, Sec. 3 of the constitution, as amended November 7, 1905, which provides as follows:

“Every elective officer holding office when this amendment is adopted, shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified as provided by law. ’ ’

The demurrer to the answer presents the question whether there is any lawful authority to elect a successor to the defendant as justice of ■the peace of Cincinnati township. He avers in his'answer “that there are now five and no more persons in said Cincinnati township performing and exercising the office and duties of justice of the peace,” but he does not aver that this number was authorized or judicially determined under Rev. Stat. 568 (Lan. 900) or any other section of the Revised Statutes, except by reason of the annexation of territory, and by force of Rev. Stat. 568 (Lan. 900) one additional justice is created. This section, however, only provides that he shall execute the duties of his office in the township to which the same is attached in the same manner as if he had been elected for such township, and while the annexation of territory may afford a sufficient reason for increasing the number of justices in a township, the question must, upon application and after public notice, be determined, by the probate judge of the county.

His continuance in office in the township to which it was attached was intended, under this section, only to complete the term of three years for which he was elected and not to create an office for which a successor should be elected and qualified. The demurrer to the answer will therefore be sustained.

Swing and Smith, JJ., concur.


author: PER CURIAM.

text:
    FRAUDS, STATUTE OF — LANDLORD AND TENANT.
    [Hamilton (1st) Circuit Court,
    February 2, 1907.]
    Jelke, Swing and Giffen, JJ.
    C. C. Breuer v. Frederick Berold.
    Remedy of Lessor for Breach of Verbal Lease.
    Part performance under a verbal lease sufficient to take the same out of the statute of frauds, obtains in equity only, and will not avail to render the contract capable of being sued on in a court of,law.
    [For other cases in point, see 4 Cyc. Dig., “Frauds, Statute of,” §§ 89-103. — Ed.]
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court:
    Rowel Crosley, for plaintiff in error.
    Pogue & Pogue, for defendant in error.
   PER CURIAM.

The canse of action as stated in the amended petition is founded upon a verbal contract of lease of certain real estate for a term of one year at a monthly rental of $100, and upon part performance by delivery of possession and by acts of the tenant in setting up certain machinery in the building according to the terms of the contract.' The breach of the contract consisted in the refusal of the landlord to allow other machinery to be moved into the premises or the operation of any of such machinery, whereby the tenant was compelled to and did.abandon the premises. The relief prayed for is damages for the alleged breach of the contract.

The lease was within the statute of frauds, and could not be enforced, unless by part performance it was taken out of the operation of that statute. Grant v. Ramsey, 7 Ohio St. 157, 158, 167.

The only relief to which the tenant was entitled, under the allegations of the amended petition, or in any event after abandonment of tfye premises, was a personal judgment for money only. His right of action depended upon part performance of the contract, the doctrine of which obtains in equity only, and does not avail to fender a contract, which is void by the statute because unwritten or unsigned, capable of Being sued on in a court of law. Kling v. Bordner, 65 Ohio St. 86 [61 N. E. Rep. 148].

The court therefore erred in overruling the demurrer to the amended petition, and in overruling the motion for judgment notwithstanding the verdict. Judgment of the court of common pleas reversed and judgment for plaintiff in error.


author: COOK, J.

text:
    ADOPTION — RES ADJUDICATA.
    [Guernsey (7th) Circuit Court,
    November Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    Thomas Simpson v. William Le Roy Simpson.
    1. Adoption of Child Invalidated only on Clear Proof of Irregularity in Proceedings.
    Where the record or deed of adoption of a child states that it was duly and legally done, in order to invalidate the adoption, it must be affirmatively shown by clear proof that the adoption was Irregular id ■''some essential particular.
    [For other cases in point, see 1 Cyc. Dig., “Adoption,” §§ 22, 23. — Ed.]
    2. Child Adopted in Foreign State may Inherit Lands in this State.
    A child adopted in a foreign state has inheritable capacity to lands situated in this state.
    [For other cases in point, see 1 Cyc. Dig., “Adoption,” §§ 7-13; 3 Cyc. Dig., “Descent and Distribution,” §§ 169-175. — Ed.]
    8. Proceeding Adjudicated by Probate Court Is Res Adjudicata.
    In a proceeding in the probate court to sell three parcels of land to pay debts, all questions that were legally determined in such proceeding as to all the land are res adjudicata in a subsequent proceeding in partition of one parcel not sold in the probate court proceeding.
    [For other cases in point, see 5 Cyc. Dig., “Judgments and Decrees,” §§ 859-S63; 7 Cyc. Dig., “Res Adjudicata,” §§ 92-100. — Ed.]
    [Syllabus by the court.]
    Appeal . from Guernsey common pleas court.
    J. F. Stockdale, for plaintiff.
    C. S. Turnbaugh and W. W. Stewart, for defendant,:
    Adoption. ■ Morrison v. Session, 70 Mich. 297 [38 N. W. Rep. 249; 14 And. St. Rep. 500].
    Adoption laws of Ohio. Quigley v. Mitchell, 41 Ohio St. 375; Phillips v. McConica, 59 Ohio St. 1 [51 N. E. Rep. 445; 1 Am. St. Rep. 753], Descent and distribution. Quigley v. Mitchell, 41 Ohio St. 375; Phillips v. McConica, 59 Ohio St. 1 [51 N. E. Rep. 445; 1 Am. St. Rep. 753] ; Smith v. Carver, 55 Ohio St. 642 [48 N. E. Rep. 1118].
    . Extra-territorial effect. Boss v. Ross, 129 Mass. 243' [37 Am. Rep. 321]; Van Matre v. Sankey, 148 Ill. 536 [36 N. E. Rep. 628; 23 L. R. A. 665; 39 Am. St. Rep. 196]; Williams, In re, 102 Cal. 70 [36 Pac. Rep 407; 41 Am. St. Rep. 163] ; 1 Am. & Eng. Enc. Law (2 ed.) 733.

