text:
    VENDOR AND PURCHASER.
    [Hamilton (1st) Court of Appeals,
    February 7, 1916.]
    Jones, Jones and Gorman, JJ.
    Laudt, Sr., et al. v. J. F. Parchmann.
    1. Real Estate Contract Insufficient Unless Containing Essential Terms of Agreement Clearly Expressed.
    A contract for the purchase of real estate is not sufficient, under the statute of frauds, unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself, or some other writing to which it refers, without the necessity of resorting to parol proof.

      2. Duplicate Receipt for Earnest Money Paid on Hand Not Sufficient.
    A duplicate receipt for earnest money which has been paid, which duplicate receipt has been signed by the intended purchaser and retained by the owner, and which expresses no contract for purchase except by implication, and fixes no terms whatever in regard to a sale beyond the mere naming of the price and identifying of the property, and which was not intended by the parties to embody such terms or to operate as a contract, is not a sufficient contract, under the statute of frauds, to bind the purchaser.
    Error.

      Edward A. Hafner and W. G. Muhlhauser, for plaintiffs in error.

      G. J. McBiarmicL, for defendant in error.
   JONES (O. B.), J.

The contract under which plaintiffs were employed by defendant, as real estate agents to sell his house and lot, bound defendant to pay them a commission of two per cent, on the gross amount of such sale, if said property was sold during the period fixed in said contract. Plaintiffs found a party who in anticipation of signing a contract for the purchase of said real estate made a payment of fifty dollars as earnest money to defendant and took his receipt for same. Afterwards said intended purchaser changed his mind and refused to sign the contract for purchase or to complete the purchase. He had, however, signed a duplicate of the receipt for the earnest money which had been paid, which duplicate receipt was retained by defendant, and which is in the following words:

"March 6-11, Cincinnati, 0.
“Received from August F. Nolte the sum of .fifty dollars as part payment- or earnest money on property belonging to John F. Parchmann at 4433. Colerain Avenue, Cincinnati, Ohio, valued at two thousand five hundred and fifty dollars ($2,550). Balance due, two thousand five hundred dollars ($2,500).
“(Signed)
“John F. Parchmann,
“August F. Nolte.

It is contended this is a sufficient contract to bind the purchaser. In the opinion of the court this receipt is not a memorandum of. the agreement between the parties as is required under the statute of frauds, Sec. 8621, G. C. A contract under the statute of frauds is “not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, without the necessity of resorting to parol proof.” Kling v. Bordner, 65 Ohio St. 86 [61 N. E. 148].

This receipt expresses no contract for purchase except by implication. It fixes no terms whatever in regard to the sale beyond the mere naming of the price and identifying the property, nor was it intended by the parties to embody such terms or to operate as a contract, it having been agreed that a written contract would be prepared by the real estate agent and signed on the evening after this payment.

No sale was effected, and no enforceable contract was procured, and plaintiffs therefore were not entitled to recover under the terms of their contract .with defendant. Pfantz v. Humburg, 82 Ohio St. 1 [91 N. E. 863; 29 L. R. A. (N. S.) 533].


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    EXECUTORS AND ADMINISTRATORS.
    [Cuyahoga (8th) Circuit Court,
    February 14, 1911.]
    Marvin, Winch and Henry, JJ.
    William B. Beebe, Adm. v. John A. Canda et al.
    Administrator's Action to Sell Lands Fraudulently Caused To Be Conveyed.
    An administrator may bring his action in the common pleas court ■ for the sale of lands to pay his decedent’s debts and include in such action lands to which the decedent never held title, but for which he paid and fraudulently caused to be conveyed to another with intent to defraud his creditors.
    ERROR.

      Wm. B. Beebe, W. C. Rogers, J. W. Bowes and W. 8. Kerruish, for plaintiff in error.

      Hart, Canfield & Croke and George C. Hansen, for defendants.
   MARVIN, J.

On September 12,1907, John Canda, theretofore a resident of Cuyahoga county, Ohio, died intestate, leaving several heirs at law, all of whom are made defendants in this action. One of •said heirs at law, viz, John A. Canda, who is a son of the said deceased, was appointed by the probate court of said county as administrator of said decedent’s estate; later he was removed from said administration, and thereafter the plaintiff was appointed by said probate court to complete such administration.

At the time of his death said John Canda was indebted to various persons, and there now remains unpaid, of such debts, on the aggregate of $3,000 or more. There are no personal assets of said estate available for the payment of any part of said ■debts, or the costs and expenses of the administration of the decedent’s estate.

Said decedent held legal title to no real estate at the time of his death, nor had he any equitable title to or interest in any real estate, which could have been maintained by him, or which can be maintained by his heirs at law.

The petition further alleges that at the several times when estate, which it alleges were all purchased and paid for by the ■decedent, and by him caused to be conveyed to the parties now holding the legal title thereto. None of these parcels was conveyed by the defendant to the present holder of the legal title.

The petition further alleges that at the several times when these parcels were so purchased, and paid for by the decedent he was largely in debt and that he purchased and paid for each of them, causing the title in each case to be 'conveyed to another, for the purpose of concealing his assets and to hinder, delay and defraud his creditors.

The legal title to one of the parcels described in the petition is now in Mabel G. Hill. As to such parcel we find no evidence that she did not pay for such parcel taking the title in good faith, and as against her the petition is dismissed. '

The legal title to another parcel is in Joseph J. Ptak; this is described as being in Cleveland, Cuyahoga county, Ohio, and consisting of sub-lots 377 and 378 in J. M. Hoyt’s allotment. This was conveyed to said Ptak by Barbara Canela, now deceased, who then held the legal title to said premises by devise under the will of her deceased husband, Jan Canda, Who obtained his title by deed-from the said decedent, John Canda; such conveyance was made for the purpose of securing payment of money loaned by. said Ptak to said John Canda which said money has been paid to said Ptak, so that he makes no claim to the ownership of said premises.

The said Barbara Canda left a will, which was duly probated, by which she bequeathed her property (except her home on Iona street, which she demises to John A. Canda and Edward Canda) to the defendant John A. Canda, so that as between the defendants Joseph J. Ptak and John A. Canda the latter is the owner of the said two lots.

The legal title to the other parcel of real estate described in the petition, viz.: “situate in Cleveland, Cuyahoga county, Ohio, and being the westerly 40 feet of sublot No. 8, in Bateman & Ingham’s allotment of part of original lot 56 of Brooklyn township” is in the defendant John A. Canda by deed to him from "William T. Ingham and wife, dated April 6, 1907.

Having earlier in this opinion disposed of the land standing in the name of Mabel Gr. Hill and having shown that Joseph J. Ptak has nothing bnt the naked legal title to the two lots in the Hoyt allotment, we come to a consideration of the rights of the defendant John A. Canda in the two lots in the Hoyt allotment, and the 40 feet parcel in the Bateman and Ingham allotment.

We have given careful consideration to the evidence presented as to the property used in payment for these parcels.

We do not feel that it would be profitable to go into the details by'which we reach the conclusion, which we do reach, that the evidence is clear and convincing that the Hoyt lots, when they ivere conveyed to Jan Canda by John Canda, were not paid for by said Jan Canda, from whom the legal title went by will to Barbara Canda, and from her to John A. Canda, by will, as hereinbefore stated.

Said John Canda was then in debt to such an extent that he made this conveyance for the purpose of concealing his assets and defrauding his creditors and this conveyance being thus tainted with fraud, the title derived by Barbara under the will of Jan, and the title derived by John A., under the will of Barbara, each is tainted with the same fraud, and therefore said premises are liable in a proper proceeding to be subjected to the payment of the debts which John owed at the time of his death.

We also reach the conclusion that the 40 foot parcel, being the first parcel described,™ the petition, was purchased and paid for by said John Canda; that the building now on said last named premises was erected at the expense of said John Canda, except to the extent that money was furnished by the defendant, the Pearl Street Savings & Trust Co., for which it holds a good and valid mortgage; it follows that, subject to said mortgage, said last named premises are liable in a proper proceeding to be subjected to the payment of the debts owing by said John Canda at the time of his death. ,

That this is so, is established by the decision of Shorten v. Woodrow, 34 Ohio St. 645, where it is said in the second paragraph of the syllabus:

“An insolvent debtor purchased real estate and with the fraudulent intent to conceal from bis creditors bis interest or ownership therein caused the vendor to convey the premises to a third person, who at the debtor’s request conveyed the same to the latter’s wife.
“Held: That the wife in equity holds the legal title to the premises conveyed subject to the right of her husband’s creditors to subject the same to the payment of their claims.”

This holding is made upon the well established principle of equity that a debtor will not be permitted by fraud to cover up or conceal his property in such wise as to prevent the application of it to the payment of his debts.

The question still remains whether the present action can effect the purpose of subjecting the property named in the petition, and now held, as hereinbefore pointed out. This question is not free from doubt, and has given us much difficulty.

The statutory authority as it existed at the commencement of this action, under which the plaintiff would be authorized to sell real estate, for the payment of debts, and the method of proceeding, if found in Sec. -6136 Rev. Stat. to and including Sec. 6166.

Section 6139 R. S. (See. 10777 G. C.) reads in part:

‘ The real estate liable to be sold as aforesaid, shall include all that -the deceased may have conveyed with intent to defraud his creditors, and all other rights and interests in lands, tenements and hereditaments,” etc.

Section 6140 R. S. (Sec. 10778 G. C) reads:

‘ ‘ If land is to be included in such action which has been so fraudulently conveyed, the executor or administrator may either before or at the * * * same time bring an action for the recovery of the possession of such land; or he may in his action for the sale thereof allege the fraud and have the fraudulent conveyance avoided therein; but when such land is included in the application, before a recovery of the possession thereof the action shall be in the court of common pleas.”

