author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Swing and Smith, JJ.
    THE METHODIST PROTESTANT CHURCH OF CINCINNATI v. HARRY L. LAWS & FLORENCE. LAWS.

      Case pending in Supreme' Court — Facts under which no bar t other action relating to same subject.

    1. On the facts stated in the opinion of the court, the pendency in the Supreme Court of a petition in error to reverse the judgmen of the Circuit Court in the case -therein referred to, was no bar to the prosecution of the present action, and said judgment having been affirmed subsequently by the Supreme Court, the allegations'of the defendant set up in the second -defense of hisanswe have been settled and adjudicated in the other case between t’ same parties.

      Easement — Building obstructing right of way.

      2. That the structure erected by the defendant over the roadway o the plaintiff, and the occupation of it by the defendants in th manner shown, is in violation of the rights of the plaintiff.
    Appeal from the Court of Common Pleas of Hamilton county.
   Smith, J.

After the entry of the final decree rendered by this court in another cause then pending therein between these same parties, and in regard to the same roadway, and the respective rights of the parties therein, a proceeding in error was filed in the Supreme Court of Ohio to reverse our judgment.. While this proceeding in error was pending in that court,, the present action was begun in the court of common pleas, and is now here on appeal from the decree entered in that court. The opinion announced by the circuit court in the first case will be found in 7 C. C. Rep., 211, and the judgment rendered has recently been affirmed by the Supreme-Court, without further report. In the opinion referred to the nature of the controversy between the parties there-adjudicated, and the conclusions reached by the court are-fully set out, and it is therefore unnecessary to state them here, and the judgment of the court having been affirmed, we must accept that judgment as to the rights of the parties as to the matters involved therein, as correct and final.

The petition in the case now before us, sets out substantially the allegations of the petition in the other case as to-the roadway and the rights of the-plaintiff thereto, and the ownership by the defendants of the real estate immediately east of and adjoining the land,owned by plaintiff subject to-said roadway through the same, and then avers that such defendants, without any right to do so, are threatening, and proceeding to obstruct said roadway and right of way,, by placing the foundations of a stable which they are erecting,out in said roadway about six feet,and are carrying the-same to a considerable distance above the grade of said road,and arching the same over said road in such a manner as will permanently injure and interfere with the use of said roadway by the plaintiff and others entitled thereto. And the prayer was that the defendants be enjoined from in any way obstructing said road, or permitting or maintaining any obstruction therein. A temporary restraining order was also asked for.

The answer sets up three defenses: 1st. The pendency in the Supreme Court of the former suit on error, and the refusal of the Supreme Court to grant a temporary injunc^ tion against the maintenance of a gate at the west end of the roadway.

2nd. That Mrs. Laws is the owner of the real estate east of and adjoining that of plaintiff, (particularly described), and that the right of way referred to lies on the north end of her real estate. It then sets up that plaintiff’s real estate was acquired solely for usb as a cemetery, and was so used until a few years ago, and that the right of way referred to, during all that time, has been .used simply as anentiance to the cemetery, for persons having lawful right to enter therein, and was granted for no other purpose. That there has always been a gate at the west end of the right of way at the entrance of said cemetery, between posts about eight feet apart. It then sets up the agreement recited in the opinion of the circuit court referred to, and what was done under it, and the decree of the court in the former case. It further avers that about ■ — ■■—--■, the plaintiff subdivided the cemetery ground into lots for residence and building purposes, and has opened and dedicated public streets through the same, running north and south, connecting with another street running east and west, having its eastern terminus at the west end of said right of way, over the defendant’s premises, and both connecting with other streets running through populous parts of the city, so that said right of way over the premises of the defendants can no longer be used for the purposes for which it was granted, but if at all, only as an entrance for the public generally to said public highway, by reason whereof said easement and right of way have been lost and ceased. And inasmuch as it can no longer be used for the purpose for which it was granted, nor otherwise than as an entrance for the public generally to said public streets, the defendants pray that the easement may be declared abandoned, lost and at an end.

«. 3rd. They deny that they are threatening and proceeding to obstruct said road by carrying the foundations of their stable which they are building on the rear of their premises, out into said roadway about six feet, and carrying the same a considerable distance above the grade of said road, and arching the same over said road in such manner as will permanently injure and interfere with the use of said roadway by the plaintiffs and others entitled thereto. The distance between the posts occupied by the gate at the west end of said roadway has,never been greater than eight feet. If plaintiff ever had any right to a larger entrance to its property, it has been lost or abandoned. The defendants have left an entrance way of nine feet, and the arches of defendants’stable are sufficiently high to enable plaintiff a passage way from said roadway on to its property.

The reply denies the averment of new matter iix the answer.

The evidence shows this state of fact: That while the proceeding in error was pending in the Supreme Court, the defendants, against the written protest and remonstrance of the plaintiff, after removing the fence, and the gate which were the subjects of the former litigation,began to build,and finally completed, (no injunction having been granted in this case), a substantial structure upon and over this roadway at the west end thereof. It had stone walls on the east axxd west sides. The part of tho building which stood upon and over the roadway was thirty feet north and south, and twenty-seven feet ten inches east and west. Connected with this structure on the south of it was the stable of the defendaixts, there being a wall on the north end of the stable, with a large doorway from what was, or had been, the roadway. In each of the east and west walls, and about the center thereof, was a heavy wooden door, nine feet wide, and nine feet eight inches high. They were sliding doors, and. each was fastened by a spring lock, to open which from the outside a key that fitted the lock was necessary; but from the inside, the doors, when- locked, could be opened without a key. There was a window on each side of the doors spoken of, near the top of .the .wall. On these walls the roof of this structure rested, and the ceiling of the room thus formed over the roadway was eleven feet from the ground, which was a heavy concrete floor. This space of thirty feet by twenty-seven feet ten inches has, since the construction of the building;' been substantially used by the defendants, as if it was their own private property, the gates having been kept shut and locked, except when they saw proper to open them for their own purposes. And the plaintiff, or,so far as appears, no other person entitled to use this roadway to the said cemetery land, has ever used it, though it appears that when the structure was completed, the attorney of the defendant sent to the attorney of the plaintiff a key that would open the locks on both doors. The part of the roadway thus enclosed, has, from the time of its erection, been used as a place to store two of the three vehicles owned by the defendants, and for other things that they desired to keep there, but Mr. Laws testifies that there has always been left vacant.a~sufficient passage for vehicles. But practically, as we understand, it has been used exclusively by the defendants, athough the street laid out through the old cemetery ground comes right up to the west door of this structure, and there is nothing to indicate that any person has a right to open the doors and use the roadway, but all appearances would be to the contrary, and that there was no way there, and that the structure was private property Before it was erected, there was simply a gate in the paling line fence, about seven feet high, and over and through which a full view of this roadway could be had.

Whether the doors or the arch over them are of a sufficient height to allow free and unobstructed travel and the passage of vehicles, is not clear from the evidence adduced, They certainly are sufficient to allow any ordinary vehicles to pass freely. But whether they are of sufficient height to-allow, for instance furniture vans, such as are in common use, or loaded heavy wagons, does not clearly appear. We-incline to the opinion, judging from our own observation, that they are not. On this state of facts, we are of the opinion:

1st. That the pendency of the proceeding in error in the Supreme Oourt, to reverse the judgment in the former case, did not bar the plaintiff from bringing and maintaining this action, if the evidence otherwise shows that it is-entitled to the relief sought.

2. That the matters set up in the second defense, even if there was evidence to maintain them, (which was not, offered), had already been settled and adjudicated in the-other case.

3. That the structure erected by the defendant over this-roadway is in violation of the rights of the plaintiff, and ought not to be maintained as it now is. It is certainly a. different arrangement than could ever have been contemplated by the original grantor and grantee, or from that stipulated for in the subsequent contract between them; and under which defendants’ grantor was authorized to and did maintain a gate in the fence on the line between them, and' as was held by this court in settling the rights of the parties in the former case, to keep it locked, for the purpose of keeping those who were not entitled to use it, from doing" so, as under the circumstances disclosed it seemed necessary to do, but not thus wrongfully to interfere with its use by those entitled to use it. This, of course, would require-the defendants to furnish proper and reasonable facilities to those having such rights, to enjoy them.