      Estoppel: Williams, In re, 102 Cal. 70 [36 Pae. Rep. 407; 41 Am. St. Rep. 164]; Van Matre v. Sankey, 148 Ill. 536 [36 N. E- Rep. 628; 23 L. R. A. 665; 39 Am. St. Rep. 196]; Ferguson v. Herr, 64 Neb. 649 [94 N. W. Rep. 542] ; Jossey v. Brown, 119 Ga. 758 [47 S. E. Rep. 350] ; Hopkins v. Antrobus, 120 Iowa 21 [94 N. W. Rep. 251].
    . Authority of probate court. Doan v. Biteley, 49 Ohio St. 588 [32 N. E. Rep. 600]; Sayler v. Simpson, 45 Ohio St. 141 [12 N. E/ Rep. 181].
   COOK, J.

This is an action in partition and is before us on appeal.

Thomas Simpson, the plaintiff, and Elizabeth Simpson were husband and wife and lived a number of years in the state of Iowa, subsequently removing to this county.

After coming to Guernsey county, they acquired three several pieces of real estate, the title to two of which were placed in the pame of Elizabeth and the other in their joint names, and so remained until the death of the wife — the parcel in their joint names being the subject-matter of this action.

While living in the state of Iowa, Elizabeth, the wife, adopted, under the laws of that state, a child two years of age, afterwards known as William Le Roy Simpson, who is the defendant in this action, removing with his adopted mother and her husband to the state of Ohio, and remaining with them until the mother’s death, he then being a little above his majority.

After the death of his wife, plaintiff was appointed administrator of her estate, and as such administrator filed a petition in the probate court of this county to sell all of the real estate to pay debts. In his petition in the probate court he averred that his wife died leaving “him her widower and sole heir at láw having the next estate of inheritance; ’ ’ but further averring that William Le Roy Simpson, whom he made a party defendant in this action, claimed to have some interest in the premises adverse to the interest of plaintiff, and asking that he be required to set it up by answer, that the validity of his claim might be .determined by the court.

William Le Roy Simpson filed an answer in which he averred that he had been duty adopted by Elizabeth Simpson in the state of Iowa under the laws of that state, pleading the law of that state and the facts constituting his adoption. The probate court, upon hearing, found that it was necessary to sell the real estate to pay the debts of the decedent, and further found in the decree upon the petition and answer of plaintiff and defendant, William Le Roy Simpson, and the evidence adduced “That the allegations contained in the answer and cross petition of William->Le Roy Simpson are true, and that the said William Le Roy Simpson is the only heir at law and having- the next estate of inheritance from the said Elizabeth Simpson, deceased, in the premises described by plaintiff in his petition herein.”

The court further finds that said Elizabeth Simpson, deceased, on April 14, 1881, at “What Cheer, Keokuk county, Iowa, adopted the said William LeRoy Simpson as her child, and that he is the only heir at law of said Elizabeth Simpson, deceased, by reason of said adoption, and that he is entitled to the next estate of inheritance from the said Elizabeth Simpson, deceased, in the premises-described by plaintiff in his petition herein; subject to the dower right of said Thomas Simpson.”

