text:
    LAW OF DESCENT AND DISTRIBUTION.
    [Circuit Court of Wood County.]
    Robert Digby v. Willis J. Digby et al.
    Decided, April 23, 1903.

      Change in Character of Property — Prevents Operation of Section 4162 — Rights Under this Statute to be Determined, How — Oil Production Not Controlled by.

    1. A surviving husband or wife acquiring an estate from a deceased husband or wife does not take it as a trustee, but with an absolute right to dispose of it, and to change its character so as to prevent its descent being controlled by Section 4162.
    2. In construing Section 4162, the rights of the parties involved are to be determined by the legal title and their legal status, and not upon equitable principles.
    3. Money received by a widow for the sale of oil from land derived by her from her deceased husband, is not identical with the land, and upon distribution after her death is not to be controlled by the provisions of Section 4162.
    Parker, J. (orally) ; Haynes, J., and Hull, J., concur. '
    This action is brought to obtain a reversal of the judgment of the court of common pleas of this county. The action was brought in the court below by the defendant in error, Willis 'J. Digby, as administrator of the estate of Sarah A. Digby, deceased, asking the direction of the court in making distribution of certain property in his hands as such administrator, which property came to decedent, as is averred in the answer, in the way of moneys received from the sale of oil from lands owned by her husband John E. Digby, and which land came to her by devise from him.
   John E. Digby died in the year 1891 without issue, but leaving as his relict Sarah A. Digby. Sarah A. Digby died intestate in the year 1901, without issue, possessed of real estate which had been thus devised to her, and also, as is stated, of a large amount of personal property, or money derived from the sale of oil, crude petroleum extracted from these lands. A controversy having arisen between different sets of heirs as to how this fund arising from the sale of the oil should be distributed, the administrator has brought this action to obtain the advice and direction of the court upon it.

It is claimed by the heirs of Sarah A. Digby that the whole of this fund, together with the lands and other property coming from her husband, should go to them. ' It is claimed by the heirs of John E. Digby that at least one-half of this fund should go to them, under and by virtue of the provisions of Section 4162 of the Revised Statutes. The heirs of John E. Digby have filed an answer setting forth their relationships; setting forth that this fund was derived in the manner I have stated and praying for distribution to them of what they claim is their share. To that answer a general demurrer was filed and sustained, and judgment was entered against them, and therefore the heirs of John E. Digby prosecute error in this court to reverse that judgment. As I have stated, they claim under Section 4162, Revised Statutes, a part of the chapter of the Revised Statutes upon the subject of descent and distribution, which reads as follows:

“Where the relict of a deceased husband or wife shall die intestate and without issue, possessed of any real estate or personal property which came to such intestate from any former deceased husband or wife by deed or gift, devise or bequest, or under the provisions of section forty-one hundred and fifty-' nine, then such estate, real and personal, shall pass to and vest in the children of said deceased husband or wife, or the legal representatives of such children. If there are no children or their legal representatives living, then such estate, real or personal, shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife from which such personal or real estate came, or their personal representatives. ’ ’

It is claimed by tbe plaintiff in error that with respect to this property they come fully within the provisions of this statute. There has been no trouble about the division of the land; no trouble, I believe, about the distribution of certain personal property that the deceased, John E. Digby, had devised to his wife, and which remained in her possession as personal property at the 'time of her decease; but here it will be observed is property which if it can be said to have come from John E. Digby has changed its form and character. The land came to Sarah A. Digby by devise from her husband; she operated oil wells upon that land; whether this money represents royalty or product coming to her as an operator we are not advised, and we think it makes no difference; whether the wells were opened and in operation at the time of the decease of her husband or whether they were afterwards drilled by her or in pursuance of authority from her, in the view we take of the case, makes no difference. She acquired the real estate from her husband; from this land she extracted the oil and sold it and converted it into money, and of this fund she died possessed.

Now it is urged on the part of the plaintiff in error that this fund should be treated as land — a part of the land that came to her from her husband. Of course, it can not be said it is personal property that came to her from her husband by devise or bequest, because at the time of his death he was not possessed of any such property as personal property. If he may be said to have been possessed of it, it was a part of the land; it was then in the land; but it is said that the changing o'f its character by her from real estate into personal estate, should not change the course of its descent; that it should be regarded for the purposes of this case, and for the purpose of fixing the line or course of descent, as a part of the land which she derived from Oher husband; its character-as land should not be lost by its conversion into money; and we are cited to certain nisi prius decisions which seem to give some support to this view. Some of them are at least based upon the conclusion that the property there in question was not changed in character; that substantially the identical thing left by the husband or wife -as the case may have been, was preserved intact by the surviving husband or wife until the decease of the latter.

It will be observed that this statute does not provide that the increase or profits of either real or personal property thus coming to the relict shall be impressed with the same character or shall descend in the way there pointed out. We look upon the statute as providing that the very thing left by the deceased husband or wife to the relict must be preserved in form; that its character or substance shall not be changed, in order that the statute may operate upon it; and we regard the statute as analogous to Section 4158 of the Revised Statutes in that respect, as being properly subject to the same construction in cases of this character as has been put upon that section.

Section 4158 provides for the descent of ancestral property. Now it is well known that where one takes property as ancestral property and does not change the title, but dies seized of the same, in the same form and by the same title he inherited, it will descend under this section as ancestral property; but, should change in its form or title occur, it would not descend under this section, but under Section 4159 as non-ancestral property. One taking an ancestral estate under Section 4158 does not take it as a trustee; he does not take it so that he is bound to preserve its character as an ancestral estate in order that it may descend as provided for. the descent of ancestral property; but he takes it absolutely, with the full and unqualified right of disposition or jus disponendi; and it has been held that where two persons take their estates in this way from the same ancestor, and then make an exchange of their property, the property they thus acqure in exchange they dp not hold as ancestral property, but it becomes non-ancestral property. It is so held in the case of Brower v. Hunt, in 18 Ohio St., page 311, the syllabus of which reads as follows:

“The title to real estate which must have come to an intestate by devise, or deed of gift from an ancestor, to constitute ancestral property, is the title under which the intestate immediately held.
“Where specific tracts of land had been allotted to co-devisees in pursuance of directions in the will of their ancestor, and, afterward, one conveyed his tract to a co-devisee for a moneyed consideration as expressed in the deed, but in fact for a like conveyance, by the latter, of the tract he-had received in the partition — Held: That the title of neither was derived directly by devise from the ancestor, and that, for the purposes of descent, each was to be regarded as a purchaser.”