Before the erection of this structure the way was a visible one, and practically open to those having the right to use it. Now the burden to them is greatly increased. Another wall with a similar d'oorway'thereon has been placed across the roadway, twenty-seven feet from the first, for the sole purpose, we imagine, of making the use of the roadway more difficult and burden some to those held to be entitled to use it, .and by the form of the' construction thereof, to deter them from such use, and of converting that part of the roadway covered and enclosed by 'this structure to the private use of the defendants.

We think that’ this is unauthorized, and should not be sustained by the court. Exactly what relief should be granted is a question of doubt and difficulty. It would seem harsh, and perhaps unnecessary to compel the defendants to remove the whole of this structure from the roadway. We are of the opinion that the substantial rights of the parties entitled to the use of the roadway can be protected and preserved without doing so. But we hold that the erection and maintenance of the east gateway,' at least, should be enjoined, and the use of that part of the roadway within the structure, in the manner in which it has been used by the defendants, or in any manner- calculated to infringe upon the rights of the plaintiffs, or those claiming under it, and entitled thereto, in the free enjoyment of that part of the roadway, should cease. In view of the fact that the evidence heard leaves it uncertain whether the west gateway, which is to remain, is sufficiently high to allow the- passing of large vehicles, we will, if desired, hear additional evidence upon that point, and if it should appear that it is not of sufficient height, will require it to be corrected.

It would follow, too, that if persons other than the plaintiff are entitled to the use of this roadway, that the defendants must furnish them keys by which they can unlock the gate, for the purpose of passage over the same.

It has seemed to us, however,that this is a case in which the parties might come to some fair and amicable agreement as to the matters in controversy, while the owners of the property entitled to the use of the roadway are few in number, and we suggest he propriety of making such an agreement.

G. B. Matthews and Mr. Archer, for Plaintiff.

Lawrence Maxwell, Jr., for Defendants,


source: Caselaw Access Project

author: Marvin, J.

license: Public Domain

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Jan’y Term 1897.)
    Before Caldwell, Hale and Marvin,. .J.J.
    THE AMERICAN ACCIDENT COMPANY OF LOUISVILLE, KY., v. ELIZABETH CARD, ADMINISTRATOR OF THE ESTATE OF OSMAN CARD, DECEASED.

      Insurance Policy — Condition of immediate notice—
    1. What is a sufficient compliance with the condition of the policy requiring “immediate” notice is a question of fact to be determined by the jury. Where the fact of the existence of a policy of accident insurance was unknown to the beneficiaries thereof, until it came to their knowledge by accident over four months after the death of the insured, when proper notice thereof was immediately given to the company, the condition of the policy for immediate notice of the accident is complied with.

      Knowledge of accident by local agent—
    2. The, fact that the local agent of the company who had taken the insurance, heard of the accidental death of the insured, is not such notice to the company as is contemplated by the policy.

      Failure to advise somebody of existence of policy not negligence—
    3. Failure of the insured to advise somebody of the existence of the policy so that immediate notice could be given, is not such negligence as would release the company from liability in a suit by the representative of the deceased.

      Proof of death — What showing sufficient—
    4. It is not necessary in the proofs of death to enter into every detail of the accident. The condition as to proof is complied with by filing affidavits showing in general the manner of the death.
    Error to the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

This case is brought to reverse the judgment of the court of common pleas.

The facts are that Osman Card had a policy of insurance in the insurance company named; that while that was in force he died on the 10th day of August, 1892; that his death was occasioned by his falling out of a window of a hotel in St. Louis, Michigan.

One of the conditions of the policy issued to him was contained in the words which I will read:

“Immediate written notice of accident must be given to the company's,secretary. Failure to give such notice shall invalidate all claims under this insurance. Positive proof of accidental death or loss of limb must be furnished within six months from the date of the accident. ”

In this case no notice was served upon the company at all until as late as the 22nd of December next after the death of Mr. Card. Indeed, it reached the company later than that; it was written and mailed on that day. And it was brought about that on that day, the 22nd of December, Mrs. Card, who was plaintiff below,as administratrix of the estate of her husband, received a written notice from the company that a premium was due upon the policy. Until that time she had no knowledge that such a policy was ever issued. Receiving that notice, she went immediately to Mr. Flick, who was a general agent of the company at Cleveland, and after talking with him started for the office of Col. Winship, as her attorney. Failing to meet him, she met Judge Neff, who was then practicing law in Cleveland-, and he wrote to the company, his letter reading:

“Cleveland, O., December 22, 1892. “The American Accident Company:
“Mr. Osman Card has, recently died from the effects of an accident. His widow desires me to request you to forward to my address all blanks necessary for making proofs of death. The number of policy is 10,651, Class A. Awaiting your reply, I remain
“Very Tespectfully yours,
W B. Nekf."

And this letter, as I have said, was the first notice that the company received. Mr. Flick testifies that he thinks he had heard of his death before that time; but however that may be, we do not think that was a notice to the company, such as is required; I mean any notice that Mr. Flick had received. I have already read the provision requiring immediate notice to be given, and the first question raised in this case is as to whether, as matter of law, the court should have held and instructed the jury that this was not an immediate notice under the terms of the policy.

I ought, perhaps, to add, that Mrs. Card- — -I have.already said that she knew nothing of the existence of the policy- — - examined the papers of her deceased husband, so far as she knew where they were, shortly after his death. This policy was not among those papers. She was not seeking for this policy especially,for she had no knowledge of its existence. The policy was not found by anybody until long after this suit was commenced; it was then found in the safe of Mr. T. H. Atkinson, who had an office in the same building, I believe, upon the same floor with Mr. Card. Mr. Atkinson has no knowledge as to how it came to be in his safe. Mr. Card had a box in a safety deposit vault in the city, but it was not there.

I come now to consider the question of whether, under the circumstances, this notice was “immediate”. Our attention is called to a case of Trask v. The Insurance Co., in 29 Pa. St. Rep., 198. That was a fire policy. There was a provision in that policy that in case of fire immediate notice should be given to the company. The property was destroyed by fire on the 2nd of May, 1851. Notice was sent on the 13th of May. No excuse was given for such delay, and the court in that case held that under the circumstances of the case the notice was not immediate. The first clause of the syllabus I have not before me, but the substance of that is, that without, a reasonable excuse being given for such delay, the lapse of time between the 2nd of May and the 13th was so great as to make it a failure to comply with the conditions, as a matter of law.

The case of Edwards v. The Ins. Co., 75 Pa. 378, is a -case upon a fire policy, and the notice was required to be given forthwith. The fire destroyed the property on the 30th of September, 1858. Notice was sent on the 18th of October of the same year; no excuse,in that case, was given no reason that could be any good reason for the delay: and the court held in that case that as matter of law, the condition had not been complied with. The first clause of the syllabus in that case states that as a proposition, and in the opinion of the court, found on page 380, this language is used:

“This rule of the company should receive a reasonable interpretation to mean as requiring due diligence under all the circumstances; that there should be no laches or unreasonable delay,and in that respect Trask v. Ins.Co.,”' — to which I have already referred in 29 Pa.,' — “seems to have been somewhat harsh. This case, however, has not the same extenuating circumstances, and we must abide by the ruling in that case. ”

So that this was a case where there were no extenuating ■circumstances, and the court say that the rule may have been harsh in the other case.

In the case of Wood v. Ins. Co., 133 N. Y., 394, the language of the policy, or the condition-of the policy was: “Notice should be given forthwith.” The fire occurred on the 4th of February, 1882. No notice was ever given, but the proofs of loss were filed about the 23rd of February, of the same year. And in that case the court did not hold that the notice, as matter of law, was not given in time. It is true that the reason why the case was decided as it was, and the assured permitted to recover, was that there was a waiver as to time in the matter of proof of loss; but there is no holding that as matter of law the lapse of time before notice was a failure to comply with the conditions.