The record shows that under this decree the entire premises were ordered appraised and sold. Afterwards, the plaintiff filed a. motion to set aside the order to enable him to file an answer to take his dower interest in money. This motion was granted and the order set aside. Thereupon the plaintiff filed an answer setting up “that he was the widower of said Elizabeth Simpson, deceased, and as such he was entitled to dower in the premises,” setting forth his age and waiving the assignment by metes and bounds, or in rents and profits; “and asks the court that said premises’ may be sold free from his dower estate therein; and that the value of such dower estate may be allowed and paid him in money out of the proceeds of sale.”

The court thereupon issued a new order directing the plaintiff to appraise,- advertise and sell the premises firstly described in plaintiff’s petition, free of the dower interest of plaintiff. The title to the parcel that was directed to be sold as aforesaid was in the name of Elizabeth Simpson alone: It was appraised and sold, the sale approved, the proceeds brought into court; the costs were first ordered to be naid out of the proceeds; next the dower interest of Thomas Simpson, $276.40, paid to him, and the balance of the proceeds plaintiff as administrator ordered to retain, to abide the further order of the court.

This is all of the record in the ease. What was done as to the other two pieces we are not informed. Three questions are made:

First. Was the adoption of the defendant valid under the laws of the state of Iowa?

Second. If it was, did he inherit the real estate in Ohio?

Third. If not, is the plaintiff estopped from claiming- the parcel involved in this action by reason of the proceedings in the probate court ?

As to the first question, it is sufficient to say that we have examined the law of the state of Iowa and the facts pertaining- to the adoption, and we are fully persuaded that the adoption was in all substantial and essential particulars correctly done. We would not hold that the adoption was void except it affirmatively appear that the adoption was in some essential particular irregiilarly made. Jossey v. Brown, 119 Ga. 758 [47 S. E. Rep. 350].

The next question is: Did such adoption in Iowa confer upon the defendant, William Le Roy Simpson, inheritable capacity as to land in this state? This question has never been decided authoritatively, so far as we know, in this state. In Pennsylvania, in the case of Smith v. Derr, 34 Pa. St. 126 [75 Am. Dec. 641], it was practically decided in the negative.

In this case it was held:

“A child born out of lawful wedlock, and legitimated by the law of another state, is not thereby rendered capable of inheriting land in Pennsylvania.
“The fact that inheritable capacity is granted by the law of another. state, cannot change our law of descent.
“It is the fact of birth in wedlock that gives inheritable capacity here, and not any legislative or judicial legitimation. ’ ’

It is true that the question that arose in that case was not the direct one in this case. In that case the party claiming inheritable capacity was born out of lawful wedlock but was duly legitimated by the decree of the court of the state of Tennessee under the laws of that, state and on the petition of her father.

Mr. Chief Justice Lowrie, in the opinion, says:

“So far as our law is concerned,^legitimation by the subsequent marriage of the parents abroad by act of a foreign legislature, or by judicial decree abroad, are all fruitless. If they are allowed to constitute inheritable capacity here, then adoption might have the same effect. ” , -

By reference to this case, it will be seen that the opinion, which is very short, is founded entirely upon the case of Doe v. Vardill, 7 Cl. & Fin. 895-898; 5 B. & C. 438. This case of Doe v. Vardill, which is critically considered in Ross v. Ross, 129 Mass. 243 [37 Am. Rep. 321], was very vigorously contested, being, before the house of lords several times, and although it was finally determined that a person born in Scotland and there legitimatized by reason of the subsequent marriage of his parents in Scotland, they having had their domicile there at the time of the birth, could not inherit land in England. That decision, however, was made, as shown by the opinions of Justice Little-dale, Chief Justice Tindal and of Lord Brougham and Lord Cottenham, upon the statute of Merton and upon the settled policy of England, that no one had inheritable capacity born out o.f lawful wedlock, whether within or without its jurisdiction. It was unhesitatingly admitted that the lawr of the domicile at the time settled domestic relations: but when it came to the question of inheriting property, that was special in its nature and the law of-England must control.

Mr. Justice Littledale said:

“One general rule applicable to every course of descent is, that the heir must be born in lawful matrimony. That was settled by the statute of Merton, and Ave cannot allow the comity of nations to prevail against it. The very rule that a personal status accompanies a man everywhere, is admitted to have this qualification, that it does not militate against the law of the country where the consequences of that statup are sought To be enforced. Here it would militate against our statute law to give effect to that status of legitimacy acquired by the lessor of plaintiff in Scotland. He cannot therefore be received as legitimate heir to land in, England.” 5 B. & C. 455.