They might, for the very purpose of changing the course of descent, change it from ancestral to non-ancestral property and they would not be guilty of any legal wrong in so doing. A person receiving ancestral property in that way, would have a perfect right to do that, because he does not receive it. as a trustee. He may sell it or convey it away, or so manipulate his affairs as to convey it, and have it reconveyed to himself, henceforth holding it as non-ancestral property. Now it will be observed that these sections both appear in this chapter and that they read very much alike. Section 4158 reads:

“When a person dies intestate', having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise or deed of gift from an ancestor, such estate shall descend and pass,” etc.

Section 4162 reads:

“When the relict of the deceased husband or wife shall die intestate and without issue, possessed of any real estate or personal property which came to such intestate from any former deceased husband or wife by deed of gift, devise or bequest, or under the provision of section forty-one hundred and fifty-nine, then such estate, real and personal, shall pass to and vest, ’ ’ etc.

We think what I have stated with respect to Section 4158 is true of Section 4162, that the person acquiring the estate from a deceased husband or wife, does not take it impressed with a trust — does not take it as a trustee, but takes it with an absolute right to dispose of it, and a right to change the character of the property so as to prevent the operation of this statute upon it. That he may rightfully change it so that it may not be said that the title of which the person died seized was derived immediately from a deceased husband or wife, and so that it may not be said that the property of which the person died possessed was the personal property or real estate which came from the deceased husband or wife, as the case may be.

Now that being our view of the statute, and it being clear that this fund is not the identical property, whether real estate ■or personal property, coming from John E. Digby, but is issue therefrom, or something derived from changing the character ■of that property, this statute does not operate upon the fund.

In line with Brower v. Hunt, supra, and the views I have here expressed with respect to Section 4158, is the ease of Patterson v. Lampson, 45 Ohio St., page 77. There was a case in which a father purchased a certain tract of land for his daughter, a house and lot, quite valuable; he furnished all the funds and made a gift of that property to his daughter, but instead of having the property conveyed to himself and then conveying it to his daughter as a gift so she would have received it under this statute as a deed of gift from an ancestor, he caused the person from whom he purchased it to convey it directly to her; she died thereafter intestate and without issue, leaving her husband surviving her. It was urged that the land should be treated as ancestral property, as property which came from her father by deed of gift; that equity would look through the form and get at the substance of the transaction; and the Circuit Court of the Cleveland Circuit so held, Judge Haynes of this bench delivering the opinion of the circuit court; but the Supreme Court reversed that decision and held as follows:

“1. Under the statutes of descent and distribution, the course of descent of real estate is to be controlled by the legal title.
“2. Where the intestate’s title to real estate is free from -controversy, in determining its course of descent and whether it is ancestral or non-ancestral property, the statutes of descent and distribution are not to be construed upon equitable principles, but by the rules of law.
“3. In determining, in such case, whether an instrument for the conveyance of land is a deed of gift or a deed of purchase, its recitals of the payment and receipt of the consideration are material; and a recital in such deed that the conveyance by the named grantor to the grantee is made in consideration of a specified sum of money received by such grantor from the grantee, so far concerns the operation and effect of the deed as that it is not competent to show, by parol proof, that such instrument is, in fact, a deed of gift from a person not named in it, and that the named consideration was in fact paid by him.

Boverstock & Bonehay, for plaintiff.

Baldwin & Harrington, for defendants.

“4. A father desiring to make his daughter a wedding gift, bargained for a tract of land, paid the agreed purchase price in money, and caused the vendor to convey it to the daughter just prior to her marriage. She died thereafter intestate. * * * Held: The title to the land did not come to her ‘by deed of gift from an ancestor,’ within the meaning of Section 4158, Revised Statutes, * * * which provides that if the estate came not by devise, descent or deed of gift, it shall, if there be no children or their legal representatives, descend and pass to the husband or wife relict of the intestate. ’ ’

That has been followed by the Supreme Court in a number of cases since then, one decided last winter.

We think and hold that what is true of Section 4158 is true as well of Section 4162, viz., that such questions thereunder are not considered or determined upon equitable principles; that the legal title and legal status determine the rights of the parties when it comes to the matter of descent of property, and so holding, we affirm the judgment of the court of common pleas.


source: Caselaw Access Project

license: Public Domain

text:
    EJECTION OF PASSENGER FROM TRAIN.
    [Circuit Court of Huron County.]
    New York, Chicago & St. Louis Ry. Co. v. W. L. Willing.
    Decided, November Term, 1902.

      Railways — Liability of — For Rejection of Passenger Between ¿Stations in Night Time —Passenger Injured in a Battle Guard.

    1. Recovery may be had for an injury received by one who was lawfully on a railway train, and was unlawfully ejected therefrom between stations in the night time, and was injured by falling into a cattle guard while making his way to the nearest highway crossing.
    2. But where one takes passage upon a train which he knews does not stop at his -destination, it is lawful for the company to eject him without unreasonable violence, at any reasonably safe place between stations, upon his refusing to pay fare to the next station at which the train stops.
    Hull, J., Haynes, J., and Parker, J.; concur.
    Heard on error.
   The defendant in error, plaintiff below, brought this action in this case to recover damages for being wrongfully and unlawfully put off thé train of the railroad company in the month of May, 1900, at a point betwéen the town of Bellevue and the village of Kimball on the line of the railroad company. The plaintiff recovered a verdict for $810. The motion for a new trial was overruled and judgment entered thereon, and it is to reverse this judgment that proceedings were commenced in this court.