The case of Ermentrout et al. v. Ins. Co., 65 N. W. Reporter, 635, is a Minnesota case, a3 I remember, and the condition there was that immediate notice should be given. The fire occurred on the 12th of August. The notice was given on the 9th of October. There it was held, as a matter of law, that the company was released. By reading that case it is apparent that there was no reasonable excuse for that delay. The facts of the case are such that there was no reason why that notice could not have been given long be. fore; and we think that case is not one that would necessarily hold that the notice in this case, as matter of law, was not in compliance 'with the terms of the policy.

The case of Gamble v. The Accident Assurance Co., 4 Irish Com. Law Reports, 204, was a case of an accident policy, and the notice was required to be given within seven days after the accident. That is an exhaustive case, and is quoted from very largely in the brief in this case. And it was held in that case to be a condition precedent to any recovery that the notice should be given within seven days. The accident in that case resulted in immediate death. It is urged that nobody knew of the situation, so as to give the notice. Indeed, the arguments were made, it seems to me, all that could be made there, that the condition ought not to be enforced legally. The court held it must be enforced, and went on to give reasons why it' should be — -the parties should be held strictly to the conditions. It will be observed in that case that fixed time was given within which notice should be served upon the company. The party, as the court said, need not have made that contract, and the party assured could have provided, could have made such provision that somebody would see to it that that notice was given. We think the authorities in this country, where the notice is to be given immediately or forthwith-, are not, however, such as to justify saying that a lapse of the same period of time that is named here, or of a longer period, would, as a matter of law, be a' breach of that condition. I have quoted from the Supreme Court of Pennsylvania, where it is said that the condition must have a reasonable construction — I have only quoted from one where that language is used, but it is found, in a large number of cases —and a reasonable construction under all the circumstances.

It is said here that the circumstances are such as to afford no reasonable excuse, because this policy was issued to Mr. Card,and the personal representative of Mr. Card would be the one to collect from the insurance company, and it differs from a case where the beneficiary would be an outside party, somebody other than the personal representative; but that what would be negligence on the part of the deceased would be negligence on the part of the representative; that is to say, if the deceased was negligent in caring for the policy and seeing that somebody knew about it, then it would be negligence to be imputed to the administrator, for the administrators right would only be the right of the deceased.

But it seems to us that that cannot quite be said, or, rather that, as applied to this case, that would not necessarily work out what is right. We can well conceive a case where one might leave in his desk, or in his safe, full directions as to where documents were, and the like, but that seven, more than ten, more than twenty days might elapse before an administrator was appointed. It might not be known that it was necessary to appoint an administrator. One might die a long way from home, and it would be unseemly, until the body was disposed of, to be seeking for the appointment of an administrator, so that notice might be given. In this case Mr. Card may be said to have been negligent that he did not notify somebody about that policy; and yet I apprehend that there are a great many men who are reasonably careful in their business, who have never notified anybody about all their insurance or where their policies can be found.

A case was decided in November of this year, by the Superior Court of Cincinnati, in Crane & Co. v. Standard Life & Accident Insurance Co. 3 Nisi Prius Reports 318, Judge Hunt delivering the opinion, and it was concurred in by all the judges, where a policy of insurance was issued by the company to a manufacturing concern, by which the insurance company undertook to protect or indemnify a manufacturing concern against liability on account of the injuries that should be suffered by employes of the manufacturing establishment. In that case there was a provision that the insurance company should receive “immediate” notice of accidents. The party who brought the suit was injured on the 13th day of July, 1893. No notice was served upon the company until the 17th day of November. The Superior Court of Cincinnati,in General Term, held that it was proper to leave to the jury the question of whether, under the circumstances of that case, the condition had been complied with; and in the opinion of a large number of authorities are cited in support of the position taken by the court. Among them is the case of Lyon v. The Assurance Co., 46 Iowa, 631. There an injury occurred on the 27th of September, 1875. The provision of the policy was that the notice must be immediate. Notice was served on the 28th of October. The Supreme Court of Iowa held that it was properly left to the jury to determine whether the condition had been complied with. The language of the syllabus, third clause, reads:

“What is a sufficient compliance with the condition of the policy requiring immediate notice, is a question of fact to be determined by the jury.”

To the same effect is the case of Carpenter et al. v. German-American Ins. Co., 31 N. E. Rep., 1015. That case is a case decided by the Court of Appeals of New York. It is a fire policy. The fire occurred on the 10th of October, 1883; the proofs were not made until the 2nd of February, 1884; and yet the condition read that in the case of loss, “the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath.” The court, said, as matter of law, that the 115 days that elapsed between that fire and the furnishing of the evidence to the company — that it was not, as matter of law, a failure to comply. And a fair interpretation of that language, I apprehend, is that the assured should not only give immediate notice, but should immediately furnish a particular account of the loss. The court said that it was a question of fact for the jury, as to whether that was complied with.

In this case the court submitted to the jury the question of whether that condition had been complied with, and we think there was no error in that submission,

The further question is raised that proofs of death were not furnished, Without stopping to go into details of what transpired in the way of correspondence, we call attention to the fact that on the 23rd day of January, 1893, Mrs. Card made an affidavit, in which she stated that her husband met with an accidental death on the 10th day of August, 1892, by falling from a window of a hotel at St. Louis, Michigan. On the same day, Judge Neff made an affidavit that he kne.w of the death, and a-clergyman made an affidavit that he attended the funeral, and an undertaker made an affidavit, or at least a certificate. Of course,none of these parties, other than Mrs. Card, knew of the circumstances of the death. ¡¡Mrs. Card’s affidavit gave no other details than that he died by falling from a window of his hotel. The court charged the jury that the condition as to proof was complied with, if affidavits were filedjshowing in general the manner of the death. It is urged that that is too indefinite. But we think the fair understanding of what was the accident was sufficient; that it was not necessary to enter into every detail- — whether in falling he struck his head upon the coping of some window underneath, or whether he struck his head upon a stone when he fell upon the ground, or the like. And we think that the court properly charged the jury in that regard.

John O. Winship, for Defendant in Error.

S. E. Williamson, for Plaintiff in Error.

The court was asked to say to the jury that, there was.no waiver on the part of the company of the proper proofs of death. It does not appear that the court gave it, and we treat it as though it affirmatively appeared that the court did not give it. I know one or two items in the record where that does not appear. The court, on pages 71 and 72 of this record, states to the jury what issues they, are to pass upon, and the first one that the court states is: Was immediate notice given ? Second — Were proofs furnished within six months? And,, then, third — Was suit brought within three months after the proofs were furnished ? I ought to say that one of the provisions is, that suit shall not be brought until three months had elapsed after the proofs were furnished.

The court, in its instructions to the jury', nowhere intimate that there was any waiver, or that the plaintiff below could recover, unless she established that she had complied with the condition by giving immediate notice under all the circumstances, and had complied with the condition requiring proofs, and with.the condition of not bringing suit until three months after the proofs were furnished.

So we think that the court did not err in declining to give that charge, because there had been nowhere, so far as it appears in the record, any intimation by the court that they might find that there had been any waiver. Upon the record we are satisfied that there was no error that would justify a, reversal, and the judgment of the court of common pleas is affirmed.


author: Finley, J.

text:
    (Third Circuit Hancock Co., O., Circuit Court,
    December Term, 1896.)
    Before Day, Price and Finley, J. J.
    SOLOMON LATTIMER v. THE MOSAIC GLASS CO., et al.