Chief Justice Tindal, in delivering the opinion of the judges after the second trial, said:

“The grounds and foundation upon which our opinion rests are briefly these:
‘ ‘ That we hold it to be a rule or maxim of the law in England, with respect to the descent of land in England from father to son, that the son must be bora after actual marriage between his father and mother; that this is a rule juris positivi, as are all of the laws which regulate succession to real property, this particular rule having been formed for the direct purpose of excluding, in the descent of land in England, the application of the rule of the civil and canon law, by which the subsequent marriage between the father and mother was held to make the son born before marriage legitimate; and that this rule of descent, being a rule of positive law .annexed to the land itself, cannot be allowed to be broken in upon or disturbed by the law of the country where the claimant was born, and which may be allowed to govern his personal status as to legitimacy, upon tbe supposed ground of the comity of nations.” 7 Cl. & Fin. 925.

The chief justice then proceeds to make an elaborate statement of the statute of Merton and the circumstances under which it was passed, showing the settled policy of England as to the law of descent.

It was upon this ground that Lord Brougham, though not wholly convinced as he stated to the house of lords, waived his objections to the judgment for the defendant; as did also Lord Cottenham, 7 Cl. & Fin. 939, etc., and 957.

In the case of Don’s Estate, 4 Drewry 194, Vice Chancellor Kindersley declared that the general principle was, that “the legitimacy or illegitimacy of any individual is to be determined by the law of that country which is the country of his origin; if he is legitimate in his own country, then all other countries, at least all Christian countries, recognize him as legitimate everywhere;” and that the ground of the decision in Doe v. Vardill was, that, admitting the personal status of legitimacy, the law of England attached to land certain rules of inheritance which could not be departed from. “Therefore, assuming that a son born in Scotland before marriage of his parents domiciled there, and there legitimate in consequence of their subsequent marriage was legitimate all over the world, at any rate in England; yet as he could not inherit land in England from his father or from any other person, so no other person could succeed to him by inheritance except his own issue.”

In Shaw v. Gould, L. R. 3 H. L. 55, 70, Lord Cronworth said of Doe v. Vardill, supra:

“The opinions of the judges in that case, and of the noble lords who spoke in the house, left untouched the question of legitimacy, except so far as it was connected with succession to real estate. I think they inclined to the opinion that for purposes other than succession to real estate, for purposes unaffected by the statute of Merton, the law of the domicile would decide the question of status. No such decision was come to, for no question arose except in relation to heirship to real estate. But the opinions given in the case seem to me- to show a strong bias toward the doctrine that the question of status must, for all purposes unaffected by the feudal law, as adopted and acted on in this country, be decided by.the law of the domicile.”

In the case of Ross v. Ross, supra, Mr. Chief Justice Gray, in the opinion, says:

“The most accomplished commentators on the subject, English and American, are agreed that the decision in Doe v. Vardill, which has had so great an influence with English judges, does not rest upon general principles of jurisprudence, but upon historical, political and constitutional reasons peculiar to England.” Westlake’s Private International Law Secs. 90-93; 4 Kent’s Com. 413, note d, etc. “Upon questions of comity of states, considerations derived from the feudal law, from an act of parliament of the time of Henry III, and from the constitution and policy of the English government, have no weight in Massachusetts at the present day.”

So in this state. Our legislature as early as 1805 passed the act which is now Rev. Stat. 4175 (Lan. 6872), which has remained ever since in substantially the same terms. Then it was enacted in the act “regulating the course'of descent and distribution of personal property;” now it is found in the chapter upon descent and distribution generally.

In Morris v. Williams, 39 Ohio St. 554, it was held:

“The issue of a slave marriage, though their parents die before the emancipation proclamation, are, under the statutes of this state, lawful heirs of their father as to lands situated in this state.”

Mr. Judge Okey in delivering the opinion of the court, after referring to this statute, says, page 557:

“We need not determine as to the precise effect of the Yirginia marriage. If we assume it even to have been void, the ease, is controlled by the provision quoted. If it was voidable, the case is still controlled by the statute, if, indeed, any such provision as to a voidable marriage was necessary. And clearly, it is immaterial whether the marriage, ‘null in law,’ took place in this state or elsewhere.”

It is difficult to see' why the decision in this case, which refers to the latter clause of Rev. Stat. 4175 (Lan. 6872), and which is conclusive of the question as to the general effect of that clause, should not have equal force to the former clause.

We are therefore of opinion that the case of Smith v. Derr, supra, based as it is entirely upon Doe v. Vardill, supra, and upon which plaintiffs in this case place so much stress in their argument, and upon which they almost exclusively rely, has no force and effect in our law whatever.