The present action was begun in the court of common pleas, and though the theory of the plaintiff in his petition seems to be was under the first authority given in the section, an for the recovery of the possession of the lands described in tbe petition, we tbink tbe allegations are sucb that if a cause of action is stated for tbe recovery of tbe possession, they are sufficient to entitle the plaintiff to an order to sell, treating tbe action as brought under authority of tbe provision in the latter clause of the section in the words, “He may in bis action for tbe sale thereof allege tbe fraud and have the fraudulent conveyance avoided therein. ’ ’

Applying this to tbe two lots in tbe Hoyt allotment, which we find were fraudulently conveyed by John Canda to bis father Jan Canda, as Ptak makes no claim to them, avoiding tbe deed from John to Jan, brings this land within the clear provisions of the statute authorizing the sale of the land fraudulently conveyed.

As to the other parcel, the forty feet on which the business block stands, and which was conveyed to John A. Canda by Ingham, it is manifest that the avoidance of this conveyance would leave the title in Ingham, as pointed out in the ease of Shorten v. Woodrow, supra, and so the administrator would be in no better position to give a good title than he was before the deed was avoided.

In the same case it is held that the statute there under consideration, which was the seventeenth section of the act then in force, regulating the mode of administering assignments in trust for' the benefit of creditors, did not include the setting aside of deeds procured by an insolvent debtor, to be made by another than himself, to a grantee for the purpose of defrauding the creditors of the insolvent. That section provided “All transfers, conveyances or assignments made with intent to defraud, delay or hinder creditors, shall be declared void at the suit of any creditor,” etc. The court said in relation to this section, as appears on page 653 of the report, that:

“The conveyance which lays at the foundation of the proceeding, and upon which alone the statute was designed to operate, is the fraudulent conveyance of the debtor himself.. It has no application to a conveyance made by a mere trustee of the legal title, although such conveyance is made at the instance of tbe cestui que trust, or beneficial owner.’

Section 4196 R. S. (See. 8618 G. C.) in force when this action was brought, provides that:

“Every gift, grant, or conveyance of lands, rents, goods or chattels, tenements, * * * and every bond, judgment or execution made or obtained with intent to defraud creditors of their just and lawful debts or damages * * * sball' be deemed utterly void and of mo effect.”

On the part of the defendant John A. Canda it is urged that the two statutes are so nearly alike that to hold that the former includes only conveyance of the debtor himself and does not include such as he procures to be made by another, must necessarily result in holding that the same is true under the last mentioned; but even if this be true it does not follow necessarily that Sec. 6139 providing that the land to be sold shall include all that the deceased may have conveyed with intent to defraud his creditors and all other rights and interests in lands, coupled with the provisions of Sec. 6140 as to the way in which the action may be brought, may not include such as the deceased fraudulently caused to be conveyed by another person. The fact that the action is to be brought in the court of common pleas, having general equity jurisdiction, when the subjecting of land fraudulently conveyed is sought, whereas the action may be brought in the probate court, having no equity jurisdiction, is significant as tending to show that in one action all the equities may be determined to the end that without unnecessary litigation the administrator may be able to work out the rights of the creditors, as against those claiming under any title tainted with fraud.

It is true that he who fraudulently conveys, or causes to be conveyed lands for the purpose of defrauding his creditors, has no longer any interest in such land which can be enforced by him, or after his death by his heirs at law, but to the extent of their claims’his creditors have an interest in such lands which they can enforce, and there seems no good reason why their rights may not be worked out by an administrator.

In Bloomingdale v. Stein, 42 Ohio St. 168, it was held:

“A executed to B a promissory note and warrant of attorney upon which judgment was rendered, and an execution having been issued on the judgment, the sheriff levied the same on A’s goods. The note was without consideration and A was insolvent when it was executed. In doing and procuring to be done these various acts, both A and B concurred, and their object was to defraud A’s creditors: Held: That the acts were within the statute which provides that all transfers, conveyances or assignments made with intent to hinder, delay or defraud creditors, shall be declared void at the suit of any creditor. ’ ’

It will be noticed that this was before that statute included the words now found in Sec.6343 R. S. (Sec. 11102 G. C. ),viz: “And every judgment suffered by him,” etc.

In the opinion prepared in this case by Judge Okey, at page 171, there is an intimation, at least, of doubt whether the holding in Shorten v. Woodrow is sound, but without saying that it is not, he says, “We have no hesitancy however in saying that we would not' be warranted in this case in placing any strict construction’ upon this remedial statutory provision. The law regards the thing which the debtor has done rather than the means by which he accomplished it; for if he has placed his property in the hands of another to defraud ’his creditors, the creditor is equally injured’ whether the transfer was effected by a formal instrument of writing by means of a fraudulent execution, or by some other device, and equity in either ease, looking through the form to tlm substance of the transaction, will not hesitate to grant relief, in accordance with the evidence, and the object and purpose of the statute. ’ ’

In Ihe cas° of Doney v. Clark, 55 Ohio St. 294 [45 N. E. 316], Judge Fbauek in his opinion, pp. 302 and 303 says:

n “Nor can it be doubted that the powers of executors and administrators are such only as may be conferred upon them by statute. This, however, does not forbid the application of remedial statutes conferring such power of the familiar rule that to the extent which their language will permit statutes of that character are to receive such construction as will accomplish the apparent object of the legislature. ’ ’

Applying the principles announced in the eases to the case before us, it would seem to result in holding that the administrator should be ordered to sell so much of said real estate as is nee-essary to pay the decedent’s debts, and the cost of the administration.

The purpose of the two sections of the statute, 6139 and 6240, is plainly to enable the administrator to obtain in one action authority to convert into money such real estate as ought in equity to be applied to the payment of the debts of the decedent, instead of making it necessary for the creditor to bring the action. And Sec. 6140 provides what shall be done when it is necessary to go into equity to do it.

True, the express letter of the statute does not authorize the subjecting of the real estate, by the administrator, to the payment of debts, where the real estate was fraudulently procured to be conveyed by the debtor, but we think the manifest purpose of the statute does include real estate so conveyed.

In the ease of Doney v. Clark, supra, it was held that though the statute does not expressly authorize it, an administrator of an insolvent estate may maintain an action against a fraudulent grantee of the decedent, for the value of the land fraudulently conveyed, where such grantee has conveyed the land to an innocent purchaser. This, not upon the proposition that such fraudulent grantee was indebted to his grantor, or that the heirs ah, law had any rights in the land or against the grantee, but that good conscience requires that creditors shall not be deprived of their rights by the concurrent fraudulent acts of the debtor and any other person.

We reach the conclusion, therefore, that the lands now standing in the name of Ptak and in the name of John A. Canda may be subjected in this action to the payment of the decedent’s debts.

It appearing that the lands in the name of Ptak will not sell for enough to pay all such debts and the costs of administration, and that the lands now standing in the name of John A. Canda will probably sell for enough for this purpose, after paying off: the mortgage of the Pearl Street Savings & Trust Co. the order will be to sell the last named premises, and the case will be retained for the purpose of determining whether it will be necessary to sell any other property.

Winch and Henry, JJ-, concur.


text:
    SALES.
    [Stark (5th) Circuit Court,
    February 21, 1910.]
    Taggart, Donahue and Marvin, JJ.
    Judge Marvin of the eighth circuit sitting in place of Judge Voorhees..
    Canton Elec. Co. v. Ernest Guirlinger et al.
    Sale of Merchandise in Bulk Void as to Creditors Notwithstanding-Exempt.
    A sale of merchandise in hulk contrary to the provisions of Sec. 6343 R. S., (Secs. 11102 G-. C. et seq.), as amended April 30, 1908 (99 O. L.,.241), is void.as to creditors of the vendor, notwithstanding all the property sold might have been, claimed as. exempt by the vendor.

      Lynch & Day, for plaintiff in error.

      Ed. L. Smith, for defendant in error.
   MARVIN, J.

Guirlinger had a small business establishment in Canton in which he sold at retail, confectionery, fruit, ice cream and the like. The Merchants Commission Co. carried on a wholesale business, selling fruit and other commodities, such as Guir-linger sold at retail. Sage carried on a retail business at Canton, and he was also one of the directors of the Merchants Commission Co. Guirlinger became indebted to various parties, including the Merchants Commission Co., the plaintiff in this action. He was a husband living with his wife; was a resident of the state of Ohio, and was not the owner of any homestead or any property other than the goods and fixtures in his place of business, already mentioned.

In September, 1908, Guirlinger was indebted to the commission company in the sum of about $350. This was for goods which he had purchased from time to time from the company, and though he paid along from time to time, his indebtedness continually grew. That is, his payments for the year preceding the month of September, 1908, had been less than his purchases, so that his account' was steadily growing. The company frequently called upon him for payments which they ought to get, and called his attention to the fact that his debt to them was increasing all tbe time. To this be answered on several occasions, that “whatever happens to me, yon shall be paid.” In September, 1908, he went to Mr. Wachter, secretary, treasurer and manager of the Merchants Commission Co., and said to him, ‘ ‘ I am all in, ’ ’ and he proposed to pay the company his debt to it by turning over all the merchandise and fixtures in his little store. An attachment had already been levied by another creditor of Guirlinger on this property for the sum of $75 and thereupon Wachter, acting for the company, paid the attachment creditor his $75 and took all the merchandise and fixtures in Guirlinger’s store in payment of his indebtedness to the company, together with this attachment debt.

The plaintiff was at the time of this sale a creditor of Guir-linger’s, and in October, 1908, took judgment against him for the amount of its claim, and issued execution, which was returned “no goods.” The Merchants Commission Co. subsequently went into the hands of a receiver, and the plaintiff' seeks to have the sale by Guirlinger to the commission company treated as void, and to have his claim paid out of the property which Guirlinger sold to the commission company. On the day after Guirlinger sold to the' commission company, it sold all of the goods which it purchased from Guirlinger to the defendant, Frank Sage, and he paid in money the full value of 'the goods. The plaintiff seeks to have the sale by Guirlinger to the commission company and by it to Sage, declared void, and to have' judgment against each for its pro rata share of the value of the goods which had belonged to Guirlinger. The suit is brought under favor of Sec. 6343 R. S. as amended April 30, 1908 (99' O. L. 241), and'the petition avers facts which are set out in the third paragraph of that section, on page 242, that is, that the sale was not made in the ordinary course of trade in the regular and' usual prosecution of the seller’s or transferrer’s business; that the sale or transfer was of an entire stock in bulk, and therefore, in the language of the statute the sale must “be presumed to be made with the intent to hinder, delay or defraud creditors within the meaning of the section, unless the seller or transferer shall, not less than seven days previous to the transfer of the stock of goods sold or intended to be sold, and the payment of the money therefor, cause to be recorded in the office of the comity recorder of the comity in which such seller, or transferrer conducts his business, notice of his intention to make such sale.’’