The plaintiff claims that he was at the village of Arcadia, Hancock county, on the line of the railroad company, on the night of May 5, 1900, and he desired to go to Kimball in Erie county. He wished to take the train at Arcadia late at night (about eleven o’clock), and it is claimed that he asked the ticket agent at Arcadia if the train stopped at Kimball, and the ticket agent told him that it did. Willing claimed he asked the agent how much the fare was, and the agent replied that he did not know, as he was a new man, but that the train was a local train, stopping at all stations, and. that it stopped at Kimball, and that he might pay his fare on the train as well as to bny a ticket; and that he got on the train after receiving this information. He claims that he paid the conductor on the train his fare between Arcadia and Bellevue, and that at the time he paid him he was told by this conductor that he would get off at Bellevue and that he could not take his fare to Kimball, but he could pay it to the conductor that would get on the train at Bellevue, at the end of the division. He claimed he proceeded on his way to Bellevue, accompanied by a friend by the name of Howard, who got off at Bellevue, and Willing, the plaintiff below, stayed in the car and went out on the train in the direction of Kimball.

After he had gone a short distance from Bellevue he was informed by the brakeman and conductor that the train did not stop at Kimball. Willing claims he told the conductor that he had been informed by the ticket agent at Arcadia and also by the conductor in charge of the train from Arcadia to Bellevue that the train did stop at Kimball. The conductor told him the train would not stop until they reached Lorain, and that he would either have to pay his fare to Lorain or get off — he could take his choice. Willing said he would rather get off, and thereuppn the conductor pulled the rope, as he says, in an ■“angry manner,” and the brakeman opened the door and he was ordered out of. the car and off the train at a point perhaps three miles east of Bellevue, just at the edge of the yards where the sign “yard limits” stands, and about half way between Bellevue and Kimball, the latter place being about seven miles east of Bellevue. No physical violence was used in putting him off the train, and after he got off he concluded to go on to Kimball to the house where he intended to go, instead of going back to Bellevue, the distance being about the same.

After starting on his way, a short distance from where he was put off, there was a highway crossing the railroad track, and, without seeing it, Willing claims he stepped on to and walked upon a cattle guard, and his foot turned and his ankle was sprained, and he claims he was quite severely injured.

On the other hand, the railroad company denied that any such information as this was given to Willing at Arcadia when he purchased his ticket, and the conductor on the train from Arcadia to Bellevue denied that he made the statements testified to by Willing, and his testimony as to what occurred between Bellevue and the place where he was put off was denied in some particulars.

A large number of exceptions were taken to the introduction and exclusion of evidence. While there was some testimony admitted perhaps that might have been excluded, we find, on examination of the whole record, no error in this behalf to the substantial prejudice of the plaintiff in error.

It was contended by plaintiff in error that Willing’s injuries which he received, if he received any on account of stepping on the cattle guard, could not and should not be permitted to sustain his claim for damages in any particular; that such injuries were not the natural or probable result of his being put off the train in this manner. We think, however, if he was lawfully on the train and unlawfully put off at a point on the railroad track where there was no station and no stopping place, and from which it would be necessary for him to go either to his destination or back to Bellevue, we think if those were the facts, and if without any negligence on his part he was injured in walking upon the cattle guard, as he claims he was, that this would be an element that might be included in his claim. If the company wrongfully and unlawfully put him off the train at such a point in the night, they could not be heard to say that he ought not to recover for such injuries as those which resulted from his being so put off the train.

Testimony was introduced as to his injuries — as to the result of this sprained ankle and his own conduct afterwards— his limping and other indications of lameness and pain.' We think that admitting testimony such as this, while rather close to the line, was not error under all the circumstances.

Witnesses were permitted, however, to state what he said on different occasions, some time after his injury — that his ankle hurt him, and similar expressions. This testimony, we think, ought not to have been admitted. Express declarations like these a long time after the injury, that his ankle pained him, or hurt him, ought to have been excluded.

A certain piece of evidence that was introduced and which was objected to by the railroad company, was an almanac showing the time the moon set on the night in question. It has always been the rule, as far as we know, to admit almanacs in evidence, and, upon examination of Jones on Evidence, we find that there is authority for it. In Jones on Evidence, Section 594, where there is a brief discussion of almanacs along with scientific and medical works, we find this language:

‘ ‘ On the same principle almanacs have been admitted to prove at what hour the sun or moon rose at a given time, although since this is a fact of which the court will take judicial notice, the evidence may be unnecessary, or it may be deemed as used for the purpose of refreshing the memory of the court and jury.”

We think it was not error to admit the almanac.'

Quite a large number of requests to charge the jury were made by the plaintiff and by the defendant, and many of them were given. Among the requests that were given on behalf of the plaintiff below was request No. 6, which reads as follows:

“If you find from the evidence that the plaintiff, at the time this train left Bellevue, knew that this train did not stop at Kimball, and if you find that he refused to pay his fare from Bellevue to Lorain, the conductor would have a right to eject the plaintiff from the train, but he would have no right to eject the plaintiff late at night, if the night was dark, in the country, far from a railroad station, if by so doing such passenger so ejected would thereby and as a natural and probable consequence be exposed to danger.”

To the giving of this instruction exception was taken by the railroad company, and error is claimed from it here. It was claimed by the railroad company on the trial of the case, that the plaintiff’s claims in regard to his information were false; that he knew that this train did not stop at Kimball; that it was untrue that he had been informed by the ticket agent at Arcadia, or by the conductor between Arcadia and Bellevue that it did stop; that he got on the train at Arcadia knowing that the train would not stop after it passed Bellevue until it reached Lorain, and that he got on the train for the purpose of riding through to Kimball and getting there if possible on this train. So that the chief issue in the case between the parties was whether the plaintiff: below had been misled in getting on this train; had been misinformed by the agent of the railroad company as to its stopping at Kimball. It was conceded by all parties that if he knew this train would not stop at Kimball, knew it was a fast train from Bellevue east, that he had no right to get on to it, and that the railroad company would have the right to eject him. But it was claimed that, although they had the right to eject him under those circumstances, that they did not have the right to eject him in the manner and at the time and place that they did, to-wit, at a point between Bellevue and Kimball, where there was no depot nor stopping place and from which he would have to walk some distance to get off the right of way upon a public highway, and this instruction was drawn to meet the plaintiff’s view of the ease.

The only danger that the plaintiff below encountered when he was put off the train was the cattle guard; it was the only danger from which he suffered any physical injury. That was the only danger and could be the only danger that, the jury would have had in mind and to which their attention had been called. There were no dangers surrounding him when he was put off,' or surrounding the place any more than are usual at and about a railroad track. It was an ordinary railroad right of way, with tracks and ties, and the company were required to put cattle-guards at highways wherever they crossed their right of way, and it might be presumed that cattle-guards were somewhere near by. The night was perhaps dark; the moon had just set or was about to set. It was not, however, a stormy night, and probably, according to the testimony, was a clear night; it was early in May and the weather was not inclement. There were no unusual perils near or about him when he was put off; no precipice or bridges or anything of that character.