It having been determined that there is nothing in the policy and •law of our state which restricts inheritable capacity to children born in lawful wedlock, the question is, Can a child duly adopted in a foreign state inherit from its ancestor real estate situate in this state? The general principle is, that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified and made capable to take certain rights in that other’s property is fixed by the law of the domicile; and this status and capacity are to be recognized in every state, so far as they are not inconsistent with its own laws and policy.

See authorities cited in Ross v. Ross, supra, 246, 247:

“If a marriage (in the proper sense of the term * * * ) is celebrated in one state, according to the form prescribed by its laws,' between persons domiciled there and competent to intermarry, it is universally admitted that the woman must'be recognized everywhere as the lawful wife of the man and entitled as such, upon his death, to such dower in his lands as the law of the state in which they are situated allows to a widow; although it is this law and not the law of the domicile which fixes the proportion that she shall take.” Same authorities.

As to foreign divorces, it is settled in most of the states “that a decree of divorce rendered in another state, in which the legal domicile of the parties is at the time, and according to its laws, * * * is valid here, and conclusive in a suit concérning the husband’s interest or the wife’s dower” in the real estate where it is situated.

Such is the law of this state. McGill v. Deming, 44 Ohio St. 645-656 [11 N. E. Rep. 118].

We have also seen in the discussion of the case of Doe v. Vardill, supra, that the principle was recognized in that case, that a child’s status is fixed by the law of the domicile of the parent, and if the child is legitimate under the law of the domicile he is legitimate everywhere and may have inheritable capacity in all states except those the 'laws and policy of which preclude such capacity.

What, then, is the policy of our own state? Could it be more signally set forth than by Rev. Stat. 3137 (Lan. 4837) and Rev. Stat. 3140 (Lan. 4845) providing for the adoption of children, which gives to such adopted children, even as to capacity to inherit, substantially the same rights as are possessed by children born in lawful wedlock? Can it be said that our statutes of descent and distribution when they speak of children do not mean children by adoption, wherever adopted? Does the comity between the states and the laws of the different states mean nothing? We have said, if not in terms, by fair inference (Morris v. Williams, supra), that by the subsequent marriage of the parents, children illegitimate become legitimate wherever the marriage takes place. • ■

Can yon say to other states: “Yon should recognize children adopted in our state as children for all purposes (Rev. Stat. 3140 [Lan. 4845]) including inheritable capacity, and deny the same rights to children adopted in such other states?” Certainly not. And this holding finds favor in nearly all, if not all, of .the reported decisions to which attention has been directed by counsel or that we have been able to find.

In the case of Ross v. Ross, supra, to which we have referred so frequently, the syllabus is:

“The status of any person, with the inherent capacity of succession or inheritance, is to be ascertained by the law of the domicile which creates the status, at least when the status is one which may exist under the laws of the state in which it is called in question, and when there is nothing in those laws to prevent giving full effect to the status and capacity acquired in the state of the domicile.
“A child adopted with the consent of its father and the sanction of a judicial decree, in another state, where the parties -are domiciled at the time, under a statute by. which a child so adopted has the same rights of inheritance as legitimate offspring, in the estate of the adopting father, is entitled, after the adopting father and the adopted child have removed their domicile into this coínmoñwealth, to inherit here the real estate of such father as against his collateral heirs: although his wife has given no formal consent to the adoption; as is required under the statutes of adoption of this commonwealth.”

The last question is: What effect shall be given to the proceeding to sell the real estate in controversy in the probate court? The conclusion to which we have arrived makes it unnecessary to decide that question, but as counsel has made it we have concluded to do so.

The plaintiff was the administrator of his deceased wife’s estate. He filed his petition, as such administrator, to sell the three pieces of land. He made the defendant a party setting forth, he claimed, some interest in the real estate sought to be sold, and required him to answer. He did answer, and set up the same claim as he has done in this court, that, as the adopted child of the deceased, he was entitled to all the real estate subject to the dowei interest of the plaintiff. The probate court decided precisely as this court has decided, that the adoption was valid and that defendant inherited the property.

The issue was clear and distinct and fully litigated. Why, then, is not the decision of the probate court res adjudicata ? Counsel have informed us of no reason, and we cannot conceive of any except it be, that the parcel of land now in controversy was not sold; but the finding and decree of the court was made as to all three pieces.

Furthermore, so far as wp are informed by the record, the proceeding- in the probate court is still pending. No final disposition has been made of the case. Indeed the plaintiff has waived that proceeding a'nd brought this action; but he cannot waive any question that was properly decided in 'that proceeding but is bound by it, and we think the decision of the probate court goes to all the land that was sought to be sold, and the plaintiff is estopped from again litigating it. That the probate court had jurisdiction to hear and determine ■ the questions there made, there can be no doubt. Doan v. Biteley, 49 Ohio St. 588 [32 N. E. Rep. 600].