      Ohio corporation removing to other state — Mortgage executed there covering property in Ohio — Validity—
    1. A corporation incorporated an'd organized under the laws of Ohio, which abandons its business in this state and removes its plant to another state, and whose board of directors have removed to such other state and there proceed 'to do business as an Ohio corporation under a certificate of authority from such other state, may, nevertheless, execute in such other state a mortgage upon its real estate in Ohio, which, when properly recorded, will operate as a lien upon its real estate in Ohio.

      Once a corporation, ahvays a corporation until legally dissolved—
    2. A corporation, duly organized under the laws of Ohio, continues to have corporate existence until dissolved in the manner provided by statute, and, until dissolved, its contracts and obligations are binding upon it, and those dealing with it; a party dealing with a corporation is estoppel to deny its corporate capacity.
    ' Appeal from the Court of Common Pleas of Hancock county. _
   Finley, J.

This cause comes into this court by way of appeal from the judgment and finding of the court of common pleas of Hancock county, at its September term, A. D. 1896.

The contest is between the plaintiff herein and The Findlay Clay Pot Co., a defendant in the action, as to priorities of liens, the plaintiff claiming to hold the prior lien on the property of The Mosaic Glass Co., by virtue of a mortgage executed by the last named party, a corporation, on or about the 5th day of October, 14.

The defendant, The Findlay Clay Pot Company,claims to hold a lien by virtue of an attachment upon the property of The Mosaic Glass Company, levied about the 14th day of September, 1895, which, though younger in point of time than the alleged lien of the plaintiff, is contended by the defendant, the Clay Pot Company, to be superior to and have precedence over that of the plaintiff, for the reason, as alleged by the Findlay Clay Pot Company in its answer filed herein April 4, 1896, and its supplemental answer filed December 8, 1896, as follows:

“First — That the glass company being an Ohio corpora.tion, with its office and place of business in the city of Fostoria, Ohio, about the Slst of August, 1898, abandoned its plant, office, place of business and residence in said city, ceased all business operations and manufacturing there, and removed its office, place of business and manufacturing plant and machinery to New York, where it has since had and maintained its only place of business,and has ever since operated and transacted its business under its corporate name The Mosaic Glass Company; and that by reason of this abandonment of the plant and place of business, it forfeited its charter and ceased to have corporate existence so as to have power, as such corporation, to execute a mortgage in the state of New York upon its property in Ohio that, in law, would operate as a lien having priority over the attachment lien of the answering defendant, The Clay Pot Company. And further alleges that the mortgage in question, upon which the plaintiff seeks to hold in this case, was so executed in New York state, under the circumstances here indicated, and having been so executed, is, as against the Clay Pot Company, void, and without authority of law.
“As a second ground why the attachment lien of the answering defendant, The Findlay Clay Pot Company should have priority over plaintiff’s alleged mortgage, said answering defendant says that it had no notice or knowledge of the existence or execution of said mortgage other than that afforded by an inspection of the record ■ thereof, and that the same is void as against the lien of this answering defendant, The Findlay Clay Pot Company, for the reason as shown in the mortgage itself, that the conditions of it are so vague,uncertain and indeterminate, and do not sufficiently describe the debt therein attempted to be secured, as to put this answering defendant upon notice of the nature and extent of plaintiff’s alleged lien, and, therefore, as to said Findlay Clay Pot Company, it is null and void.”

The plaintiff, by reply to the answer and supplemental answer, puts in issue the several contentions of the Findlay Olay Pot Company.

The City of Findlay is also a party defendant, claiming to hold a prior lien upon a portion of said premises to either of the other parties. Its claim was conceded below on the trial of the case, and decree rendered accordingly, and the same is not disputed here.

On the trial of the case in this court, no serious claim was made on the part of The Findlay Clay Pot Company to any portion of its defense set forth in its answer, except as to the two propositions herenbefore mentioned, and therefore all questions in the case practically drop out of it, except those two.

On the trial of the case, it was agreed, in writing, signed by the parties, that the following facts are true:

First — That The Mosaic Glass Company was a corporation incorporated and organized under the laws of Ohio, with its office and place of business in the City of Fostoria, Seneca County, Ohio. .
Second — That from the time of its incorporation and organization to about the 14th day of March, 1891, until about the 31st day of August, 1893, The Mosaic Glass Company was operated, transacted its corporate business, manufactured and sold glass, and had its plant, office and place of business in the City of Fostoria, Seneca county, Ohio, and a majority of the members of the board of directors, as also its officers, resided there.
Third — That on or about the 31st day of August, 1893, The Mosaic Glass Company vácated its plant, office, and place of business in said city and state of Ohio, ceased all further business, manufacturing and operations there, and removed its office, place of business and manufacturing plant and machinery, except its buildings, to and located in the city of Addison, in the state of New York, where it has since had and maintained its office and place of business, established its plant, operated and transacted its business, and manufactured glass under its corporate name of The Mosaic Glass Company, as an Ohio corporation, and under the charter originally issued by the state of Ohio, and a certificate of authority from the state of New York, to do business in New York, as an Ohio corporation,
Fourth — On the first of January, 1806, The Mosaic Glass Company became insolvent, and has not transacted business, or manufactured glass, and has ceased operations.”

Do these facts, which constitute the ground of the answering defendant’s contention, operate to divest The Mosaic Glass Company, as a corporation, of the power to execute a mortgage in the state of New York, upon its real estate in Ohio, so as to make it a binding and subsisting lien upon said premises as against a subsequent lienholder ? This is the question presented for our consideration.

Counsel for defendant contends that inasmuch as section 3218 of the Revised Statutes of Ohio, provides that the corporate powers, business and property of corporations, must be exercised, conducted and controlled by a board of directors, and that a majority of the directors must be citizens of the state; that, when the directors cease to be citizens of the state; and attempt to exercise their powers as directors in another state to which the property and business has been removed, the corporation thereby so far forfeits its franchise that it ceases to be a corporation within the meaning of the statutes to the extent that its so-called board of directors may make a valid mortgage upon its property within this state; contends that this condition of affairs differs from and is unlike a corporation which merely ceases to do business, the directors nevertheless remaining in this state; contends that the difference lies in the fact that in the one case, by removal from the state, bag and-baggage, the corporation puts itself beyond the visitorial power of the state to take away its charter, while in the other that power remains; and that, as a principle of law, there can bo no corporation de facto, unless there is back of it a corporation de jure, and cites in support of this principle a number of authorities; among others, the 20th Ohio Reports.

None of the cases cited by counsel support the claim made by him in this case, nor are the facts the same in any case cited; nor have we-been able to find a case directly in point. The case of Phillips, Beckel & Co. v. The Knox County Mutual Ins. Co., 20th Ohio, 174, cited by counsel, simply goes to the proposition that the property of an incorporated company cannot be insured by the stockholders as their individual property in a mutual insurance company, and therefore, except in some loose, disjointed argument, indulged in by the member of the court rendering the opinion in deciding the question, that case cannot be said to touch the questions in controversy here.

It is true, as has been held by numerous courts, including our own, that the creation of a corporation is an exercise of sovereign legislative power, which cannot be done beyond the territorial limits of the state exercising such power. In other words, the state of Ohio cannot create a corporation in New York. It is also true that the residence of a corporation is within the state creating it, and where its principal office or place of business is, which has been determined over and over again by our Supreme Court and other courts.

But those questions are not in issue here. Where a corporation abandons its place of business in the state,'and moves out of it, it would be undoubted ground for taking away its franchise for that reason. But the question presented here is, where that is not done, does it, until that is done, continue to be a corporation with power to execute a mortgage on its property in his state, which will be binding as such ?