No such notice was given in this case. Attention is called to this because it is urged here that the general creditors of Guir-linger suffered nothing by reason of this sale, because it is said that since he was a resident of Ohio, a husband living with his wife, and not the owner of any home or indeed of any other property, none of his creditors could have received any payment out of this property, because he could have claimed it all as exempt from execution, and that if he chose to waive that right in favor of his creditor, the commission company, there was no prejudice to any other of his creditors. Attention is called to this also, because the language is, “Every sale or transfer of any portion of a stock of goods, wares or merchandise, otherwise than in the ordinary course of trade,” etc., whereas the greater part of the property sold to the commission company was the fixtures. But we think whatever may be said as to this paragraph of the section, the first paragraph of the section authorizes the plaintiff to have the relief, as against the commission company, sought in this action. This reads:

“Every sale, conveyance, transfer, mortgage or assignment, made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them against himself or themselves in contemplation of insolvency and with a desire to prefer one or more creditors to the exclusion in whole or in part of others, shall be declared void as to the creditors of such debtor or debtors at the suit of any creditor or creditors, ’ ’ etc.

It will be noticed that the transferring of property mentioned in this paragraph is not in any wise affected by the fact that the debtor transfers property to his creditor which he might have claimed as exempt from execution.

The. second paragraph provides in these words:

“Provided however, that the provisions of this section shall not apply unless the person or persons to whom such sale, conveyance, transfer, mortgage or assignment be made, knew of such fraudulent intent on the part of such debtor or debtors,” etc.

We bold that the commission company when it accepted this property in payment o| its claim against Guirlinger, knew of his insolvency, and knew it from the facts which have already been stated in this opinion, and therefore, the sale to it was void as against the other creditors of Guirlinger. The sale by the commission company to Sage was not in payment of any antecedent debt owing to him by anybody. He paid all that the property was worth' and is entitled to hold it. The value of the property is held to be the amount which Guirlinger owed to the commission company at the time of the sale of it, and a decree will be entered for an accounting by the commission company, or its receiver, of this amount and the payment to the plaintiff of its'pro rata part thereof.

Taggart and Donahue, JJ., concur.


author: HENRY, J.

text:
    APPEAL — MECHANICS’ LIENS.
    [Cuyahoga (8th) Circuit Court,
    November 26, 1906.]
    Henry, Winch and Marvin, JJ.
    Anton Jesionowski v. John Wismiewski et al.
    •Action to Foreclose Mechanic’s Lien and for Money Judgment Ap-pealable.
    An action to foreclose a mechanic’s lien in which a personal judgment is asked in connection therewith, is not an action for money only and is appealable.
   HENRY, J.

In the appeal ease of Anton Jesionowski v. John Wismiewski, and the error case in which the parties are reversed (the plaintiff in the appeal case being the defendant in the error case, and the defendant in the appeal ease being the plaintiff in error in the error ease), the action as originally begun was an action to foreclose a mechanic’s lien and to obtain a personal judgment for the amount secured by the lien. After the trial in the court below and bond given for appeal, a motion was made to strike the appeal bond from the files upon the theory that the case was-not appealable. And the court below granted that motion, and for its action in that behalf the error case here is prosecuted.

We think the judgment and order in that matter should be reversed. We hold that this is a case that is properly appeal-able, and that therefore when the bond was filed in the court below it was appealed and the court below lost all jurisdiction of the matter. Our grounds for thinking that the case is appeal-able — notwithstanding the decision in the case of Grapes v. Barbour, 58 Ohio St. 669 [49 N. E. 306], which is not a mechanic’s lien case, but an action for foreclosure of a mortgage— our grounds, I say, will presently be shown. The syllabus in that case is as follows:

“If in an action for the foreclosure of a mortgage and for a personal judgment for the money claimed to be due upon the demand which it secures, the journal entry in the court of common pleas shows that before the action is tried, the plaintiff, by leave of court, withdraws the prayer for the personal judgment, and the court proceeds to find the amount due and to decree a foreclosure, the mortgagor may appeal to the circuit court.”

And then in the opinion of Judge Shauek, page 674, it is said:

“ It is indispensable, under the provisions of See. 5226, Rev. Stat., that an action, to be subject of an appeal to the circuit court, must be one in which the right to demand a jury does not exist. It is provided in Sec. 5130, that ‘issues of fact arising in actions for the recovery of money only, or specific real or personal property shall be tried by a jury,’ unless such trial be waived or a reference ordered. It is provided in Sec. 5021, that ‘in an action to foreclose a mortgage given to secure the payment of money, or to enforce a specific lien for money, the plaintiff may also ask in his petition, a judgment for the money claimed to be due; and such proceedings shall be had, and judgment rendered thereon, as in a civil action for the recovery of money only. ’ ’

Without reading the remainder of the opinion in that case, I call attention to the fact that See. 5021 R. S. (Sec. 11270 G.. C.), tbe quotation of which in Judge Shauek’s opinion I have just read, is now, so far as it appears in our statutes at all, found in paragraph 8 of Sec. 5058, which reads as follows,

“Claims to foreclose a mortgage given to secure the payment of money or to-enforce a specific lien for money, and to recover a personal judgment for the debt secured by such mortgage or lien”

may be joined as provided- earlier in the- section. Now the words that are left out of Sec. 5058 R. S. (Sec. 11306 G. C. in covering the ground which was formerly covered by Sec. 5021, are concluding words of Sec. 5021 as follows:

“And such proceeding shall be had and judgment rendered therein as in civil action for the recovery of money only.”

Tlwse words are now omitted.

Tt follows, therefore, in that class of actions, as the statutes now stand, where a personal judgment is asked in connection with the foreclosure of a mortgage or mechanic’s lien, that the action is not one for money only, and therefore not triable to a jury, and it is appealable.

So that, the appeal having been once perfected, the court below lost jurisdiction, and the order which was made upon the motion to strike the appeal bond from the files was an order made without any jurisdiction to make it, and it should, therefore, be reversed and we will here render the judgment on that motion which should have been rendered in the court below in this proceeding in error, and that is, that the motion be dismissed for want of jurisdiction.

On the merits of the appeal as tried in this court, the sole issue made is upon the claim that there was no mechanic’s lien taken, because the statutes that applied to that subject at the time the attempt to take it was made were not complied with. The statute as it then existed has since been amended, and we do not think it profitable to spend time in undertaking to construe it at great length now, because it is unlikely that any future ease— am/ cases hereafter to be decided — will turn upon a construction of the statute as it then was. If I should say that we find that no notice to the owner was required at the time this lien was sought to be taken — none was necessary and none was in fact given — it follows that so far as the claim that no notice was given is concerned the mechanic’s lien is good.

It is also claimed that in order to perfect a lien the person against whom the lien is asserted should have been in the .then state of statutes, the owner of the fee, and that an attempt such as was made here must be futile where it is sought to take on a lien on any equitable interest in land, the defendant being merely the owner under a contract and not under a deed of eon-veyanee.

But we hold, as the statutes then were, it ■was permissible and possible to obtain a lien against the estate of a person having only an equity of that character in the lands sought to be subjected to the lien.

Judgment for the plaintiff.

Winch and Marvin, JJ., concur.


author: WINCH, J.

text:
    APPEAL.
    [Cuyahoga (8th) Circuit Court,
    May 17, 1909.]
    Winch, Henry and Taggart, JJ.
    Judge Taggart of the fifth circuit sitting in place of Judge Marvin.
    E. A. Thompson v. James Rosenberg et al.
    Grantee of Owner May Appeal from Foreclosure of Mechanic's Lien.
    In an action to foreclose a mechanic’s lien and for personal judgment against the owner at the time the work was done, to which action the grantee of the owner was made-party defendant, the latter may appeal the action to the circuit court.
    Appeal.

      H. F. Paths and Howland & Niman, for plaintiff.

      H. A. Ka,ngesser, John D. F.ackler, Frank Higley, )tlyler & Turney and Max E. Katz, for defendants.
   WINCH, J.

Thompson brought his action on an attested account, praying for a personal judgment against the defendant, James Rosenberg, for the value of certain material furnished toward the construction of a house upon premises owned by Eosenberg at the time the materials were furnished, and that the amount of said account be declared a lien upon said premises. He also made A. B. Katz and others defendants, alleging that they claimed liens upon said premises and praying that they be required to set forth their claims or be forever barred.

It appears that the defendant, Katz, purchased said premises of Rosenberg; no personal judgment was asked against him.

The judgment being in favor of Thompson and against Eosenberg and Katz, the latter appealed the case to this court, where he is met by a motion to dismiss his appeal on the ground that the case is not appealable.

Motion overruled on authority of the ease of Fleming v. Kirkendall, 31 Ohio St. 568.

Henry and Taggart, JJ., concur.


author: GORMAN, J. Jones (0. B.), J., dissenting.

text:
    APPEAL — MECHANICS ’ LIENS.
    [Butler (1st) Court of Appeals,
    July 14, 1916.]
    Jones, Jones and Gorman, JJ. •
    Frances M. Hollowell v. John D. Schraden et al.
    No Appeal In Actions To Enforce Mechanics’ Liens.
    An action to foreclose a mechanic’s lien is not cognizable in equity and therefore not appealable.
    Appeal.

      Michael Minges and Andrews <& Andrews, for plaintiff.

      Clinton Egbert and Edgar A. Belden, for defendant.
   GORMAN, J.