It seems to us that this instruction can not be sustained by the authorities; it goes too far. Under it, it is difficult to see how the jury could have avoided returning a verdict in favor of the plaintiff, when they were instructed that although they could find that the plaintiff knew that he had no right to be upon this train; that it did not stop at Kimball; that he refused to pay his fare from Bellevue to Lorain; and although the court told the jury that the conductor would have the right to eject him, but that if he did, he would have no right to eject him late at night, if the night was dark, in the country, far from a railroad station, if by so doing, such passenger so ejected would thereby and as a natural and probable consequence be exposed to danger.

Putting all these things together, it amounted practically to an instruction to the jury that if he was put off, under the circumstances which were substantially admitted surrounded him at the time he was put off, although he knew he had no right to be on the train, and in fact had no right to be there, yet he would be entitled to recover.

We think the instruction is faulty and defective in this, that it does not limit the danger to any unusual or serious danger, or any danger of an extraordinary character, but simply instructs the jury that if he was thereby, as a natural and probable consequence, exposed to danger, he would be entitled to recover.

There are two decisions of the Supreme Court of the state which are in point on this question. In Railway Co. v. Skillman, 39 Ohio St., 444, the Supreme Court say in the syllabus:

“A person entering the cars without having purchased a ticket, and persistently refusing to pay the full and reasonable fare, upon demand by the conductor, and after reasonable time in which to determine whether he will or will not pay the same, may lawfully be removed from the train.
“The expulsion of such person may be at a place other than a railroad depot or usual stopping place, provided care is taken not to expose him to serious injury or danger.
“Such person acquires no right to remain on the train, by offering to pay the usual fare after the train had been stopped for the purpose of ejecting him.”

This was a ease where a man had got on the train without paying his fare; the regular fare, if he bought a ticket, would have been twenty cents, but under the rules of the company, if he paid his fare on the train, it would be twenty-five cents. He refused to pay the extra five cents until the train was nearly stopped, then he offered to pay the twenty-five cents, but he was put off the train, and the Supreme Court held that the railroad company had a right to put1 him off, even if he did offer to pay the extra fare after he had once refused, and the train had been stopped, or practically so, on account of his refusal. The court say, on page 453 of the opinion:

“The plaintiff also excepted to the charge of the court of common pleas, that when payment of the fare demanded was refused, the defendant had the right to eject him from its train, and also to the refusal of the court to charge, as requested by the plaintiff, that ‘the defendant railroad company had no right to expel the plaintiff from its ears, except at a railroad depot or stopping place.’ Of the defendant’s right to eject the plaintiff from its ear, for a persistent refusal to pay his fare from the station at which he entered the car to the next station, there can’be no serious question, provided he was not removed with unreasonable violence, or at a place where he would be exposed to serious injury or danger. When he refused to pay the usual fare, he had no right to remain on the train, or claim the right of a passenger, but might rightfully be treated as a trespasser, and be at once expelled. To hold that this could only be done at a railroad depot, or stopping place, would deprive a railroad company of its chief safeguard against that kind of fraud or imposition, and we know of no principle of law or public policy which requires that every one who prefers not to pay his fare shall be carried without charge from the station at which he gets on the train to the next station. We see no error in the charge of the court of common pleas that when, for such refusal to pay, the train was stopped for the purpose of ejecting the plaintiff, his right to transportation was not restored by afterward offering to pay the fare so demanded, especially, when taken in connection with the instruction also given to the jury, that the plaintiff was entitled to a reasonable time, after the demand was made, to consider whether he would pay the sum demanded.”

It will be noticed that the court use the words, “provided care is taken not to expose him to serious injury or danger.” It is not left simply with the words, “provided he is not exposed to any danger.” But he must be exposed to something more serious — some danger more serious — than simply being put off the train onto the railroad track. If this were not the rule, it might be almost impossible for railroad companies to run fast trains without stopping them at almost every station; and every trespasser who got on such a train in the night or in the evening without a ticket and without fare and refused to pay his fare, could insist on being carried to the next station, or that he should not be put off until some place convenient for him was found. This would very much interfere with the running of such trains and practically prevent it.

Another case is found in Railway Co. v. Valleley, 32 Ohio St., 345. The court say in the syllabus:

“It is not only the right of a conductor to expel from a train a drunken, unruly, boisterous passenger, but when such a person endangers, by his acts, the lives of people, it is the duty of such conductor to remove such passenger in order to protect others from violence and danger.
“But this right must be reasonably exercised, and not so as to inflict wanton or unnecessary injury upon the offending passenger, nor so as to needlessly place him in circumstances of unusual peril.
“If, having exercised reasonable prudence, considering the time, place and circumstances, as also the condition of the drunken man himself, the conductor expels such passenger, who is afterward run over and killed by another train not in fault, the expulsion itself is not such a proximate cause of the death as will make the company liable.”

It will be seen that the Supreme Court, in the second paragraph of the syllabus, use the expression, “nor so as to needlessly place him in circumstances of unusual peril.” In this case the man was intoxicated, and he was put off the train at a place not a station, and was run over and killed by another train.

We understand the law to be that if a man is on a train unlawfully, as a trespasser, that the train may be stopped and the man put off at a reasonably safe place; that the railroad company is not required to carry him to the next station or to the next highway or the next place that would be convenient for him to get off. He has no claims upon the company; he is not paying for his transportation; he is a trespasser upon the train, and they have a right to relieve themselves of him as speedily as possible, but .without exposing him to any unusual or extraordinary danger. The mere fact of putting him off the train on the railroad track or within the right of way in the night, if he is unlawfully on the train, is not exposing him to unusual or extraordinary peril.

C. P. & L. W. Wickham and J. 3. Clark, for plaintiff in error.

Jesse Yickery, for defendant in error.

In our view of the case, if Willing knew that this train did not stop at Kimball and remained upon it at Bellevue and refused to pay his fare, then the conductor had the right to put him off where he did, and there would be no liability on the part of the railroad company, if those were the facts.