We think it does. We are of opinion that a corporation created by the laws of Ohio can forfeit its franchise and cease to be a de-jure corporation only for the causes and in the manner provided by statute, which are to be found in the Revised Statutes, sections 6761 to 6793, and that “once a corporation, always a corporation, “until dissolved in the manner provided by law, so far as its right extends to sue and be sued,contract and be contracted with, To hold otherwise, would be to place the very existence of a corporation at all times in jeopardy, and subject to have its acts and contracts declared null and void, and its obligations to parties dealing with it declared of no validity, because of the alleged existence of some one of the many grounds for which our statute declares the franchise of a corporation may be taken from it and the corporation dissolved. Until a corporation has been legally dissolved in the manner provided by law, its contracts, obligations and liabilities must be taken and held to be binding upon it and those who deal with it, to the same extent and upon the same principle that the official acts of a de facto officer are, though he holds no' de jure right to the office. How can it be said that the change of residence of the members of the board of directors from Ohio to New York, operates to take away the life of the corporation itself? It is not the members of the board of directors which give a corporation its validity as such, but it is its character, granted it by the sovereign power of the state, which alone can destroy the life it gave.

Another principle is involved in this question which is destructive of the defendant’s claim. The defendant’s claim is founded upon dealings with this same corporation, and it is a well settled principle that he who deals with a corporation is estopped to deny its corporate capacity, Both the plaintiff and defendant dealt with The Mosaic Glass Company, and their contention in this case grows out of their dealings with that corporation, and neither one can be heard in this proceeding to deny the existence of the corporation with which they dealt.

Is the second ground of defense of The Findlay Clay Pot, Company well taken; viz., that the conditions of the mortgage of plaintiff are so vague and uncertain and indeterminate as to fail to sufficiently describe the debt therein, and put the answering defendant upon notice of the nature and extent of paintiff's lien, and therefore void? We think not. The bond on which plaintiff’s mortgage rests recites that the indebtedness is $3,000, payable within one year from the date of the bond, with interest, and provides that the bond and mortgage accompanying it are given as collateral security to certain notes made by The Mosaic Glass Company, held by Lattimer and Winton, and the renewal of such notes to be made thereafter. The mortgage itself recites that it is given as security for this sum of $3,000, “according to the condition of a bond, this day executed and delivered by said Mosaic Glass Company to the plaintiff. This, we think, is a sufficient description of the debt, both as to the amount and the condition of payment, when duly recorded, to put a subsequent purchaser or lienholder upon full notice of the right of the plaintiff, and the nature and extent of his lien.

This view of the case is fully sustained by the authorities, In Jones on Mortgages, it is said in the text:

“A mortgage conditioned to pay a note in a certain penal sum, when in fact the note is without penalty, is not invalid for want of reasonable certainty. The whole sum of the penalty may be due, and no one should be misled except through his own negligence to make inquiry as to the amount due.’’ Citing, in support of this proposition, Frink v. Branch, 16 Conn., 260.

It is further said, in Jones on Mortgages:

In genera], it may be said, that a mortgage is not invalid, either between the parties or as of third persons on account of the uncertainty in description'of the debt, when, upon the ordinary principle of allowing extrinsic evidence to apply a written contract to its proper subject-matter, the debt intended to be secured can be shown. That the inquiry is,does the debt exist? If it does, it is not essential that there should be any evidence of it beyond what is furnished by the recitals of the deed.”

L. E. Hurin, for Plaintiff.

J. A. Bope, for Defendant.

Independent of this authority and the citations therein, we think this question has been determined by our own Supreme Court in the case of Gill v. Pinney, Adm’r., 12 Ohio St., 38, the syllabus of which reads as follows:

‘‘A mortgage is not invalid as to third persons on account of uncertainty in description of the debt intended to be secured, when, upon the ordinary principle, allowing extrinsic evidence to apply a written contract to its proper subject-matter, the debt intended to be secured may be shown as between the parties”

To the same effect is the holding in Hurd et al. v. Robinson et al., 11 Ohio St., 232.

Holding these views of the case at bar, we find that, as between the plaintiff and the defendant, The Clay Pot Company, the plaintiff has the first lien on said premises, and judgment will be entered accordingly at the costs of the appellant, The Findlay Clay Pot Company.


author: Adams, J. Pomerene, J.,

text:
    (Fifth Circuit — Licking Co., O., Circuit Court,
    March Term, 1896.)
    Before Pomerene, Adams and Kibler, JJ.
    A. B. HARRIS and ETTA HARRIS v. W. V. HARRIS.

      Statute, of Limitations — Computation of time.

    In computing the time within which an action is barred by the statute of limitations, the day on which the cause of action accrued is to be excluded.
    Error to the Court of Common Pleas of Licking County.
   Adams, J.

There ivas a trial in the court below, and a verdict and judgment against defendants, and in favor of W. V. Harris, plaintiff below. The case is brought here upon the single question made by a general demurrer to the amended petition. The court overruled that demurrer, and that is the only question that is presented for the consideration of this court.

Briefly stated, the petition alleges that W. V. Harris, being a surety on a note for A; B. Harris and Etta Harris, in an action in the court of common pleas of this county, a judgment was rendered against all of the makers of the note, and that afterwards, on March 16, 1887, W. V. Harris paid the sum of $436.18 in full of that judgment; that that was paid for the benefit of the .defendants below, and that it was their debt for which he was surety only. That payment was made on the 16th day of March, 1887.' The original petition to recover that sum was filed in the court of common pleas on March 16th, 1893, and a summons of that date was issued and served. So that the action was commenced March 16tb, 1893.

The single question made by the demurrer is, whether or not that claim was barred by the statute of limitations.

That is a question on which there is a considerable conflict of authority, and upon that question this court is not unanimous; but we are agreed that Harris’s right of action accrued to him on March 16th, 1887; that instantly, upon the payment of that money, he had a right of action against the defendants below, and be could have maintained a suit for the recovery of that money, after the payment' of the money, and on the same day, March 16th, 1887, and that the six years’ statute of limitations applies. Williams v. Williams, 5 Ohio St., 444; Neilson v. Fry, 16 Ohio St., 552.

The question on which we are not agreed is as to how the six years shall be computed; whether the first day, March 16th, 1887, shall be included or excluded. On that, question, as I said before, tbe court is not agreed. Speaking for myself, it seems to me that section 4951, of the Revised Statutes, should control. Section 4951 reads:

“(How time computed.) Unless otherwise specially provided, the time within which an act is required by law to be done, shall be computed by excluding the first day and including the last; and if the last be Sunday, it shall be excluded.”

That was an amendment of section *597 of the Code, Section 597 of the Code, reads as follows:

“The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.”

Section 4951, viewed in the light of Code section 597, should control, but in that opinion neither of my associates concur, and so it leaves the question to be determined by the authorities, unaided by any provision of the statutes of our state, and unaided, as we think, by any direct decision of our Supreme Court.

In the seventh volume of Wait’s Actions and Defenses, on page 231, under the head of “Computation of Time,” we find this statement:

“The question has undergone no little discussion in the courts, whether in the computation of time, under the statute, the day on which the cause of action accrued is to be included or excluded. The rule, as stated in accordance with the early English cases, is, that where the computation of time is made from an act done, the day on which the act is performed is included, because the act is the terminus a quo,the computation is tobe made; and there being in contemplation of law no fraction of a day, (unless when the priority of acts done on tbe same day becomes necessary), the terminus is considered as commencing the first moment of that day. Washington, J., in Pearpoint v. Graham, 4 Wash., (C. C.), 232. This rule has been applied to cases arising under the statute of limitations by some of the courts. See Presbrey v. Williams, 15 Mass., 193; Ryman v. Clark, 4 Blackf., (Ind.), 329. And see Arnold v. United States, 9 Cranch, (U. S,), 120. But there can be no question that the preponderance of American authority is the other way. Bemis v. Leonard, 118 Mass., 502; s. c., 19 Am. Rep., 470; Lang v. Phillips, 27 Ala., 311; Owen v. Slatter, 26 Id., 547; McGraw v. Walker, 2 Hilt., (N. Y.), 404; Smith v. Cassity, 9 B. Monr. (Ky.), 192; Weeks v. Hull, 19 Conn., 377; Blackman v. Nearing, 43 Id., 56; s. c., 21 Am. Rep., 634; Judd v. Fulton, 10 Barb., 118.”
“In Pennsylvania a debt was due October 6th, 1862; suit was brought October 6th, 1868, and it was held that the action was not barred by the statute. Menges v. Frick, 73 Penn. St., 137; s. c., 13 Am. Rep., 731. See, also, Brisben v. Wilson, 60 Pa. St., 452. So, where a statute provided that every action on a judgment shall be brought within ten years next after the judgment was entered, and not afterward, and judgment was entered March 15th, 1859, and an action was commenced on it March 15th, 1869, it was held to have been commenced in time. Warren v. Slade, 23 Mich., 1; s. c., 9 Am. Rep., 70.”