The decree of the court is, that the defendant, William Le Roy Simpson, is entitled to the real estate sought to be partitioned, subject to the dower interest of Thomas Simpson.


author: DAY, J.

text:
    DOW TAX — INTOXICATING LIQUORS.
    [Putnam (3rd) Circuit Court,
    October Term, 1903.]
    Day, Mooney and Norris, JJ.
    Christ Diehl Brewing Co. v. Ralph G. Spencer, Treas., et al.
    STOREHOUSE OP BREWERY. NOT TAXABLE AS TRAEPICKING IN LIQUORS.
    A manufacturer of, and wholesale dealer in, beer? who maintains a storage house at a place where beer is stored, and from where deliveries are made only to local retail dealers upon orders solicited by the traveling sales agent of the manufacturer, is not, thereby a trafficker in intoxicating liquors within the meaning of Rev. Stat. 4364-9 (Lan. 7248), and, therefore, not subject to the Dow tax provided for therein.
    [For other cases in point, see 5 Cyc. Dig., “Intoxicating Liquors,” §§ 86, 87.— Ed.]
    [Syllabus approved by the court.]
    Appeal from Putnam common pleas court.
    B. F. Enos and J. P. Bailey, for plaintiff.
    Risser & Smith, for defendants.
   DAY, J.

This ease comes into this court on appeal. The petition is for injunction to restrain the county treasurer of this county from collecting certain taxes and assessments and penalties which are. alleged to be illegal and unauthorized.

The plaintiff declares in its petition that its business consists wholly in the manufacture and wholesaling of beer, which business is carried on at its manufactory and office in Defiance, Ohio, and by its traveling salesmen employed to solicit business in the counties of Defiance and Putnam in said state and elsewhere. That it listed and made true returns of all its personal property in Monroe township, Putnam county, Ohio, for the years 1899, 1900 and 1901 and was duly and fully taxed and assessed thereon, and fully paid said taxes and assessments and fully paid for those years all taxes and assessments legally levied against its hianufacturing business. Plaintiff says that the county auditor and his predecessors have illegally assessed against it for the years 1899, 1900 and 1901 a sum aggregating $700 and charged the same on the tax duplicate of Putnam county, Ohio, together with penalties amounting to $140, and that each and all of said assessments and penalties are wholly illegal and without authority of law.

Said county treasurer is attempting to collect the amount of this illegal tax and assessment and penalties, and has entered upon premises in Putnam' county, owned and controlled by plaintiff, and has dis-trained certain goods and chattels of plaintiff for the payment of said sum, and will, unless enjoined, sell said property as upon execution at law. And plaintiff prays that said defendant may be enjoined ■ from doing any of those acts, and from collecting or attempting to collect said illegal taxes and assessments and penalties or any part thereof and asks that the same may be declared to be illegal and void.

The answer admits the official character of defendant; that plaintiff has its manufactory office and place of business in Defiance, and admits that it listed and made return of all its personal property in Monroe township, subject to taxation for the years 1899, 1900 and 1901 under the laws of Ohio, to the assessor of Monroe township, Putnam County, Ohio, and that it.paid to the treasurer of Putnam county all taxes and assessments levied thereon. The answer denies that plaintiff’s business consists wholly in the manufacturing and wholesaling of beer, and that said business is carried on in Defiance, Ohio,'by its traveling salesman, and asserts that plaintiff, during the years 1899, 1900 and 1901, was -conducting the business of trafficking in intoxicating liquors on in-lot No. - in tbe village of Continental, Putnam county, Ohio, and that sales of intoxicating liquors have been and were made at said place of business during said years by persons employed by the plaintiff for said purpose, both at wholesale and retail, and that plaintiff has refused to pay and has not paid the taxes and assessments on-said business during the years 1899, 1900, and 1901.

- That said county auditor upon satisfactory information of these facts entered said tax and assessments and penalties upon the duplicate and upon the treasurer’s copy thereof under Rev. Stat. 4364-14 (Lan. 7253), all of which, and the collection thereof is lawful, and asks that if said amount be not paid by plaintiff that the goods and chattels held and distrained be sold and the proceeds applied in payment thereof. All else in the petition is denied. The allegations of the answer are denied by the reply.

This ease, upon the issues thus tendered and the evidence adduced, is submitted to the court.