Counsel, in drawing this request, must have overlooked the language of the Supreme Court to which attention has been called, and, in our judgment, it was error for the court of common pleas to give the instruction to the jury. For this reason the judgment of the common pleas must be reversed and the verdict set aside.


text:
    FEES FOR PROBATE JUDGES.
    [Circuit Court of Lucas County.]
    Millard v. Henry Conradi et al, County Commissioners.
    Decided, June 11, 1904.

      Compensation for Public Officers — Not Specifically Provided by Statute — Can Not be Collected from the County — Fees for Probate Judges — For Commitments to the Boys’ Industrial School — To the Girls’ Industrial Home — In the Matter of the Examination of the County Treasury — And for Inquests of Lunacy — The Buie of Custom Without Weight — Lunacy Cases not “Causes.”

    1. Compensation can not be exacted from the county by a public officer for services performed for the public, unless such compensation is specifically provided for by statute.

      2. There being no specific provision provided by statute for compensation to a probate judge for services rendered by him in connection with examinations made of the county treasury under his direction, fees for such services can not be legally allowed.
    3. In the matter of inquests of lunacy, a probate judge is entitled to-only such fees as are provided for in Section 719. For such services the provisions of Section 547 are not applicable.
    4. Where a boy or girl is prosecuted and convicted of an offense against the laws of the state, and as a consequence is committed to the Industrial School or the Industrial Home, the probate judge is not entitled to fees in connection therewith, to be paid by the-county; but where they are committed under the compulsory education law, or in cases where no prosecution and conviction is required, the compensation of the probate judge is the same as that fixed for clerks of courts of common pleas in Tike cases.
    Parker, J.; I-Iull, J., and Haynes, J., concur.
    Error is prosecuted here to the judgment of the court of common pleas. The plaintiff in error was judge of the probate court in and for Lucas county. He presented to the-board of county commissioners accounts and claims for certain fees — in other words, certain fee bills were presented — which he claims should have been allowed by the commissioners and paid to him by the county. The bills were disallowed, and were taken under the statute to the court of common pleas. There he filed his petition. When the case came on to be heard, by agreement of the parties, no other pleading was filed, the facts stated in the petition being conceded, except the conclusion that the amounts claimed were due from the county to Millard. That was the real question in controversy. In other words, it is contended on behalf of the county that there was no liability of the county for the fees and charges under the fee bill as presented. The bill of exceptions consists of this concession as to the facts and these fee bills.
   There are four bills for services, somewhat different in character as to each bill, and the plaintiff in error claims that they come under different statutes, and should be allowed under different statutes. One is for services in the matter of Henry Fisher, for $6.79, who, it appears, was sent to the Boys’ Industrial School at Lancaster; another is in the matter of Lena Stern, who was sent to the Girls’ Industrial Home, for $6.99 j another is in the matter of James H. McGuire and Louis E. Krieger, for $20.90, who were appointed to examine the treasury in pursuance of the statutes providing for such examination ; and the last is in the matter of' the state of Ohio v. Louis Shinaver, where an inquest of lunacy was held, for $8.23. So that in these particular bills it will be observed the amounts in controversy are not large, though it is said the question is of great public interest, because there are a great many other bills of the same sort pending in this eounty; amounting in the aggregate to a large sum, and that the question is one of interest throughout the state, because like bills are presented in other counties. It is stated in argument and not disputed, and we have no doubt it is true, that in most eases of the same character such bills have been allowed by the county commissioners throughout the state, and that such bills have been allowed from county funds,, almost from time immemorial, or as long, perhaps, as such services have been required. So that it may well be said that the fact that these bills are challenged is no reflection upon the officers presenting the bills, and if the court shall find they are not entitled to payment of any of them, that would not in any way impeach the integrity of the officers. It is urged, however, that we shall give great weight and consideration to the fact that these bills have been allowed in this way for so long a time, and generally without question, but we are of opinion that this argument is not entitled to a great deal of weight. Such practices grow up, as we know, very often, when there is no support to be found for them in the provisions of the law.

I probably shall not take these different bills up in the order that I have mentioned them hereinbefore. I shall begin by discussing the bill for the appointment of the examiners of the county treasury. That appointment was made under Section 1129, Revised Statutes. The section is quite lengthy; I shall not read all of it. It provides for an examination of the books, vouchers, accounts, moneys, bonds, securities and other property in the treasury of the county by the commissioners as often as every six months each year, and provides also that the probate judge shall, once every six months, or oftener, if he deem it necessary, or whenever he is requested so to do in writing by one or more of tbe bondsmen of the treasurer, appoint two examiners of the treasury, and that upon being appointed they shall proceed forthwith to examine. It defines their duties very fully, and the sort of report that they shall make; and it contains this provision:

“The said accountants shall certify the exact amount of money in the treasury, together with the amount belonging to each particular fund, also all property, bonds, securities, vouchers, assets and effects as aforesaid in writing, in triplicate, one copy of which certificate shall be recorded in the books of the treasury, and filed by the treasurer in his office, and one copy shall be recorded and filed by the auditor of the county; one copy thereof shall be duly reported to the probate court and be entered of record therein, a copy of which shall be furnished by the probate judge for publication, one week in two newspapers of opposite politics, of general circulation in the county in which such examination is made, and said accountants so appointed and performing the duties therein required, shall be paid $5 per day for the time necessary to the performance of the same, out of the county treasury, on a warrant drawn by the county auditor and approved by the certificate of said court. ’ ’

That fee of $5 per day to the accountants is the only fee provided for in this section of the statute or in the statutes providing for this examination. But it will be observed that the statute requires considerable services of the probate judge; the matter of selecting and appointing these officers, which involves a certificate of their appointment, which they present to the treasurer as their authority; the preparing by him of a copy of their report which is to be furnished for publication, and recording of such report; and perhaps some other services which I have not mentioned. But there is no fee or compensation specifically provided for such services.