The plaintiff commenced this action in the court of common? pleas of Butler county to foreclose a mechanic’s lien upon property of the defendant, John D. Schraden. In his petition he; set out that he had furnished materials for the erection of a dwelling house upon a lot of land described in the petition, belonging to John D. Sehraden; that the materials were furnished to John Hoover, who was the principal contractor; that he had not been paid, and that he had taken the necessary steps to secure a lien upon the premises in accordance with the provisions of the statute in such case made and provided. He further averred that the defendant, the Campbell Brothers Manufacturing Company, claimed a mechanic’s lien upon the premises, and asked that they be required to set up their lien in the cause. He further averred that his was the first and best lien upon the premises for the payment of the amount due him, $1,190.97. He prayed that the amount due from said John Hoover to him may be ascertained by the court, and that he be declared to have the first lien upon the premises described in the petition for the payment of said sum; that the priority of such lien may be ascertained together with the priority of the liens of the defendants, John Hoover and the Campbell Brothers Manufacturing Company; and that an order of sale of the premises may be made and that the premises be sold and the proceeds applied to the payment of the liens and other costs; and he prayed for such other relief as was proper.

An answer to this petition was filed. The cause was heard in the court of common pleas and a judgment rendered in favor of the defendant, John D. Sehraden, and dismissing the plaintiff’s petition.

Before the hearing of the cause in the common pleas court the Campbell Brothers Manufacturing Company dismissed its answer and cross petition, disclaiming any lien upon the premises, thereby leaving the cause one between the plaintiff and John D. Sehraden, as to whether or not plaintiff has a mechanic’s lien upon the premises.

Notice of appeal was given in the common pleas court and the cause was brought into this court on appeal. The defendant, John D. Sehraden, has moved the court to dismiss the appeal on the ground that the action is not appealable.

The constitution of the state as amended in September, 1913, provides that the court of appeals shall have jurisdiction on appeal in chancery cases. The Supreme Court in the case of Wagner v. Armstrong, 93 Ohio St. 443 [113 N. E. 397], held in the second paragraph of the syllabus:

“All partition cases were originally cognizable in courts of chancery only and must still be regarded as chancery cases and therefore appealable under such terms and procedure as may be provided by law. ’ ’

The right to a mechanic’s lien is one that is given by statute, 103 O. L. 369. This statute not only gives the method of obtaining a mechanic’s lien, but also provides the method of enforcing the same. Among other things, it provides that unless suit is begun within sixty days after a notice is received from the owner of the premises to the owner of the lien, the lien shall be void. This statute also makes the lien valid for a period of six years from the date of the filing of the affidavit, and it provides for the priorities of the several liens that may be taken, whether liens of the head contractor, sub-contractor, material-men or laborers; and by provision of Sec. 14 of the act the method of bringing an action and the kind of an action to be brought is provided.

The majority of the court are of the opinion that this action is not appealable because it was not cognizable in chancery and is not a chancery case.

Section 27 Cyc. page 17, in defining a mechanic’s lien, says:

“A mechanic’s lien is a species of lien created by statute in most of the states, which exists in favor of persons who have performed work or furnished materials in and for the erection of a building. It is not a general, but a particular lien, and is in its nature peculiar and of an equitable character, and has been said to be somewhat analogous in its aims to the equitable lien of a vendor for unpaid purchase money of lands sold.

In the same volume Cyc. on pages 317 and 318, under the title of “Nature and Form of Remedy,” this language is employed :

“The right to a mechanic’s lien being entirely statutory, not only the right itself, but the method of enforcing it must depend upon the statute, and must be pursued in strict compliance with the terms of the statutes. Sometimes the statute does not assume to prescribe any special rules of practice or procedure, but leaves such matters to be regulated by' the general rules governing other actions of a similar nature, and in this case the-proceeding is an ordinary civil action and not a special proceeding.” '

Again on page 321 of the same volume we find this language:

“ Under some statutes the remedy for the enforcement of a mechanic’s lien has been prescribed by an ordinary action at law, or a proceeding in a court of law, not governed by equitable principles. Such a remedy has been held to be exclusive of the jurisdiction of a court of equity in the absentee of special circumstances demanding equitable interference, but a bill will lie when such peculiar circumstances exist as to render the interposition of a court of equity proper.”

2 Jones, Liens (3 ed.) Chap. 30, Sec. 1184, lays down this proposition:

“A mechanic’s lien upon real property is wholly a creature of statute. At common law a mechanic has no lien upon a building for labor done upon it. Equity raises no lien upon it other than the grantor’s lien for purchase money. There is no common law lien of any kind upon real property. ’ ’

And in the same volume, See. 1559, the author says:

“Whether the proceedings to enforce a mechanic’s lien are legal or equitable depends, of course, upon the terms of the statutes' providing the remedy. The statutes of several states assimilate the proceedings to’ enforce such a lien to the equitable-action to foreclose a mortgage, and under such statutes the proceeding is essentially a suit in equity.”

And in Sec. 1561 of the same volume, the author says:

“A court of equity can not assume jurisdiction to enforce-a- mechanic’s lien without the aid of a statute, in the absence of a special cause for equitable interposition. This lien is a statutory right, and the remedy for its enforcement is provided by statute, and can be pursued only before the tribunals and in. the mode the statute provides.” .

Again, in Sec. 1587, the author employs this language:

“In drafting the pleadings, the pleader should have the stab ute before him ,with the view to seeing that all the essential requirements are met in the allegations of'the petition or complaint. The statute which gives a mechanic a lien is in delegation of the common law, and a lien can be established only by a clear compliance with the requirements of the statute. The petition must allege everything essential to making out a case under the statute.”

The Supreme Court in thé case of Dunn v. Kanmacher, 28 Ohio St. 497, 503, 504, in passing upon the question of the ap-pealability of an action arising under the mechanic’s lien statute, which was a statute existing prior to the adoption of the act in 103 O. L. 369, employs this language in speaking of the nature of the claim of the right of action under thé mechanic’s lien:

“What was the nature of that right of action and upon what was it founded? It was their right to have the money in the hands of the board of trustees applied to the payment of their claim against Kanmacher and Stark; and that right was founded solely on the statute entitled ‘An act to create a lien in favor of mechanics, and others, in certain cases,’ passed March 11, 1843, and the act amendatory of and supplementary thereto, passed May 1, 1871. Without statutory aid, the claim of plaintiffs against the board of trustees would be wholly destitute of merit either at law or in equity; but under the statute, upon the filing with the board of trustees an attested account of the plaintiff’s demand against Kanmacher & Stark, it became the duty of the-board of trustees to retain out of subsequent payments due, or to become due, to Kanmacher & Stark, the amount of plaintiffs’ account and for their benefit.”

And, further along, the court says, page 504:

“Where a statute gives a new right, and also prescribes the remedy for its violation, the remedy so prescribed must be taken as exclusive, unless it appears from the statute that the legislature intended otherwise.”

And the conclusion of the court is:

1 ‘ Hence, in an action between the plaintiffs and the board of trustees, neither party was entitled to an appeal from the final judgment therein. ’ ’

There is no doubt that the mechanic’s lien had no existence in chancery, and has no existence whatsoever outside of the statute which created the right and also furnished the remedy for the enforcement of the right.

Chief Justice Nichols, in a very elaborate and well considered opinion in the eases above cited, Wagner v. Armstrong, supra, has made some very lucid and pertinent statements with reference to the case at hand. In discussing the question of whether or not an action is a chancery case, he employs- this language:

“Appealable cases, therefore, must be such cases as are now recognized as equitable in their nature; and perhaps the better way to express it would be: cases that were recognized as equitable actions before the adoption of the code of civil procedure; for while our code established under one grand division all actions whether of an equitable or a legal nature and called them civil actions, yet there was no attempt to change the nature of the remedy.”

And again, he says:

“The older authorities really throw more light on the subject than the more modern ones, and quite naturally, for before the consolidation of all remedial actions into the so-called civil actions, the line of demarcation between cases in chancery and those at law was more clearly drawn and was under consideration by the courts much more frequently than at present.”

And after quoting many authorities:

“From these authorities the doctrine may be safely laid down that a case concededly chancery in its nature and calling for an equitable remedy will continue so in spite of the fact that the law may have formally adopted the offspring of chancery. In short, once a chancery case, always a chancery case, at least for jurisdictional purposes. ’ ’

Chief Justice Nichols in giving the court’s conclusion as to the nature of chancery eases, says:

“We will not attempt to categorically and finally answer the much mooted question: What is a chancery ease ? It would be a difficult if not a dangerous thing to do, and of doubtful benefit. It ought, however, to be approached, generally speaking, not from the modern viewpoint, but rather from the old-time conception. Especially would this be so with reference to well-recognized equitable remedies known to the courts prior to the adoption of the code of civil procedure.
‘! This much, however, may safely be said: A chancery case is one in which, according to the usages and practices in courts of chancery prior to and at the time of the adoption of the Code of Civil Procedure, remedies were awarded in accordance with the principles of equity and not in accordance with the rules of law. And the proper definition of the term in our new constitution can*not be regarded as affected by the provisions of statutes relating to appeals, nor by the introduction bodily of equitable remedies into our statutes. ’ ’

We think it sufficient to have quoted this much from the opinion of Chief Justice Nichols, to support the conclusion which the majority of this court has reached.

A mechanic’s lien being purely a creature of the statute, and the method of enforcing the lien being provided also by statute, such action to enforce it is not a chancery case. Such a right and such a claim were unknown both in chancery and at common law, and unknown before the adoption of our code. This being true, we think it inevitably follows as a correct conclusion that under the present constitution as amended September, 1913, the action before us is not a chancery case, and is not appealable.

The motion of the defendant Schraden to dismiss the appeal for want of jurisdiction in this court to entertain the cause must therefore be granted.

Jones (E. H.), J., concurs.

Jones (0. B.), J.,

dissenting.

In effect, the majority judges of this court hold that no case can be considered a “chancery case” where it is based upon a right secured by statute, unless that right or its equivalent was in existence in the time of courts of chancery.