And in Am. & Eng. Enc. of Law, volume 13, on page 747, the same rule is given in substance, and there are numerous authorities cited; and also in volume 26 of the same work, pages 5 and 6, there is a very extensive collection of authorities cited in support of the text.

In 2 Wallace, there is a decision by the Supreme Court of the United States, decided in 1864. The case begins on page 177, but I read from the opinion of the court on page 190:

“The rent becoming due on the first day of May, the one month from that time within which the payment was required to be made to prevent a forfeiture, expired on the 1st day of June following. In the computation of time the day upon which the rent became due was to be excluded. The general current of modern authorities on the interpretation of contracts, and also of statutes, where time is to be computed from a particular day or a particular event, as when an act is to be performed within a specified period from or after a day named, is to exclude the day thus designated, and to include the last day of the specified period. ‘When the period allowed for doing an act’, says Mr. Chief Justice Bronson, ‘is to be reckoned from the making of a contract, or the happening of any other event, the day on which the event happened may be regarded as an entirety or a point of time, and so excluded from the computation.’ Cornell v. Moulton, 3 Den , 16; see, also, Bigelow v. Wilson, 1 Pick., 485.”

In 73 Pa. St,, reported in volume 13 Am. Rep., page 731, the opinion of the court is very short. It says:

‘‘The only question necessary to be considered in this case is, was the plaintiff’s action barred by the statute of limitations? The last item of timber in the account sued on was delivered on the 6th of October, 1862, and the action was commenced on the 6th of October, 1868. The act provides that actions for account shall be commenced and sued ‘within six years next after the cause of such actions accrued, and not after.’ There can be no doubt that the cause of action in this case arose on the day the timber was delivered. If that day is to be excluded from the reckoning, the six years had not expired when the suit was commenced. But why, even if the words of the act are to receive a strict and literal construction, should it not be excluded? ‘Within six years next after the cause of action accrued,’ as applied to the facts of this case,must necessarily mean within six years next after the day on which the timber was delivered. The day of the delivery must, therefore, be excluded in counting the time within which the action may be brought. If suit may be commenced within six years next after the day on which the cause of action arose, then it is too plain for argument that that day is not to be included in the computation. But if there could be any doubt as to the proper construction and meaning of the act, the rule must now be regarded as settled that when an act of assembly requires a thing to be done, within a certain time from or after a prior date, and deprives the party of a right for omitting it, the most liberal construction is to be chosen and the furthermost time given from which the reckoning is to be made. In other words, the day from or after which the count is to be made is to be excluded in computing the time within which the act may be done. ” Citing a number of cases.

In a case reported in 54 Am. Rep., page 146, a case decided in New Jersey, being an action for money had and received; the money was received on June 6th, 1878, and the suit begun on June 6th, 1884. The question was made whether'or not that suit was barred. That court says that the modern rule is that the first day should be excluded; and in citing a case in 15 Veasey, 248, Lester v. Garland, gives this reason:

“Our law rejects fractions of a day. The effect is to render the day a sort of indivisible point, so that any act done in the compass of it is no more referable to any one than to any other portion of it; but the act and the day are co-extensive, and tharefore the act cannot properly be said to be passed until the day is passed.” It cites,, in a foot note, 46 Am. Rep., 410,

This method of computing time is of daily application in the filing of motions for new trials, bills of exceptions, petitions in error and appeal bonds.

With such review as we have been able to give of the authorities on this question, although we recognize the fact that cases can be found which hold the other way, a majority-of the court is of the opinion that in the computation of the six years, that March 16, 1887, should not be included; so that the action would not' be barred on the 16th of March, 1893; and the judgment of the court below is, therefore, affirmed.

Pomerene, J.,

(dissenting.)

I am compelled to dissent from the opinion of the majority of the'court in the conclusion arrived at.-

I will briefly state my views of the case. I do not think that the authorities cited and referred to have much bearing upon the question before us. All those authorities are based upon the peculiar statutes of the states. Now, we have a statute (and which, it is conceded, governs):

Fulton & Fulton, for Plaintiffs in Error

J. V. Hilliard, for Defendant in Error.

“ Within six years. An action upon a contract notin writing, either express or implied.”

We all agree that this section of the limitation act governs and controls this case. The language is ‘‘within six years.” We further agree that an action could have been commenced on this accountjOn the 16th day of March, 1887. This action was commenced on the 16th day of March, 1893. Hence, allowing this to be within time, this party is allowed seven 16th days of March in which to commence this action, and I think the party would only be entitled to six 16th days of March. Allowing this suit to be commenced within this time, it seems to me that they have six years and one day within which to commence this action, and not six years, as prescribed by the statute.

Another reason why I am forced to dissent from the conclusion of the majority of the court. This same question was before this court, differently constituted from what it now is, two years ago, at Canton. Exhaustive briefs had been prepared, and a large amount of money depended upon the question. It was the unanimous opinion of the court, as then constituted, that it would be one day too late. I would dissent for that reason.

This exact question has never been before the Supreme Court of Ohio, so far as I know.'


text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court,
    Jan’y Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    CHARLES W. HARKNESS, ADMINISTRATOR OF THE ESTATE OF STEPHEN V. HARKNESS, DECEASED, v. CHARLES M. SCHIELY, JULIUS N. SCHIELY, et al.

      Re-payment by Str. R. R. Co. of part of assessment for improving street, to property owners — Who entitled to the money as between present and preceding owner or lessee who had paid the assessment.

    Where a franchise is granted by the city council to a Street R’y. Co., to use certain streets, with the condition that the company re-pay to the owners of the property thereon a certain proportion of the assessment paid for improving such streets,such money is payable to the party who is the owner of the property at the time of such repayment, and not to the party who previously owned the property and actually had paid the assessment. And this will apply where a lessee of property had paid the assessment at the time under the terms of his lease, which has expired before payment by the Street R. R. Co. was to be made and the owner has again become entitled to the possession of the property. “
    Error to the Court of Common Pleas of Cuyahoga county#
   Marvin, J.

Suit was brought in the court of common pleas by Charles W.' Harkness, as administrator, against these heirs, of Schiely, and the facts are agreed, and are, substantially, these:

Michael Schiely was the owner of certain real estate in Cleveland, fronting on Willson avenue. On the 19th day of November, 1873, he executed a lease of that property to Stephen V. Harkness,. the term to begin on the first day of December, 1873, and continue for a period of twenty years. Harkness was to pay a certain annual rental, and in addition to that the terms'of the lease are that he shall pay to Schiely all taxes and assessments for improvements that shall be levied upon the property during the continuance of the term granted by the lease.

■In 1888, on the first day of March, Harkness died. The administrator, Charles W. Harkness, then took into his possession this leasehold estate as a part of the personal estate of the deceased Stephen V. Harkness.

Some time before the lease expired — the time is not given in the agreed statement of facts- — -and before the assessments, which are the subjects of this controversy, were levied, Schiely died intestate, leaving the defendants here, as have already stated, his heirs at law.

On the 8th of September, 1892, the city of Cleveland levied an assessment of $5.25 per-foot front for the improvement,grading and paving of Willson avenue, and on the 10th of September, 1893, the city levied a further assessment of $1.75 per foot front for the same purpose upon this same property.