The sections of the statutes which provide in a general way for the fees of the probate judge are Section 546, which contains what is called the “fee bill,” which is very lengthy, and which specifies a great many things on account of which fees may be charged, and the fees that may be charged therefor, ■and Section 547, which provides that “for any other services not herein provided for, the same fee shall be allowed as for similar services in the court of common pleas of the same county.” Running through the statutes, we find in ditch eases and in various other proceedings, special provisions for a fee or other compensation in those particular cases, but the compensation provided for the bulk of the services to be performed by him is that provided for by Sections 546 and 547. In Section 546 we find no provision for a fee or compensation that would be appropriate to the services provided for by Section 1129. It is claimed, however, that he should receive compensation to be based upon that provided for clerks of the court of common pleas in this county, under the provisions of Section 547. It is to be observed that the compensation here claimed is against the county. Plaintiff in error is claiming compensation from the county, and in view of that I call attention to a number of cases decided by our Supreme Court and a few by the circuit courts, which, it seems to us, are entirely inconsistent with the idea that compensation can be exacted from the county by an officer for services performed for the public, unless such compensation is specifically provided for by statute. Some of the cases that I shall cite do not come to this exact proposition, but they all have some bearing on it.

In Debolt v. Cincinnati Township Trustees, 7 O. S., 237, it is said: “An officer whose fees are regulated by statute can charge fees for those services only to which compensation is by law fixed.” In the case of Anderson v. Jefferson County Commissioners, 25 O. S., 13, it is held that “where a service for the benefit of the public is required by law, and no provision for its payment is made, it must be regarded as gratuitous, and no claim for compensation can be enforced.” This rule is more fully stated in a later case of Strawn v. Commissioners, 47 O. S., 404, 408. That was a claim by the county surveyor for making a-record of a private survey. The court concludes that he is not required to make such records, and then says:

“However, were this not so, yet it does not follow that because a private survey is required to be recorded by a public officer the public is compelled to pay the fees for recording it. In the case before us no statutory provision has been shown directly authorizing payment out of the public funds of the fees of a county surveyor for recording a private survey; that, however, may not be necessary, for doubtless such an authority might be gathered by construction from the body of a statute in the absence of express words; but in such case the implication of a duty on the part of the public to pay must clearly appear. The fact that a duty is imposed upon 'a public officer will not be enough to charge the public with an obligation to pay for its performance, for the Legislature may deem the duties imposed to be fully compensated by the privileges and other emoluments belonging to the office, or by fees permitted to be charged and collected for services connected with such duty or services, and hence provides no direct compensation therefor, to be paid out of the public treasury.”

Following these cases in the order of their dates, when they were decided, I call attention now to the ease of Butler Co. v. Wellever, Clerk, in 12 C. C., 440, the closing paragraph:

“It is not a pleasant thing to disallow claims of an officer of the court for services actually rendered by him, many of which are necessary and valuable, and for some of which he can receive no compensation from any other source. But with an understanding of the law, that they can not be paid from the county treasury unless such payment is explicitly provided for, our duty is plain, and must be performed. ’ ’

The next is the case of Jones, Auditor, v. Commissioners, which went up from this county, 57 O. S., 189. The opinion is by Judge Spear. After citing these earlier cases decided by the Supreme Court, he says, page 209:

“The conclusion inevitably follows that the auditor’s services in making the report for the commissioners must be deemed, if not gratuitous, at least satisfied by the salary attached to his office, and that he is not entitled to extra compensation for such services, payable out of the county treasury. And this conclusion follows, whether the sections quoted impose the duty on him to make such report, or devolve it primarily upon the commissioners, the duty of the auditor being only a general one to aid them, a question which it is not necessary to decide to dispose of the case.”

"We find no specific compensation provided for these services, and we hold that as to this bill the court of common pleas did not err.

We next come to the question presented by the bill for holding an inquest of lunacy. For these services compensation is claimed under Section 719, which provides the costs and fees in inquests of lunacy:

“The taxable costs and expenses to be paid under the provisions of this chapter shall be as follows: To the probate judge • with whom the affidavit is filed, the sum of $2 for holding an inquest; for each warrant, certificate or subpoena he necessarily issues, the same fees as are allowed by law to the clerk of the court of common pleas for similar services; and the amount of postage on all communications to and from the superintendent which the judge is required to pay.”

And there are provisions as to the compensation of other officers.

It is conceded that the probate judge is entitled to the compensation specifically provided by this section of the statute in such cases, but it is contended on behalf of the county that in some of the charges in his fee bill it is apparent, that not confining himself to the fees provided by this section of the statute, the probate judge has undertaken to charge under Section 547, Revised Statutes, for other services which he has been required to perform, basing his claim upon the provision of the section that he is to have such compensation as the clerk of the court of common pleas shall have in like eases where a specific provision for his compensation is not made in the statute. In addition to these charges he has also made some charges under Section 546, especially the charge for making up a complete record at 8 cents per 100 words, $1.60. We are of the opinion that Section 547, which allows compensation such as is allowed the clerk of the court of common pleas, has no relation to services of this, character performed by the probate judge, which are to be paid for by the public; that it has relation to causes and proceedings between private parties, and that that is what is provided for by Section 546, and Section 547 is intended to cover the cases or the items that may have been omitted from Section 546. We therefore hold that under Section 719 the probate judge can have no compensation other than that actually provided for in Section 719. That does not provide compensation for making np a record. When we turn to Section 546, which does provide for compensation for services of that character, and undertake to apply it to lunacy cases, we meet with another difficulty, for it reads,, “making up complete records in cause, 8 cents for each 100 words, but no complete record shall be made in any case, except when the title of real estate is drawn in question the court may order the same, or either party may require it, at his own cost.” W'e have had occasion to pass upon the meaning of the word “cause” when found in fee bills. Our decision on the subject will be found in the case of Clark v. Commissioners, 14 C. C., 349. The case went to the Supreme Court (Clark v. Lucas County Commissioners, 58 O. S., 107). The closing paragraph in the decision in the case, which was by Judge Burket, reads as follows, page 112:

“The claim made by counsel for plaintiff in error to the effect that each cause means each name, whether plaintiff or defendant, is not tenable. A name is not a cause, neither is a plaintiff or defendant a cause. ’ ’

There the clerk of the court was asking for compensation for indexing, and he made his cross-indexes with reference to each name, and claimed that in each instance where he made that index it was an independent cause. The court held that that was not correct.