While they admit the equitable character of this action, because the right to a mechanic’s lien and its enforcement is given by statute and can not be traeed back to the hoary annals of a court of chancery, they hold that the action below, which was an action to declare a lien, marshal priorities of liens and sell real estate for their payment, is not subject to trial on appeal under the appellate jurisdiction given to court of appeals by Art. 4, See. 6, of the constitution as amended September, 1912.

With this finding I am unable to agree.

There is no question that the right to a mechanic’s lien is a creature of statute. It is based upon the equitable doctrine that he who helps create a building upon real estate by furnishing either labor or material should be entitled to a lien upon it for payment, and the statute has therefore so provided. The character of the proceedings for the enforcement of such a lien is dependent upon the terms of the statute providing the remedy.. -Jones, Liens, Sec. 1559.

Tn Ohio, the lien is similar to that of a mortgage, which is also a creature of statute, and it is enforced in a similar manner by foreclosure and sale. This proceeding is essentially equitable in its nature, although it, too, is provided by statute, as are all other actions (except prohibition) since the code of civil procedure.

Mechanic’s liens are specially favored by the constitution as. amended. Art. 2, Sec. 33, provides:

“Laws may be passed to secure to mechanics, artisans, laborers, subcontractors and materialmen, their just dues by direct lien upon the property, upon which they have bestowed labor or for which they have furnished material. No other provision of the constitution shall impair or limit this power. ’ ’

To limit the right of a mechanic or materialman, secured under this provision, to a trial before a single judge without a jury and without an opportunity for a review of the facts by appeal, would certainly not in this important matter be a compliance with the desire of the people in amending the constitution.

The proceeding for the enforcement of a mechanic’s lien is-provided by Sec. 8223 G. C. as found in 103 O. L. 377 (See. 14).

“Any person holding a mechanic’s lien, in addition to the remedies herein provided for, may proceed by petition, as in other eases of liens, against the owner and all other persons interested, either as lienholders or otherwise, in any * * * house * * * and the land on which it stands * * * and obtain such judgment therein for the rent or sale1 thereof as justice and equity require. ’ ’

It differs materially from the lien law under consideration in the ease of Dunn v. Kanmacher, supra, where, as stated in the -syllabus, the remedy was by “an action of money had and received” as prescribed by Sec. 5 of the mechanics’ lien act (S. -& C. 834), and the holding that there was no right of appeal in that' case has no weight here, because it was for trial by a jury and involved no equitable questions.

The proceeding given by Sec. 8323 G. C. is equitable in its nature, and if we now had separate courts of law and courts of chancery it would be brought before a court of chancery. Or if the action were in the federal court with its separate jurisdie-lions, it would be docketed and heard as an action in equity and not as a case at law.

In Gilchrist v. Railway, 58 Fed. 708, 710, the court uses the following language in commenting upon the jurisdiction of courts of equity in the enforcement of statutory laws:

“It is claimed by the plaintiff in the cross bill that the lien of the judgment creditors in the case at bar is a legal lien given by law, and hence can not be enforced in a court of chancery, ■and hence this court can have no jurisdiction of the matters set forth in the original bill. No doubt this point can be presented at any time in this court. It is true that the lien given in this case is a statutory lien. But that is no reason why it may not be enforced in equity. Pomeroy in his Equity Jurisprudence (Yol. 1, See. 167) classes statutory liens as coming exclusively within the jurisdiction of a court of equity, and adds:
“ ‘In addition to the liens above mentioned which belong to the general equitable jurisdiction, the legislation of many states has created or allowed other liens which often come within the equity jurisdiction in respect at least to their means of enforcement. The so-called “mechanics’ liens” may be taken as the type and illustration of this class.’ ”

The able opinion of Chief Justice Nichols in the case of Wagner v. Armstrong, supra, supports my view. While it concedes the difficulty and undesirability of giving an exact statement or definition of a chancery case, it states that “the terms ‘equity’ and ‘chancery’.are interchangeable terms and are constantly used as synonyms in all our states as well as in England. ’ ’

That the term “chancery cases” is not limited to old rights known only to the antiquities of the law, but is applicable to new rights and remedies such as those seeking enforcement-in this proceeding, authorized and provided by statutes and constitutional provisions just enacted, it is only necessary to quote the following words of the Chief Justice in Wagner v. Armstrong, supra:

‘ ‘ It would not do, however, to lay down a hard and fast rule, that only such chancery cases as were known to that period of our legal history could have been intended by our constitution makers as being the cases subject to appeal. The changing condition of the times, development along new lines, the springing up of new problems, progress in many of the avenues of life— these things beget new rights and obligations-that call for new and equitable remedies.
‘ ‘ Equity is not only elastic as to its remedies, but it is progressive.
‘ ‘ Its principles are indeed immutable, founded as they are on exact justice and equality before the law, but equitable remedies are constantly subject to enlargement.
“These considerations make it manifest, therefore, that an all-embi'acing and satisfactory definition of a chancery ease would be most difficult to obtain, and if obtainable might well promote injustice rather than justice.”


author: KINKADE, J.

text:
    DESCENT AND DISTRIBUTION. •
    [Wood (6th) Court of Appeals,
    May 8, 1913.]
    Richards, Kinkade and Chittenden, JJ.
    Joseph A. Holmes, Exr. v. Heinrich Fackleman.
    Construction of Dévise of Residue Bequeathed to Nephews and Nieces-, Share and Share Alike, Held Per Stirpes.
    The testator bequeathed the residue of his estate to the children of his two sisters, share and share alike. Held: That the division should he made among said children per capita and: not per stirpes.

      Appeal.

      Fries, Towel & Smiley, for plaintiff.

      Benj. F. James, for defendant.
   KINKADE, J.

This was an action in the court of common pleas to secure the construction pf the will of Peter Fackleman, deceased. The clause in dispute was paragraph number three of the will which reads as follows:

‘1 Third: I give, devise and bequeath all the residue of my estate after paying my just debts, funeral expenses, and erecting the monument heretofore mentioned to the children of my sisters, Margaret Fackleman and "Marion Fackleman, to be equally divided between them share and share alike. If any of the children of my said sisters shall have died leaving children, then it is my will that the share of the said child or children of my said sisters, Margaret Fackleman and Marion Fackleman, shall be equally divided among the children of such deceased child or children. ’ ’

The only portion of this paragraph to which we need give any attention is the first clause. The two sisters mentioned, Margaret and Marion Fackleman, were dead at the time of the execution of the will. One of them had nine children living, and the other four. The sole question is should the estate of .the testator be divided into two parts, one half going to the. nine children of one sister and the other half to the four children of the other sister, or should the estate be divided into thirteen parts, one thirteenth going to each child.

We are very clearly of the opinion that the latter method of division is the proper one under the clause of the will quoted, and we think this conclusion is fully sustained by the following cases: Huston v. Crook, 38 Ohio St. 328; Mooney v. Purpus, 70 Ohio St. 57 [70 N. E. 894]; Hughes v. Hughes, 118 Ky. 751 [82 S. W. 408]; McIntyre v. McIntyre, 192 U. S. 116 [48 L. Ed. 369; 24 Sup. Ct. 196].

We think the authorities cited, to sustain the contention that the estate should be divided into two parts, one of each to go to the children of each sister, are not in accord with the holdings of our own Supreme Court, nor in accord with, the language of the United States Supreme Court in the case cited above.

We hold that the estate should be divided into thirteen parts, and passed to the children of Margaret and Marion Fackleman as an entire class, share and share alike as stated in the will, each taking a thirteenth part.

Richards and Chittenden, JJ., concur.


author: SAYRE, J.

text:
    DEEDS — WILLS.
    [Hocking (4th) Court of Appeals,
    April 8, 1915.]
    Sayre, Middleton and Walters, ,I,T-
    Merrick F. McCarthy v. Homer G. Hansel et al.
    1. Deed of Vested Remainder Subject to Death Conveys No Interest.
    The will of a testator contained a provision devising his estate to his widow for life and the following: “After the death of my wife, I give, devise and bequeath unto my children all of my estate, real or personal, of whatsoever kind and wheresoever situated, share and share alike; if any of my children should die previous to that time, leaving heirs of their body, then and in that case such heirs to take the share or shares, which would have been due to their parent or parents, if living.” Held: That the estate devised to each child was a vested remainder, subject to be divested by his death during the continuance of the life estate, and a deed made by such child during such time conveyed no interest in the property.
    2. "Owners” In Deed Means '^Absolute Owners.”
    The word “owners,” when used in a conveyance of real estate in which the grantors covenant “that they are the true and lawful owners of said premises,” means absolute ownership or interest in fee simple.
    Appeal.

      Wilson & McBride and John C. Pettit, for plaintiff.

      Binns & MacConkey and E. M. Baldridge, for Frances E. and Alma H. McCarthy.

      C. 'V. Wright and S. M. Whitcraft, for Homer G. Hansel.
   SAYRE, J.

Dennis McCarthy died January 22, 1868, leaving Alcinda McCarthy, his widow, and the following children: Charles, Catherine, Frances E., Alma H., Thomas F., William and Mary A.

The widow died January 11, 1914.

All the children are living except (1) Thomas F., who died October 16, 1900, leaving Merrick F. McCarthy, the plaintiff, Corinne Godfrey and Idena Wilson, his children; (2) William, who died August 27, 1887, leaving Margaret Frash, Alma I. Wuebben and Philip McCarthy, his children; (3) Mary A., who died April 27, 1912, leaving Hugh A. Green and Robert D. Green, her children.

By Dennis McCarthy’s last will and testament he devise'cl his farm of about 260 acres to his widow during her natural life. The third item of his will is copied in the syllabus.

Subsequent to the death of Dennis McCarthy his widow and all his children, by deed and mortgage, undertook to convey all such real estate with covenants reciting that they were “the true and lawful owners of said premises and have full power to convey the same; that the title so conveyed is clear, free and unincumbered ; and that they will forever warrant and defend the same against the claims of all persons whomsoever.’’