It is claimed in the answer that the plaintiff in the years 1899, 1900 and 1901 was engaged in, and carried on, the business of trafficking in intoxicating liquors at the village of Continental, Putnaffi. county, Ohio, as contemplated by Rev. Stat. 4364-9 (Lan. 7248), known as the Dow law, — this being pleaded in defense of the remedy sought in the petition, and upon it defendants claiming the right to recover said amount of tax, assessments and penalty. This allegation of the answer is denied in the reply; so, upon the fact as to whether the business claimed in the answer to have been carried on by plaintiff was thus carried on at Continental in the years named, rests the proper determination of the case.

The law in such case has been clearly settled by the Supreme Court in a number of decisions and there can be very little, if any, difference of opinion as to what the law applicable is.

In the ease of Reyman Brewing Go. v. Bristor, 12 O. F. D. 371 (92 (Fed. Rep. 28), the circuit court of the United States held that,

‘ ‘ A manufacturer of beer wh© leases a room in a cold storage warehouse at a certain railroad station, in which to store beer shipped to that station, which has not been ordered in. advance, and from which beer is delivered which is sold upon solicited orders, and from which it is sometimes sold directly, is a trafficker subject to taxation.”

This was a case in which the provisions of Lan. 7247 (B. 4364-8) were applied to the facts, and among the facts to be found and that were dwelt upon by that court were these — I quote again from the case, page 373:

“The packages not delivered directly from the railway station to purchasers are delivered from the said storage house or room, upon orders solicited as aforesaid, and upon sales then and there at said storage room made,” and again, “in other instances such collections are made by said agent, Bert Meyers, at the time of sale and delivery at said storage room. * * * The barrels and cases of beer described in the bill [petition] were * * * placed in the storeroom above mentioned and were to be there sold and delivered,” and again, page 372, “Said agent also makes sales of said packages at, and delivers the same from, the place where stored at Steubenville.”

The court, upon these facts, held the brewing company to be a trafficker in intoxicating liquors, having a place in the city of Steuben-ville where the traffic is carried on within the meaning of the Dow law.

The case of Bellefontaine (Vil.) v. Vassaux, 55 Ohio St. 323 [45 N. E. Rep. 321], is an interesting one, and while the proposition upon which the case was decided is not presented here, the law, as announced by the Supreme Court, is in line with other decisions of that court, on the proposition presented in the ease at bar, and is decisive of it. The syllabus is as follows:

“1. The general rule is, that title to goods intended to be transported passes from the vendor to the purchaser upon delivery by the former to a common carrier, consigned to the purchaser, whether paid for or not. But if the vendor consigns the goods nominally to the purchaser, but actually in care of his own storekeeper, who is to retain them in control and give possession to the purchaser only on payment of the purchase price, then the delivery to the common carrier is not, in law, delivery to the purchaser.
“2. Under such circumstances, the shipment being in effect to the vendor himself, the delivery, when it occurs, would be at the storehouse. of the vendor; and the transaction would not be a completed sale at the point of shipment.
“3. As a general rule, a sale of personal property is not completed when anything remains to be done to identify the thing sold, or discriminate it from other like things.”

The effect of this holding is, that the place where the seller relinquishes possession and control of the beer to the purchaser and the purchaser assumes possession and control thereof and pays the purchase price is to be regarded as the place of sale; and that is the single question presented in the case under consideration: Was the plaintiff company the keeper of a place where intoxicating liquors were sold at retail other than at the manufactory, etc. 1

In the case of Hanson v. Luce, 50 Ohio St. 440 [34 N. E. Rep. 435], the court defines traffic contemplated by the statute as:

“Consists in the purchase and sale or barter of the liquors named therein, and the place of the traffic is the place where such purchase, sale or barter is had, and not the place where the liquors are stored for cooling or safe-keeping.”

The facts which called forth this definition are:

“That the beer was put from the ears into the cooler where it remained until delivered by the driver of the be.er wagon to customers, but no beer was sold at said cooler. The traffic was carried on elsewhere than at the cooler which was not a place of business but a place for storage, there being no buying and selling there.

In the case of Jung Brewing Co. v. Talbot, 59 Ohio St. 511 [53 N. E. Rep. 51], it is not alleged in the petition or claimed and it does not appear that the sales were made' at the manufactory. The driver of the beer wagon made the sales to the retail dealers. The court held that if the customers had made their purchases or received the beer at the storage house, then the storage house would undoubtedly be the place of traffic, and that the driving of the wagon and the hauling of the beer has reference merely to the method of carrying on the business. That in determining the place of traffic the delivery related merely to the place or1 building from whence the delivery was made, and not being in connection with a business on which the proprietor paid the tax as in Hanson v. Luce, supra, but as a separate and independent business of trafficking upon which no tax was paid, when this is done, whether from a wagon or at a place, the condition arises which creates the liability to pay the tax, and so the court announces in its syllabus that—

“A manufacturer of intoxicating liquors who carries on the business of selling them elsewhere than at the manufactory, is engaged in the traffic within the purview of Sec. 4364-9 [Lan. 7248] Rev. Stat. and subject to the tax thereby imposed.”