‘ ‘ The word cause is used in the sense of an action, or lawsuit. There may be many parties to an action, but all combined constitute but one action, one lawsuit, one cause.”

So it may be doubted whether the proceedings in lunacy cases are in the purview of the statute providing for the record of causes at all. But even if a cause, the record is not to be made where the title to real estate is not drawn in question, unless at the request of a party who may require it, at his own cost.

It is contended on the part of the plaintiff in error that that provision is exceedingly obscure; that it is impossible to get at the meaning of it, and the conclusion is that it should be ignored, or the statute should be regarded as providing for a complete record in all cases. But we had occasion to consider that provision, and we found it meant as I have expressed it; that the complete record was not to be made unless title to real estate was drawn in question, and where the title to real estate was not drawn in question, the party who desired it and requested it should pay for it. Our position on that subject will be found in Millard v. Lucas County Commissioners, 13 C. C., 518, affirming a decision of Judge Pugsley of the court of common pleas in 4 N. P., 53, where the matter is more fully stated by the common pleas court. We affirmed his decision and approved his reasoning on the subject.

Our conclusion, therefore, is, upon the matter of the inquest of lunacy, that certain charges made are correct — those that come clearly within the purview of Section 719 — and the others-are not correct-; and such examination as we have made of this question convinces us that the fee bill made up tentatively by the counsel for the county, on page 9 of his brief, sets forth all that may be legitimately charged under the section: First, $2 for holding inquest; second, for each warrant, certificate or subpoena necessarily issued, the same fees as are allowed by law for the clerk of the common pleas court for similar services; and third, the amount of postage on all communications to and from the superintendent which the judge is required to pay. I believe these bills were disallowed in toto; we allow part, and the judgment will be modified jn that respect as to that matter.

We come now to the question of fees charged in cases coming under the statute with reference to the Boys’ Industrial School. That statute runs from Section 752, Revised Statutes, to 764b, and then there are other provisions on the subject found in the truancy law, especially in Sections 4022-4 and 4022-8.

Section 6470, Revised Statutes, provides:

“The judges for said probate courts shall be paid for their services in criminal cases such sums as the commissioners of said counties may allow, which sums shall be paid out of the county treasury of said counties, respectively, and said probate judges shall not receive any compensation by way of fees in any criminal business -of which they have jurisdiction; but all costs and all fines by said probate court -imposed, including the fees of the judge, shall be collected in the same manner as fines and costs are now collected by the court of common pleas, and the same by said probate judges shall be paid into the county treasury. ’ ’

It is urged here on behalf of the county that the allowance of the county commissioners to the probate judge for services in criminal business covers his services performed with reference to the Boys’ Industrial School and with respect to the Girls’ Industrial Home; that these services are services in criminal matters. On the other hand, it is contended on behalf of the probate judge, the plaintiff in error, that these are not criminal cases; and attention is called to the fact that under the statutes with respect to the Girls’ Industrial Home, beginning with Section 768, there is no provision for the conviction of a girl of n criminal offense before sending her to the Industrial Home; and also to the fact that under the statute with respect to compulsory education, providing for the sending of children to the Industrial School or the Industrial Home, whether boys or girls, there is no provision for their conviction of a criminal offense before so sending them; that it is not required that the child shall be convicted of a crime; and it is urged that it would be wrong to undertake to brand a child as a criminal, by treating these proceedings as criminal proceedings, in view of the absence of any specific provision of the statute that they shall be so regarded. It is urged by the plaintiff in error that the character of these proceedings is fixed by the statutes; that a proceeding against an incorrigible child or one who is a truant from school, or against a girl who is to be sent to the Industrial Home, is not a criminal proceeding; that therefore none of the proceedings should be regarded as criminal proceedings, and none of the provisions as criminal provisions. On the other hand, counsel for the county points out that under Section 753 a conviction of an offense is required as a condition precedent to sending a boy to the Boys’ Industrial School, and he urges that that fixes the .character of all proceedings under the statute as criminal proceedings.

We think that both counsel are partly right and partly wrong; that the proceedings are not the same in all cases, and have not the same character in all cases where the children are sent to these institutions by the probate judge; that if an immoral youth is convicted of an offense against the laws of the state under and in pursuance of Section 753, and for that reason is sent to the Boys’ Industrial School, that is a criminal proceeding; that there must be a criminal prosecution, and it must be in the regular and ordinary methods of a criminal prosecution. There must be the complaint lodged against him provided by law; he is entitled to a trial by jury; and that the prosecutor must proceed in all respects to his conviction as though he were prosecuted for the purpose of imposing the penalty of a fine or imprisonment provided by statute, instead of the purpose of sending the boy to the Industrial School. On the other hand, where a proceeding is under Section 4022, because of the boy’s or girl’s truancy, where no conviction of an offense is required, or no trial by jury is to be had, it does not resemble a criminal prosecution, and in such a ease, it not being a criminal prosecution, the compensation of the judge is not fixed by Section 6470, but he may have his fees. He may have his fees in eases of boys sent to the Boys’ Industrial School, for truancy, and girls sent to the Girls’ Industrial Home for that or any other cause where conviction of offense is not required, andi his fees are those fixed for clerks of the courts of common pleas in like cases. This is authorized by Sections 547, 759 and 4022-8, taken together.

Nov/ that these proceedings where a conviction of an offense is not required are not criminal proceedings has been held by ■our Supreme Court in two cases. The first case is that of Prescott v. State, 19 O. S., 184. The proceedings were had under the statute authorizing the establishment of houses of refuge and the subsequent enactment providing that in the cases provided for in the first statute, boys who were found to be offenders might be sent to the State Reform Farm. The court upholds the constitutionality of the act, and has this to say with respect to the proceedings, page 187:

“The provisions referred to in our state Constitution relate to the preservation of the right of trial by jury and to the rights of the accused in criminal prosecutions. We do not regard this ■case as coming within the operation of either of these provisions. It is neither criminal prosecution nor a proceeding according to the course of the common law, in which the right to a trial by jury is guaranteed.
“The proceeding is purely statutory; and .the commitment, in eases like the present, is not designed as a punishment for crime, but to place minors of the description, and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. The institution to which they are committed is a school, not a prison; nor is the character of their detention affected by the fact that it is also a place where juvenile convicts may be sent, who would othei-wise be condemned to confinement in the common jail or.the penitentiary.”