1 The mortgage was foreclosed, and the defendant, Homer G. Hansel,' claims now, by virtue of the deed, mortgage and foreclosure proceedings, to be the owner in fee simple of all the premises. .

The- children of Thomas F. McCarthy and Mary A. Green claim that the attempted conveyance of Thomas F. and Mary A. passed no title and that they are the owners of the undivided two-sevenths of the property under the provisions of the will of their grandfather.

This suit is for partition.

■ The first question to be determined is: What estate did the children of Dennis McCarthy take in his real property by the provisions of his will?

It is contended that the estate did not vest until the death of the widow because of the language, “After the death of my wife, I give, devise and bequeath # * ” found in the third item of the will.

But adverbs of time, such as .“when,” “then,” “after,” “thereafter,” “from and after,” etc., all refer to the exact instant when the life estate ends, and in a devise of a remainder are eonstrned to relate merely to the time of the enjoyment of the estate and not to the time of vesting. Linton v. Laycock, 33 Ohio St. 128; Doe v. Considine, 73 U. S. (6 Wall.) 458 [18 L. Ed. 869]; Johnson v. Valentine, 4 Sandf. (N. Y.) 36, 43; Moore v. Lyons, 25 Wend. (N. Y.) 119; Boraston’s Case, 3 Coke 16a. Minnig v. Batdorff, 5 Pa. 503; Rives v. Frizzle, 43 N. C. (8 Ired.) Eq. 237; Staples v. Mead, 37 N. Y. Snpp. 847; Connelly v. O’Brien, 166 N. Y. 406 [60 N. E. 20]; Hersee v. Simpson, 154 N. Y. 496 [48 N. E. 890].

It is further contended that the language “which wquld have been due to their parent, or parents, if living,” at the end of the third item of the will, indicates that the interests of the children did not vest until the termination of the life estate, for if, it is claimed, the interests had already vested they could not be still due. 1

But it seems a fair interpretation that this language also has reference to the possession and enjoyment of the real estate. The heirs of the body of deceased children are, at the death of the-wife, to possess and enjoy that which would have been due their parents to possess and enjoy if they had outlived the widow of the testator. This in no way interferes with the idea of an immediate vesting, subject to the rights of the life tenant.

In the case of Flanagan v. Staples, 51 N. Y. Supp. 10, the language of the will was:

“Upon the death of my said wife, I give, bequeath, and devise all my estate and property unto my children, in equal shares or portions, share and share alike, absolutely and forever. In the event of the death of any of my children, leaving issue * * * such issue shall take the share or portion * * * which the-parent would have taken if living. ’ ’

The court held the remainder was vested.

■ The language “which would have been due to their parent, or parents, if living,” and the language “which the parent would have taken if living,” mean substantially the same thing.

In the case of Camp v. Cronkright, 13 N. Y. Supp. 307, the language of the will was:

“Upon her [the widow’s] death then I give and devise the. same unto my children, share and share alike, absolutely and forever, the child or children of any deceased child of mine to take-the share which his, her, or their parent would have taken if living. ’ ’

The court held that the remainder was vested.

Similar language and the same holding will be found in the ease of McCauley, In re, 144 N. Y. Supp. 313.

Some rules for distinguishing between contingent and vested remainders which are found in the boobs and which are assembled in the ease of Doe v. Considine, supra, may be repeated here and considered in the further examination of the will in controversy:

1. “The law will not construe a limitation in a will into-an executory devise when it pan take effect.as a remainder, nor a remainder to be contingent when it can be taken to be vested.”

2. “It is a rule of law that estates shall be held to vest at the earliest possible period, unless there be a clear manifestation; of the intention of the testator to the contrary. ’ ’

3. “A vested remainder is where a present interest passes; to a certain and definite person, but to be enjoyed in futuro.. There must be a particular estate to support it. The remainder must pass out of the grantor at the creation of the particular estate. It must vest in the grantee during the continuance of the estate or eo instanti that it determines.”

4. “Where a remainder is limited to a person in esse and ascertained, to take effect by express limitation, on the termination of the preceding particular estate, the remainder is unquestionably vested.”

5. “Where a remainder is limited to take effect in possession, if ever, immediately upon the detennination of a particular estate, which estate is to be determined by an event that must unavoidably happen by the efflux of time, the remainder vests, in interest as soon as the remainder-man is in esse and ascertained, provided nothing but his own death before the determination of the particular estate, will prevent such remainder from vesting in possession.”

6. “It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent.”

7. “It shoiild be remembered, too, that no degree of uncertainty as to the remainderman’s ever enjoying the estate which is limited to him by way of remainder will render such Remainder a contingent one, provided he has, by such limitation, a present absolute right to have the estate the instant the prior •estate shall determine. ’ ’

8. “The present capacity of taking effect in possession— if the possession were to become vacant — distinguishes a vested from a contingent remainder, and not the certainty that the possession will ever become vacant while the remainder continues. ’ ’

9. “The contingent remainder is where the estate in remainder is limited either to a dubious and uncertain person, or .upon the happening of a dubious and uncertain event. ’ ’

In the instant ease a present interest, on the death of the testator, did pass to certain and definite persons — that is, his children — to be enjoyed in the future. There was a life estate to •support the interest which passed to each of them. The remainder passed out of the grantor on the creation of the life • estate which was devised to his widow. It vested in the children :at the very instant the life estate commenced. The possession ■■and enjoyment passed to the children immediately upon the 'termination of the life estate. The remainders devised to the children of Dennis McCarthy were limited to take effect immediately upon the determination of the life estate of his widow, which estate was to determine by an event (the death of the widow) that must unavoidably happen by the efflux of time, .•and upon the death of Dennis McCarthy the remaindermen, his -children, were in esse and ascertained, and nothing but their own deaths, before the determination of the life estate of the widow, could have prevented their remainders from vesting in possession. There is no uncertainty of the right of enjoyment in the children. They had a present absolute right to have the •estate in possession the instant the prior estate determined. The remainders are limited to certain and definite persons — testator’s children — and upon a certain and definite event — the death of .the widow.

Another familiar rule is stated thus: "An estate once vested will not be divested unless the intent to divest clearly appears.”

The following rule will be found in Gray, Rule Against Perpetuities (3 ed.), p. 85:

"Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description ,of, or into the gift to the re-mainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus on a devise to A. for life, remainder to his children, but if any child dies in the lifetime of A. his share to go to those who survive, the share of each child is vested, subject to be divested by its death. But on a devise to A. for life, remainder to such of his children as survive him, the remainder is contingent.”

In the will of Dennis McCarthy there is a complete devise of a vested interest, subject to the life estate; then a clause is added after the semicolon divesting the interest on the contingency of death of the devisee before the life tenant. And under this rule the vested interest is subject to be divested upon the happening of such contingency.

A full statement of the rule marked 5, in Doe v. Considine, supra, is as follows:

"Where a remainder is limited to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event that must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainderman is in esse and ascertained, provided nothing but his own death before the determination of the particular estate, will prevent such remainder from vesting in possession; yet if the estate is limited over to another in the event of the death of the remainderman before the determination of the particular estate, his vested estate will be subject to be devested by that event, and the interest of the substituted re-mainderman which was before either an executory devise or a contingent remainder, will, if he is in esse and ascertained, be immediately converted into a vested remainder. ’ ’

In tbe case at bar the estate is limited over in the event of the death of any child of Dennis McCarthy before the determination of the life estate, and under the rule it is subject to be divested by the death of any child and vests in the heirs of his body if in esse and ascertained.

In the case of Jeffers v. Lampson, 10 Ohio St. 101, 104, the share of the son dying before the widow was to go to a survivor, and the supreme court held the share vested, subject to be divested upon the contingency therein stated.

In the case of Flannagan v. Staples, supra, the court held that each child of the testator took a vested interest, subject to be divested, in ease of his death before the decease of the widow, in favor of his surviving issue.

The same holding will be found in Camp v. Cronkright, supra; McCauley, In re, supra.

In Lyons v. Ostrander, 167 N. Y. 135 [60 N. E. 334] the will, after making provision for Jacob Weeks Cornwell during his life, contains this clause:

“Upon his death I give, devise and bequeath the said lots of land and buildings to Virginia Cornwell, wife of said Jacob Weeks Cornwell, Ida Van Cott, Clarissa Lyon and Millard Fillmore Cornwell, children of said Jacob Weeks Cornwell, share and share alike, the issue of such as may have died to take the share to which his, her or their parents would, if living, have been entitled. ’ ’

The court of appeals of New York held that the remainder* men took vested interests, “and where one predeceases the life beneficiary her share becomes divested and vests in her issue, and a trustee under her will does not take any interest in the. property. ’ ’

The following authorities sustain the rule: Ranhofer v. A. C. & H. M. Hall Realty Co. 128 N. Y. Supp. 230; Schwartz v. Rehfuss, 114 N. Y. Supp. 92; Boyd v. Sanders, 141 Ga. 405 [81 S. E. 205]; Sumpter v. Carter, 115 Ga. 893 [42 S. E. 324; 60 L. R. A. 274]; Fields v. Lewis, 118 Ga. 573 [45 S. E. 437]; Hervey v. McLaughlin, 1 Price Eng. Ex. 264; Straus v. Rost, 67 Md. 465 [10 Atl. 74]; McArthur v. Scott, 113 U. S. 340 [28 L. Ed. 1015]; White v. Smith, 87 Conn. 663 [89 Atl. 272, 275], and cases there cited; 2 Underbill, Wills, Sec. 867.