The cases all hold that the traffic consists in the purchase and sale or barter. The place of traffic is the place where such purchase and. sale or barter is had, or to which it is referred. That the cooler or storehouse at which no buying or selling is done and which is not a place of business but which is used merely as a place of storage and safe-keeping is not a place of traffic, and so, that handling the beer is not the independent business of trafficking in intoxicating liquors as contemplated by the law. The intention of the parties as discovered from their acts controls. When their acts indicate an independent business of trafficking, the payment of the tax cannot be escaped. Then let us apply the law, as settled by the Supreme Court, to tbe facts appearing in this case.

The plaintiff brewing company was, during the period named in the petition, engaged in the business of manufactoring and wholesaling beer at its manufactory or brewery in the city of Defiance, Ohio. It had a cold storage house for the storage of its beer in the village of Continental in this county. It shipped its beer by the car load to Continental, took it from the cars and placed it in the storage house. The storage house was in charge of one Phillip "Wolsifer, and from this storage house it was his duty to deliver the beer. The customers to whom he was charged to make these deliveries of beer were those who trafficked in intoxicating liquors at retail, and were subject to the tax imposed by the statute. It appears that he was only thus in charge safely to keep and make deliveries. With fixing prices and making sales he had nothing to do. He was especially instructed not to make sales. It was no part of Wolsifer’s duty to receive from the customers the purchase price of the beer, though at times upon specific order from his employer, the brewing company, or from Mr. Smith, their traveling agent and trade solicitor, he made some collections, but whatever collections were made by him were an additional duty, in no wise referable to the sale or the delivery of the beer, and not in the light of payments and were not payments which in any wise accompanied or accomplished a change of ownership or a change of possession of the property, but were all after the sales and after the delivery and. after ownership of the property and the possession of it had passed to the purchaser, and the collections were made strictly as a collector and in that character, and in no wise as a deliverer, or a seller of beer. He was acting as a collector of claims which had arisen upon promises to pay for property before that time sold and delivered to the purchasers. The money thus collected was by order of his employer placed on deposit to the credit of his employer in the bank at Continental, and these, as the evidence shows, were the acts done and tjie duties performed by Wolsifer under his employment.

A witness, Mr. Ladd, testifies that at one time Mr. Wolsifer sold him a keg1 of beer at the storehouse. This Wolsifer-denies and the evidence tends to show, by the testimony of Wolsifer and Mr. Conn that the witness, Mr. Ladd, was mistaken as to the vendor, and that the beer was purchased by Coons, a retail dealer, and was not sold by Wolsifer. In any event and if it were even sold by Wolsifer, it was not within the scope of his authonity but was in disobedience of the instructions of his employer who enjoined upon him to make no sales to anybody.

Mr. Christ Diehl is a member of plaintiff’s firm. Mr. Andrew C. Smith is the agent of the firm, whose duty is to solicit^ orders in the territory comprising Continental and to make collections for beer sold. By the testimony of these two witnesses, the storehouse at Continental was a place of deposit from whence convenient delivery might be made to customers at Continental and in that vicinity. The customers were retail dealers and traffickers who were subject to the tax. The trade was solicited through this territory which Mr. Smith says he visited every thirty, days and the sales were made by orders to the home office and there confirmed, and orders went either directly or through the agent Smith to "Wolsifer to make delivery. Each sale was not a specific quantity but the price was fixed and the delivery was ordered to be made from the cold storage house to suit the needs of the customers; that these were the conditions is corroborated by the testimony of other witnesses in the case, but no sale was made, no money was paid at the storehouse, no change of ownership, no change of possession; no right of possession arose because of anything done at the storehouse, or from any act of Wolsifer, the man in charge, that he did do or could do within the scope of his employment or instructions.

The things he did were not to sell or barter or traffic. The storehouse of which he was in charge was not a place of sale or barter, for he made no sales and no sales were made at that place. And so it is the opinion of the court that in no conceivable view of the situation shown by the evidence, and in no sense as defined by the courts can plaintiff be deemed to be a trafficker as claimed by the defendant and as contemplated by the statute, and as such held to- the payment of the tax.

The finding is, therefore, for the plaintiff, granting the perpetual injunction prayed in the petition. Costs are adjudged against the defendant. Execution for costs is awarded, and the ease is remanded for execution.

. Mooney and Norris, JJ., concur.