Instead of paying these assessments to Schiely or to the owners of the property,^who succeeded to Schiely’s estate by inheritance, by consent and agreement all around, the assessments were paid directly to the city officers, so that they never passed through the hands of the Schielys,

The improvements were made upon the street, and on the 10th day of January, 1894, that being one month after the expiration of the term granted by the lease, while Harkness, the administrator, was still in possession of these premises, but claiming no right to such possession other than that certain*buildings had ben erected upon the lands by Harkness, and that the terms of the contract between the lessor and the lessee had not been fully complied with as to the payment for such buildings, and when he was holding on for the purpose of having an adjustment in regard to that matter, the Cleveland City Street Railway Company, being desirous of constructing a street railway along Willson avenue, sought the consent of the property owners fronting upon that street, because under the statute, before a franchise could be granted to the street railway company to construct such railroad, they must obtain and have filed with the proper officers- of the city the consents of one-half of the property owners, computed by the foot front. They applied to the heirs of Michael Sehiely,and obtained such consent from a part of these heirs, but not from all of them.

Upon obtaining these consents, and for the purpose of obtaining them, the street railway company promised and agreed with the property owners that it would accept no franchise from the city to construct such road, which should not contain a provision that the railrod company would reimburse the tax payers or the owners of the property who had paid for the improvement of the street, such share of that money so paid as would pay for the pavement of so much of the street along the line of it as was bounded on the east by a line one foot east of the east rail of the street railroad; and on the west by a line one foot west of the west line of the street railroad, this to be counted as the proportionate share that the railroad company should reimburse the abutting property owners for.

On the 19th day of February, 1894, the city council passed an ordinance granting the franchise to the street railroad company to construct the road. The language of that franchise, so far as it is applicable or necessary to call attention to it here, is,that the street railroad company will pay to the owners of property, within sixty days after the acceptance of this ordinance, on such paved portion of said Willson avenue their pro rata share of the amounts heretofore paid by them, or by their predecessors in title, for such pavement as is embraced in a strip sixteen feet in width, extending the entire length of the same; and shall pay the city for a strip sixteen feet in width at all street intersections.

The language differs somewhat from the agreement made with the property owners. The language of the agreement is that the street railway company will reimburse those who have paid, etc., and the language of the ordinance is that the street railroad company will pay to the property owners on such paved portion of said Willson avenue their pro rata share of the amounts heretofore paid by them or their predecessors in title. In the ordinance the , strip to be paid for is spoken of as a sixteen foot strip, and in the agreement it was to be bounded by the line which I have mentioned and which I suppose is practically the same,

' That franchise was accepted by the railroad company, and the amount to be paid upon the property which was under lease to Harkness is agreed to be $550.00. That amount the railroad company have, by agreement of the parties, placed in the keeping of one of the banks of Cleveland, and it is drawing interest, and it is to be paid to such party as shall be ordered by the court, and the question is to whom it belongs — to whom it shall be paid.

Counsel who have presented the case have not found any authority directly in point, as we conceive, and as we understand counsel to say.

We have been equally unable to find any case directly in point.

We are cited to cases by counsel for the administrator of the Harkness estate, which clearly establish that, where one pays for another money which ought not to have been paid, and there is a reimbursement on that ground, the party who paid it is entitled to have that money paid back to him. One of the cases cited is that of Platt’s Administrator, etc. v. Lear, Executor, etc., 3 Carr & Payne, 561. An attorney’s clerk, having been sent out to make a collection, accepted 168 pounds less than the amount of the claim; and rather than lose his employment,or for some other reason,he paid of his own money 100 pounds. But later the debtor paid the entire amount of his claim. The clerk being dead, his administrator brought suit and maintained his action to be paid back Ihe 100 pounds, the .court holding that the party who paid the money was entitled to have it back, where he debtor paid it to the original creditor.

But this, it seems to ug, is not based upon the same reason. If this money paid by the property owners had been for an amount more than sufficient to make the street improvement, as is sometimes the case when the council levies a greater assessment than turns out to be necessary, and part is to be paid back., nobody would doubt but that that which was to be paid back should be paid to the man who first paid it, and that in such case the administrator of Harkness would be entitled to have that money paid back to him. Such is the fair conclusion to be drawn from the case of Russell v. The Mayor of New York and others, 85 N. J. 330. If this is that kind of a case, if the same reasoning applies to this as applies to that, if it ought to be governed by the same rule, clearly this money ought to be paid to Harkness.

But is it to be governed by the same rule?

The language of the ordinance is that the money paid by the property owner or his predecessor in title shall be paid to the property owner. It cannot, of course, be said that the party holding this term for years was the predecessor in title to the heirs of Schiely; but it is difficult to distinguish between the rights of the Schielys to this money, as the facts are, and what their rights would have been if they had purchased from Harkness.

It is clear that the purpose of the city council, in passing the ordinance granting this franchise, was to secure the payment to property owners of money that had been paid. When these franchises are ganted, the city requires something from the railroad company to whom the franchise is granted, and for some reason that seems to be acquiesced in everywhere,it is required usually where the streets are about to be paved, to pay for paving that portion of the street bounded by a line one foot outside of each side of the street railway tracks. In this case the property owners whose property abutted on the street where the pavement had already been made, should be put on an equality with the property owners whose property abutted on that portion of the street not yet paved. I can think of no reason why the street railroad company, as a part of the consideration for its franchise, should pay to the property owners abutting upon the line of the railroad, rather than to the general public, except for some reason it is conceived that because of the construction of a street railroad there is a sense in which the abutting property owners are damaged; certainly pavements outside of the tracks will be worn faster than they otherwise would, and there are doubtless other reasons why the owners of abutting property ought to be compensated for letting the street railroad pass in front of their property. For some reason that is the universal custom, so far as I know; certainly the manner in which the street in front of the property is used after the expiration of the term granted by the lease was of no interest to the lessee other than it was of interest to the public in general, while it might be of great importance to the property owners.

If that is the reason why it was proper for the council to require money to be paid, it seems clear it should go to the property owners, and not to tie administrator of Harkness. Harkness paid nothing which was not legally and properly assessed and applied to the proper purpose. By reason of a subsequent arrangement between the city and the street railroad company, part of that money is to be paid back by the street railroad company to some one. If the property had been sold, the provision of the franchise ordinance is that it shall be paid to the property owner if the money was paid by the predecessor. The same reasoning that would require money in that case to be paid to the property owner would, as we think, require it to be paid to the property owners in this case. The court of common pleas so held, and we think there was no error in that holding.

This question has occurred to me, that the judgment was for the defendants, and one of the defendants was the administrator of the estate of Schiely. I do not see what interest the administrator has in this money. It is not going back to the estate of the deceased Schiely, but to the property owners.

Messrs. Henderson & Quail, for Plaintiffs,

Hon. J. M. Jones, for Defendants.

But it is said by counsel that there is no controversy about that matter, and it need not, therefore, be considered. The judgment of the lower court is affirmed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    IN RE ASSIGNMENT OF P. WILSON’S SONS & COMPANY.

      Failure to renew prior chattel mortgage does not invalidate the same as against junior mortgagee with notice.

    Under the rule of Day v. Munson, 14 Ohio St. 488, where one receives a chattel mortgage, with notice of a prior chattel mortgage, valid at the time, which, however, afterwards becomes invalid, as against the mortgagor’s assignee for benefit of creditors and general creditors, for failure of statutory renewal, yet sucü senior mortgagee would be entitled as against the junior mortgagee, to payment out of the property sold to satisfy such junior mortgage, before such junior mortgage could be paid, if there was enough to do this. But where both the senior - and junior mortgages have become invalid as against the assignee and creditors for failure of renewal, both mortgagees will only be entitled to the pro rata dividend from the insolvent estate like ail other creditors.
    Appeal from the Court of Common Pleas of Hamilton County.
    Edward Besuden held two chattel mortgages, aggregating $30,000, on the assigned plant. A subsequent chattel mortgage for $25,000, upon the sarne property, was executed to Henry Besuden, he having full knowledge of the prior mortgages. . These several mortgages were all duly filed with the county recorder, but were, all rendered void by failure to file them in jMillcreek township where one of the partners of P. Wilson’s Sons &• Company resided. The order of the common pleas was, that Henry Besuden be paid part of the fund arising from the sale of the plant, as a general creditor.