The case under consideration is not controlled by Linton v. Laycock, 33 Ohio St. 128. That ease approves Brasher v. Marsh, 35 Ohio St. 103, and the third paragraph of the syllabus in the latter case reads:

‘ ‘ The words ‘ or their heirs ’ were designated to provide for the ease of such children as might die before the final distribution — not a new class of beneficiaries. ‘Heirs’ is used as a word of limitation, and those only can claim under it who derive title through a deceased child. ’ ’

In the former case the court, in the opinion, page 136, say: “It is reasonable to presume that the testator had in view the disposition which the law makes of intestate estates. ’ ’

And again, on the same page, the writer of the opinion uses these words: ‘ ‘ That is to say, in case of the death of one of his children, his share was not to go to the survivors, but to be considered as if inherited by the heir of the deceased. ’ ’

The will of Dennis McCarthy shows no intention on his part to have the shares of his children pass as they would under the laws governing intestate estates. On the contrary, the will clearly shows an intention to change such devolution, and the share of a deceased child passes to the “heirs of the body. ” The “heirs of the body” of the children do not inherit from the parent, but are by the will substituted for the parent. So if they take any estate, they take by the will of the grandfather, not by inheritance from their parent. While the words “heirs of the body” are usually construed as words of limitation, they are here used as words of purchase. The estate which came to the grandchildren came by devise and not by inheritance.

Counsel for Frances E. and Alma H. McCarthy, two of the children who signed the deed and mortgage but survived their mother, contend that their conveyances pass only a determinable fee, that the language of those instruments is not sufficient to pass to the defendant, Hansel, the indefeasible title which they acquired upon the death of the widow of Dennis McCarthy, and that they are not estopped to dispute the claims of such defendant.

The grantors in the deed to Hansel and in the mortgage-through which he derived his title covenanted that they are ‘1 the true and lawful owners of said premises and have full power to convey the same, ’ ’ etc. It is contended that the words ‘ ‘ owners of said premises” are not equivalent to “seized in fee” of said premises, and that “the children owned determinable fees by operation of law; these they conveyed, and these they warranted,, and nothing more. ’ ’

No doubt the meaning of the word “owner” depends upon the connection in which it is used, and may or may not mean one who holds the fee simple or highest estate, as held in Baltimore & O. Ry. v. Walker, 45 Ohio St. 577, 585 [16 N. E. 475]. But what does it mean in the covenants referred to? As applied to land it usually denotes a fee simple title. -¡

In Irvine v. Irvine, 76 U. S. (9 Wall.) 617 [19 L. Ed. 800], the first paragraph of the syllabus reads: “When one makes a deed of land covenanting therein that he is the owner, and subsequently acquires an outstanding and adverse title, his hew acquisition enures to the grantee on the principle of estoppel.”

The deed recited that the grantor was “well seized in fee, and had good right to sell and convey in fee.” The federal supreme court treated that language as equivalent to the word 7 owner. ’ ’

See also, Coombs v. People, 198 Ill. 586 [64 N. E. 1056]; Wright v. Bennett, 4 Ill. (3 Scamm.) 258; Illinois Mut. Fire Ins. Co. v. Marseilles Mfg. Co. 6 Ill. (1 Gilm.) 236; Jarrot v. Vaughn, 7 Ill. (2 Gilm.), 132; Whiteside v. Divers, 5 Ill. (4 Scamm.) 336; Hadlock v. Hadlock, 22 Ill. 384; McFeters v. Pierson, 15 Colo. 201 [24 Pac. 1076; 22 Am. St. 388]; Bouvier, Law Dict.

The defendants Frances E. and Alma H. McCarthy are estopped by the covenants in their conveyances to claim any estate in the premises devised to them by their father.

Judgment accordingly.

Walters and Merriman, JJ., concur.


text:
    SALES.
    [Cuyahoga (8th) Circuit Court,
    December 16, 1907.]
    Marvin, Winch and Henry, JJ.
    Herman F. Schlitt et al. v. Cleveland Store Fixt. Co.
    1. Contract for Sale Of Goods, Title To Remain In Vendor, Conditional Sale.
    An agreement for the sale of chattels with a provision that the title is to remain in the vendor until they are fully paid for, is a conditional sale and within the provisions of Sec. 4155-2. R. ' S., (Sec. 8568 G. C.), and whether or not the contract provides for payment in installments is immaterial.
    2. Vendor Seeking Return of Chattels Must Prove Return of Payments.
    A vendor seeking the recovery of goods sold on a contract of conditional sale must allege and prove that he had paid or tendered the vendee the amount of the purchase price he had received less a reasonable amount (not exceeding fifty per cent.) for their use.
    Error.

      Klein & Harris, for plaintiff in error.

      Wm. H. Hill and Alvay Curtis, for defendant in error.
   MARVIN, J.

The parties here are reversed from their relative positions in the court of common pleas. The terms plaintiff and defendant as used in this opinion refer to the parties as they stood in the court below. The facts are these:

On June 17,1903, one Wm. F. Schultz placed an order with the plaintiff for certain furniture and other chattels. This order was accepted by the plaintiff and so became a contract between the parties. This contract provided as to price of and payment for the goods in these words:

“Price ($355) three hundred and fifty-five no 100 dollars. Settlement to be made (on delivery of goods). Terms: f.o.b., Cleveland, Ohio.
“All orders for special work must be secured with 30 per cent down payment on signing of order, 30 per cent in-from date of order, 30 per cent on shipment of goods, and balance immediately after goods are in place.
• “If the goods are sold on payments, notes bearing 6 per cent interest, mortgage or other security, with fire insurance covering the balance satisfactorily to be given.
“And it is agreed as security for the payment of the above that you retain title to said property until fully paid for (notes and drafts not to be considered as payment until they are redeemed), and in default of the full payment of any one payment, as herein agreed, you or your agent may enter my premises without process of law, and take possession of and remove said property, and I hereby bind myself not to sell, trade, transfer, convey or otherwise dispose of said property above ordered, or any part thereof, without having first obtained the consent of the Cleveland Store Fixture Company. * * *
“It is agreed that, the writing and printing above contains all to.which the parties of either part are bound.”

This contract was made upon a printed blank, so that some of the language used has no special reference to a case like this, but enough has been quoted to show that which the contract was as to payments and the retention or ownership by the plaintiff until the goods were fully paid for. On the part of the plaintiff this contract ivas executed by the delivery of the goods to Schultz.

On September 12, 1903, the plaintiff, through its agent, made an affidavit, and attached it to this contract, which affidavit reads:

“State of Ohio, Cuyahoga county, ss.
“Henry E. Wetzel upon his oath says that he is the agent of the Cleveland Store Fixture Company, duly authorized in the premises, that the instrument hereto attached, marked, ‘ Exhibit A ’ is true copy of a contract of purchase made by said William F. Schultz of city of Cleveland, county of Cuyahoga, Ohio, and that there is unpaid and still owing thereon from said William F. Schultz to said the Cleveland Store Fixture Company, the sum of one hundred dollars on the terms and conditions set forth in said contract.”

When the contract was made Schultz paid $100 of the purchase price. Subsequently from time to time, the last payment being made some time in August, 1903, he paid an additional $155. The remaining $100 of the purchase price has never been paid.

In October, 1903, Schultz sold the goods to the defendants, giving them a bill of sale, the consideration being a debt then owed by Schulz to the defendants. Thereafter, the plaintiff brought suit in replevin before a justice of the peace and the •goods were levied upon, and, thereupon the defendants undertook as provided in 6616 Rev. Stat. (Sec. 10465 G-. C. et seq.) under title “counter-bond by defendants.” The conditions of the bond being such as provided by the statutes, to wit:

“That the defendant will safely keep the property and in •case the judgment shall be against him, that he shall return the property taken, or pay the value so assessed, at the election of the plaintiff, and also pay the damages assessed for the taking ■detention and injury of the property and costs of suit,” etc.

Upon the giving of this bond the property was returned to the defendant and the suit proceeded to judgment. From this judgment appeal was taken to the court of common pleas and there tried, with the result that the plaintiff obtained a judgment against the defendants. in the sum of $100, and interest perhaps.

It should be stated that an appraisement of the goods was waived in the proceeding before the justice, and the value was •agreed upon at $100.50. To reverse this judgment the present proceeding is prosecuted.

The plaintiff, if entitled to recovery, was so entitled because of his contract with Schultz, and the question was raised in the trial court and is raised here, whether the contract was a chattel mortgage, or whether it was a contract of conditional sale, as provided for in See.-4155-2 R. S. (See. 8568 G. C. et seq.)

It is urged that as the language of the contract is, “Price three hundred and fifty-five dollars; settlement to be made upon ■delivery of goods,” this was not such a contract as is provided for in Sec. 4155-2. The statute reads:

“In all cases where any personal property shall be sold to any person, to be paid for in installments in whole or in part, or shall be leased, rented, hired, delivered, to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring, or receiving the same whenever the amount paid shall be a certain sum or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer or deliverer of the same, until such sum or the value of such property or any part thereof shall have been paid, such condition, in regard to the title so remaining until such payment shall be void as to all subsequent purchasers and mortgagees in good faith, and creditors unless such conditions shall be evidenced by writing signed by the purchaser, lessor, renter, hirer or receiver, of the same, and also a statement thereon, under oath made by the person so selling, leasing or delivering any property as herein provided, his agent or attorney, of the amount of the claim, or a true copy thereof, with an affidavit that the same is ■a copy, deposited with the county recorder of the county where the person signing the instrument resides at the time of the execution thereof, if a resident of the state. ”< * * *

Under this statute it is not necessary that payments for the property purchased shall be made in installments. The statute includes not only sales made to be paid for in installments, but includes all contracts where the property sold is delivered to another on condition that the same shall belong to the person receiving such property whenever the amount paid shall be a certain sum, or shall be the value of such property; the title to the same to remain in. the deliverer of such property until such sum shall have been paid. A careful reading of the section clearly shows that property sold and delivered by one to another, the title remaining in the deliverer until the receiver shall have paid a fixed sum, or the value of the property, is within the terms of the statute.

Section 4155-3 E. S. provides how the vendor may retake property sold upon such conditional sale, and reads:

“Whenever such property * * * is so * * * delivered, it shall be unlawful for the persons who so delivered * * * to take possession of said property, without tendering or refunding to the * * * party receiving the same from the vendor, the sum or sums of money so paid after deducting therefrom a reasonable compensation for the use of such property, which shall in no ease exceed 50 per cent of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed, in such contract or not, unless such property has been broken, or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed.
“Provided, that the vendor shall not be required to tender or refund any part of the amount so paid, unless said amount so paid to the vendor exceeds 25 per cent of the contract price of the property.”