      Rogers & Wright, for plaintiff in error.

      Roellcer & Jellce, contra.
   Smith, J.

■ We are of the opinion that the judgment of the court of common pleas in this case should be affirmed, If the chattel mortgage of Henry Besuden, which was taken out after those of Edward Besuden, and with actual knowledge and notice thereof, had been a valid one against the assignee and creditors of Wilson’s Sons & Company, and he had therefore a valid lien on the property assigned, and was entitled to have it paid in whole or in part from the estate, then Edward Besuden, whose mortgages as against ITenry Besuden were good, under the adjudications of our court, would have been entitled to receive from , the amount payable to Henry Besuden a sum sufficient to pay his mortgage claim, if there was enough to do this, though as to the assignee and the creditors the mortgages of Edward Besuden were utterly invalid. But in this case, not only were the mortgages of Edward Besuden void as to the assignee and creditors, but the same was the case as to that of Henry Besuden, the provisions of the statutes as to their filing not having been complied with. Neither of them, therefore, took anything whatever from the estate by virtue of the mortgage or mortgages held by him, and the principle referred to has therefore no application whatever to this case. But each of them, as a general creditor, had a vested claim against the assignors, and as such, was entitled to a dividend on his claim. But it seems to us that neither the law, justice or equity would allow Edward Besuden, under the circumstances of this case, as- is claimed for him to take the dividend that would otherwise' be payable to Henry Besuden as a general creditor, on his claim against the estate.


author: Day, J.

text:
    (Third Circuit — Henry Co. O., Circuit Court
    October Term, 1896.)
    Before Day, Price and Rohn, JJ.
    AARON F. COREY, ADM’R. v. HANNAH HAYES.

      Subrogation — Widow securing debts of estate to administrator— Not mere volunteer—
    A widow, having a dower interest in the real' estate of her deceased husband, is sufficiently interested in the estate to entitle her, in connection with one or more of the heirs of such estate, to give the bond provided for by Sec. 6145 Rev. Stat. to obviate a sale of 221 such real estate to pay debts etc. by the administrator; and having in good faith given such bond, and as required by the conditions thereof,paid to tbe administrator the aggregate amount of the valid debts of the decedent and the charges of administration, is not to be regarded as a mere volunteer, but is entitled to be subrogated to the rights of the administrator, and fully reimbursed from a fund arising from the sale of such real estate in a proceeding, in partición by the heirs.

      Same — When subrogation tvill talce place—
    In such case, subrogation tabes place, by operation of law, whenever one person, not primarily liable and not a volunteer merely, becomes liable for and pays a debt, which is a first lien on such real estate, and on which others, as owners of the real estate by inheritance, are also bound.
    Error to tbe Court of Common Pleas of Henry county.
    The original proceeding was in partition. The prayer of the petition was for partition of tbe real estate of Thomas B. Hayes, deceased, between those entitled, and tbe assignment of dower to his widow, Hannah Hayes. The widow made answer, waiving dower interest in money. Such proceedings were had that the lands were sold, free of dower, for the sum of $7,030.00, and the question which is brought here arises on tbe distribution of the proceeds of the sale among the various persons entitled.
    The defendant, Hannah Hayes, having obtained leave, filed a supplemental answer, or crosá-petition, setting up, substantially, the following facts: That Thomas B. Hayes, deceased, left the real estate described in the petition, and very little personal property, and an indebtedness of more than ITOO.OOj^that the personal property was wholly insufficient to pay the debts, allowance to the widow, and charges of administration That A. F. Corey, as administrator, had commenced! an action in the probate court of Henry county, the purpose of which was to procure an order to sell the said realjestate to pay the de.bts, allowance to the widow for support, and charges of administering the estate; that in order to avoid the necessity of such sale, defendant, with Belle Hayes and two others, as sureties, under the provisions of section 6146, Revised Statutes, gave a bond to the said administrator, in the sum of $1,500.00, conditioned for the payment of such debts, allowance and charges; that said bondjwas approved, with the sureties, by the probate court, and the administrator withdrew his application for an order of sale, and none was made; that by the giving of said bond she became liable for the payment of said debts, charges, etc., and subsequently, in good faith, as required by the conditions of the said bond, she paid to said administrator, in satisfaction of all the valid claims and debts of said estate, the sum of $762.29, for which she produces and annexes to her answer, the receipt of the administrator. She further shows the lands have been sold, and the proceeds are in the court for distribution according to the rights and priorities to be determined, and her prayer is, that she be subrogated to the rights of the administrator in the fund arising from said sale, and that' she be reimbursed from said fund.
    A demurrer to this supplemental pleading was overruled, and there being no wish to'further plead, the court of common pleas entered judgment on the demurrer, decreeing subrogation, and ordering the said sum of $762.29 paid to her out of the proceeds of said sale. This action of the court is complained of, and a proceeding in error is instituted to procure á reversal.
   Day, J.

The only question presented is as to the propriety of the holding and judgment of the court on the demurrer, and is: Do the facts stated in the supplemental pleading entitle Mrs. Hayes to be considered in place of the administrator, and subrogated to his rights?

It seems quite obvious this question should be answered in the affirmative. Under the law, the debts of a decedent and all proper charges and allowances, in the absence of sufficient personal property for their payment, become a first lien on his real estate, prior to the rights of heirs or legatees, and whatever right or title descends to them, is encumbered by and subject to this lien. No substantial estate vests in the heir or legatee until the valid debts and all proper allowances and the charges of administration are provided for; and, if necessary, an executor or administrator may even divest the heir of title absolutely, by a sale for this purpose. A proceeding having for its purpose such a sale, was instituted in this case by the administrator when the widow, Mrs. Hayes, and one or more of the heirs, for the purpose of obviating the necessity of a sale, under the express provisions of the statue, intervened, and in effect, in law and equity, became sureties for the payment of such debts and charges, and as such surety the defendant in error paid them in full to the administrator. She was not a mere volunteer in the matter, as urged by counsel in argument, but was personally and directly interested in the real estate, and the heirs as well, and what she did was for her own and their benefit. It would seem that she ought to be saved from any loss on account of her good offices in their behalf, and if tne law will not afford relief, that now, if ever, is a fitting and proper occasion for the application of the equitable principle of subrogation. Subrogation, it is said, is a doctrine of equity’, an’d was invented for the express purpose of aiding and helping out where the law would be insufficient and unable to accomplish exact justice, and takes place by operation of law, whenever one person, not primarily liable and not a volunteer merely, becomes liable for and pays a debt which is a first lien on real estate,'and on which others, as heirs and owners of the real estate, by inheritance, are also bound. As we have seen, Mrs. Hayes was not a volunteer. She was interested in the property and in the heirs, and presumably for the good of all concerned, she became liable for the debts, for which the heirs, through the property, were also bound. She became so bound with the heirs, and in virtue of the condition of the bond, paid their debt out of her own means, to the administrator, who had the right to enforce the lien against the real estate. She is entitled to stand m the place of the administrator with respect to a lien against the real estate of the decedent, to the end that she be saved from loss and the debts fully discharged from the rightful source.

Cahill & Donovan, for Plaintiff.

Martin Knupf, for Defendant.

The administrator, the debts being otherwise unprovided for, under the provisions of section 6173, Revised Statutes, might come into a partition proceeding and have an order of the court requiring a sufficient amount of the proceeds of a sale in partition, paid to him to discharge the debts of the decedent; and it does not seem to us, tobe at all a violation of either the spirit or letter of that law, to allow a widow, who, being interested and liable, furnishes the administrator the wherewithal to pay, to come into court in a similar way and be reimbursed and made whole for her outlay.

We find there was no error, and the judgment is affirmed.