If the suit had been brought by the plaintiff against Schultz while the property was in his possession, it is clear that it would not have been entitled to recover, without having first paid or tendered the money which the defendant had paid upon the property, after deducting a reasonable compensation' for the use of the property and deducting for any damage that the property had suffered, and a reasonable compensation for such damage.

This is so because the contract comes within this statute and the payments made very greatly exceed 25 per cent of the contract price of the property. No payment or tender was made by the plaintiff to anybody. It is said, on argument on the part of the defendant in error, that the failure to pay or tender payment on the part of the plaintiff would be matter of defense, but this is not sound. The petition of the plaintiff was the ordinary petition in replevin, setting out that the plaintiff was the owner and entitled to the immediate possession of the goods. The answer was a general denial. This put upon the plaintiff the burden of showing affirmatively that it was so entitled to the immediate possession of the goods.

If it was so entitled, as against Schultz, it was so entitled because of the facts which have been stated, and upon which it relied, but the answer put upon it the burden of showing that it had complied with all these provisions of the statute, which entitled it to the possession; that, it failed to do. There was no evidence offered tending to show that the property had been damaged or injured in any way; hence, under the evidence, the amount to be tendered- by the plaintiff would not be reduced on account of any damage. But as no tender was made at all this is a matter of indifference.

That the rights of the defendants were exactly what the-rights of Schultz would have been if a suit had been brought against him while the property was in his possession is settled by the case of the National Cash Register Co. v. Cervone, 76 Ohio St. 12 [80 N. E. 1033]. The second paragraph of the syllabus, in this case reads:

“Where there has been paid on the contract of conditional sale an amount in excess of twenty-five per cent of the purchase-price, and the vendee has transferred his interest in the property by mortgage or sale, the vendor is not entitled to replevin the property so sold without first tendering to the mortgagee, or purchaser in possession any amounts paid thereon less a reasonable compensation for the use of the property (not exceeding-fifty per cent of the amount so paid) and for the damage done-to it while in possession of the vendee or his assigns.”

Under the evidence then, the verdict and judgment should have been for the defendants and the court erred in its charge to the jury in saying that the contract was a chattel mortgage and then applying to the case the law governing chattel mortgages. The judgment of the court below is therefore reversed for error in the’ charge and for error in overruling the motion for a new trial on the ground that the verdict was against the weight of the evidence.

Winch and Henry, JJ., concur.


text:
    EVIDENCE — PAYMENT.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Marvin and Henry, JJ.
    Sarah Schmith v. John Coulton.
    Burden of Proof That Claim Is Not Barred By The Statute On Plaintiff..
    Where alleged payments are relied upon to take a cause out of the operation of the statute of limitations, the burden is upon the-plaintiff to show that the payment was made by the defendant, or under his direction.

      ERROR.

      W. J. Patterson, for plaintiff in error.

      Brady & Dowling, for defendant in error.
   MARVIN, J.

John Coulton brought suit against Sarah Schmith on an account, which, on its face, was barred by the statute of limitations, unless it was saved by payments made within six years, last past.

The credits appearing upon the account read:

“Nov. 9, 1898, by cash, $5.00.
“Feb. 23, 1899, by cash, $5.00.”

Suit was originally brought by the plaintiff against the defendant and another before a justice of the peace on January 10, 1905, and it is claimed by the plaintiff that the account there sued on was the same as that upon which suit is here brought and that that action was finally determined, not upon its merits, on February 8, 1906, and the petition in the present action was filed on March 28, 1906.

We deem it necessary to consider but one question here and that is whether the payment credited on the account as of February 23, 1899, was made by the defendant or any person acting for her. This is put in issue by the answer of the defendant, which contains a general denial. Unless this payment was made by authority of the defendant within six years next prior to the bringing of the suit before the justice of the peace, the claim is confessedly barred by the statute of limitations. The only evidence on this subject is the testimony of the plaintiff who saj^s that the defendant’s mother brought this $5 to him. This is not sufficient. It is well settled that the burden of showing a payment, must be shown to have been made by the defendant or by his direction in order to take the claim out of the statute of limitations. The ground upon which payment made upon claims, which would otherwise be barred by the statute within the period limited by the statute, is that such payment is an acknowledgment on the part of the debtor that he owes the debt, and it surely was no acknowledgment that Mrs. Schmith owed this debt, that her mother made a payment on it. Tbe verdict must be set aside for error in overruling the motion for a new trial, because tbe verdict was not sustained by tbe evidence.

Henry, J., concurs.


text:
    EJECTMENT — RECEIVERS.
    [Cuyahoga (8th) Circuit Court,
    December 24, 1907.]
    Marvin, Winch and Henry, JJ.
    Robert J. Corlett v. Spencer D. Corlett.
    Receivers May Be Appointed in Actions Of Ejectment.
    Receivers may be appointed in actions of ejectment where it appears that the plaintiff has a good prima facie title and that there is imminent danger of the loss of rents and profits through the mismanagement of an insolvent defendant.

      George A. Groot, for plaintiff in error.

      McKisson & Minshall, for defendant in error.
   MARVIN, J.

Spencer D. Corlett filed his petition in the court of common pleas setting out that he had a legal estate and was entitled to the possession of certain real estate, described, in the petition, and praying to eject Robert J. Corlett from the premises. It was an ordinary petition in ejectment with a prayer for rents and profits, and damages for the detention of the premises by the defendant. On application of the plaintiff below the court of common pleas appointed a receiver. Motion was made in that court to dismiss the receiver. This motion was overruled,, and it is this order overruling the motion to dismiss the receiver that this proceeding in error as brought. The only ground upon which it is claimed the receiver should have been dismissed is that the court was without authority in the premises to appoint a receiver in the first instance. Receivers when appointed in this state are so appointed by virtue of the provisions of Sec. 5587 R. S. (Sec. 11894 Q. C.), which specifies the cases in which receivers may be áppointed, and one of the clauses of the statute reads: “in all other cases where receivers have been appointed by the usages of equity. ’ ’

Although grave doubts were entertained by each member of the court at the hearing of this case whether there was such usage in equity as to authorize the appointment of a receiver in a case like this, we have reached the conclusion that it may be done. The authorities upon the subject are cited in brief furnished us by the defendant in'error, and we note Alderson, Receivers, See. 401; Beech, Receivers, Sec. 494, and High, Receivers, See. 576, as well as the eases noted in the brief under these authorities, and accordingly we conclude that the court had authority to appoint the receiver.

The facts upon which the court acted are not before us and the result is that the judgment of the1 court of common pleas is affirmed.

Winch and Henry, JJ., concur.


text:
    APPEAL — ATTACHMENT—ERROR.
    [Cuyahoga (8th) Circuit Court,
    May 8, 1911.]
    Winch, Henry and Jones, JJ.
    Benoski v. Adams Co.
    1.-Error Lies to Order of Common Pleas Overruling Motion to Discharge Attachment.
    Error lies to the circuit court from an order of the common pleas court overruling a motion to discharge an attachment appealed to the latter court from a justice of the peace.
    2. Attachment Not Discharged for Failure of Service on Garnishee.
    An attachment will not he discharged on the ground that there was no service upon the garnishee in the attachment proceedings.
    ■3. Overruling Motion to Dissolve Attachment for Want of Authority of Corporation Officer Signing Bond.
    A judgment overruling a motion to dissolve an attachment on the ground that the attachment bond was given by a corporation, the name of which was signed by an officer who had no authority to sign its name to such bond, will not be reversed where there is no bill of exceptions showing the evidence acted upon in sustaining the bond and attachment.
    ERROR.

      Wing, Myler & Turney, for plaintiff in error.

      Albert Lawrence, for defendant in error.
   WINCH, J.

The Adams Co. sued Miss Benoski before a justice of the peace and instituted attachment proceedings for the purpose of gamisheeing her wages.

She filed a motion to discharge the attachment specifying no grounds'therefor; this motion being overruled, she appealed to the common pleas court, where it was again heard and determined adversely to her.

Thereupon she filed in this court a petition in error to reverse the judgment of the common pleas court, together with a transcript of the docket and journal entries of said court and the original papers filed with the justice of the peace, but we have no bill of exceptions showing what, if any, evidence was. heard on the. motion in the common pleas court, and there is no transcript of the docket of the justice of the peace, showing what, if any, orders were made by him in the matter.

In this court motion is made to strike the petition in error from the files, on the ground that error does not lie to the judgment of the common pleas court overruling a motion to dissolve an attachment. This motion is based upon a ruling of the Hamilton county circuit court in the case of Lyon v. Phares, 17 Dec. 792 (9 N. S. 614); but we do not agree with that court upon this point; the practice in this circuit has been otherwise.

Said motion is overruled.

Two reasons are assigned as requiring a reversal of the judgment of the common pleas court:

First. It is said that there was no service upon the garnishee in the attachment proceedings.

Having no record of the proceedings before the justice, we do not know but what the garnishee appeared and answered; indeed counsel for plaintiff in error suggests that the garnishee was cited for contempt, was brought in, examined and found to-have no funds belonging to the judgment debtor.

In any event, the point is not well taken. See Cleveland Sierra Mining Co. v. Sears Union Water Co. 4 Dec. Re. 208 (1 Clev. Law Rec. 117); Pennsylvania Ry. v. Peoples, 31 Ohio St. 537.

If the garnishee was not properly served, but owes Miss. Bénoski, there seems to be no reason why she should not collect what is due her from the garnishee without action.

Second. It is claimed that the attachment bond is defective because signed in behalf of the Adams Co. by a person who styles himself “manager” of the company, who also signs, individually, as surety.

It is said that it does not appear that the “manager” of this company had authority to bind it by signing the bond. Evidence may have been taken upon this point in the court below,, which satisfied said court that the bond was good.

- Having no bill of exceptions, we cannot tell what the fact isr in this respect, so this point can not be intelligently passed upon.

Judgment affirmed.

Henry and Jones, JJ., concur.