It will be observed the statute on the subject of the reform farm, which is now called the Boys’ Industrial School, was drawn in question, and it was held that the proceeding to send a boy there is not a criminal proceeding; but the statute at the time of this holding was not as it is now; it did not then provide for the conviction of an offense. It was similar in its terms to the provisions in the statute with respect to the Girls’ Home and similar to the provisions of the statutes with respect to houses of refuge. In the statute on the subject of houses of refuge there is a provision setting forth the offenses for the commission of which an infant may be confined therein, and there are other provisions to the effect that unless required by the person put upon trial, there need be no record made of the proceeding and provision is made to place incorrigible children therein; so that it is in no proper sense a criminal prosecution, because it does not result in the conviction of an offense. The conviction requires him to remain and be educated. The conviction provided for is incidental, and no record is made of it unless he shall require it. So it is with respect to the Girls’ Industrial Home. The court may require that there shall be a criminal prosecution, and then the statute provides for the institution of such prosecution, and in such cases, therefore, the probate judge would not be entitled to compensation for his services.

The statute (750, L., 61, Section 8) with reference to the Reform Sphool for Boys provides that—

“Male youth, not over 16 nor under 10 years of age, may be committed to the reform school by any judge of a police, or judge of the court of common pleas, or the probate court, when, on complaint and. proof by the parent, guardian, or next friends of such youth, supported by the sworn statement of two respectable witnesses, it is shown that he, by reason of his incorrigible or criminal conduct, is beyond the control of such parent, guardian or nest friend, and that, from regard to his future welfare and the protection of society, he should be placed under restraint. ’ ’

There is no provision now in the statute with respect to sending boys to the Industrial School.

Another case upon this subject is Cincinnati House of Refuge v. Ryan, 37 O. S., 197, 203. There the court refers with approval to the case of Prescott v. State, supra, and says this:

“The proceeding is purely statutory. It is intended to provide a summary method for caring for destitute children. The commitment is not designed as a punishment for crime, but to place destitute, neglected and homeless children, and those who are in danger of growing up as idle and vicious members of society, under the guardianship of the public authorities, for their proper care, and to prevent crime and pauperism. As to such infants, it is a home and a school, not a prison.”

In the case of Quigley v. State, 5 C. C., 638, this question is adverted to, and the truancy or compulsory education law was there drawn in question, and was sustained. Reference is made in the opinion to Cincinnati House of Refuge v. Ryan, and Prescott v. State, supra, as applicable to proceedings under the truancy law.

Our conclusion upon this matter is, that where boys are prosecuted and convicted of offenses against the laws of the state, and are therefore sent to the Boys’ Industrial School, no fees are allowable to the probate judge to be paid by the county; but where they are sent up under the compulsory education law, or in cases where no prosecution and conviction is had, fees are to be allowed and paid, and the same is true in all cases where girls are sent to the Girls’ Industrial Home.

Whether the bill in this particular case of the State of Ohio v. Louis Shinaver would come under the one rule or the other— that is to say, whether it was a criminal prosecution or a proceeding under the truancy law, we are not advised by this record, and since error, if any occur, must affirmatively appear on the record, we must assume that it was a criminal prosecution, and affirm), unless counsel shall agree that it was a case under the truancy law, in which case the record can be made to say so, and the bill will be allowed.

King & Tracy, for plaintiff in error.

W. Q. Tilery and J. 8. Martin, for defendant in error.

The case of the girl, Lena Stern, who was sent to the Industrial Home, evidently was a proceeding under the statute to which I have referred, which does not require conviction of an offense, and as to that we hold that the bill should be allowed.

I believe no fault is found with the items in these two last bills, so that the decree of the court of common pleas will be modified in accordance with this opinion.

The judgment for costs in this court will go against the county.


text:
    BAR OF THE STATUTE AS TO VENDORS’ LIENS.
    [Circuit Court of Lake County.]
    Abbey J. Callender v. Oliver W. Basquin, Executor, et al.
    Decided, September Term, 1904.

      Vendors’ Liens — Statute of Limitations.

    An action in equity to enforce a vendor’s lien, where there is no agreement in writing or other memorandum respecting the sale, except the deed of conveyance which contains no covenant or promise' on the part of the vendee to pay the balance of the purchase money, . is barred in six years.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    The action below was to enforce payment of a vendor’s lien. There was a demurrer to the petition which was sustained on the ground that the claim as shown by the petition was barred by the statute of limitations, and final judgment was rendered, dismissing the petition and for costs.
   The petition sets forth that on the 10th day of December, 1891, Abbey J. Callender sold the premises by a parol agreement to Egbert Valentine for $2,900, and on that day executed to him a warranty deed for the same; that Egbert Valentine paid him $733 on the purchase money, leaving a balance unpaid of $2,167. Egbert Valentine died February 16, 1893, testate, devising the premises to Rumina Valentine, his wife, who elected to take under the will, and went into possession of the premises with full knowledge of the claim of Abbey J. Callender. Rumina Valentine died November 20, 1900, testate, and by her will she appointed Oliver "W. Basquin her executor, who duly qualified. By the will portions of said premises were devised to certain devisees and-the residue of the premises was inherited by her heirs. The suit is against the executor and all the devisees and heirs of "Rumina Valentine.

The sole question made is: Did the court of common pleas err in sustaining the demurrer to the petition for the reason that the claim was barred by the statute of limitations ?

This question has not been directly passed upon by our Supreme -Court, but was referred to in the opinion of Dickman, J., in the case of Yearly et al v. Long et al, 40 O. S., 27, in which he says:

“By the code of civil procedure the distinction between actions at law and suits in equity was abolished, and for all such judicial proceedings the civil action is a substitute. Formerly in this state statutes of limitation embraced only remedies at common law, and not those cognizable in equity. But now, the lapse of time sufficient to bar the remedy, whether of a legal or equitable character, must be determined by reference to the statutory mandate.
“Tu seeking for the statutory rule of limitation applicable to the equitable charge under consideration, we can not adopt the rule governing suits on mortgage liens. A mortgage is a conveyance of the legal estate, which in law would entitle the mortgagee to his action for the possession of the mortgaged premises. A civil action to enforce this equitable charge we do not think can be classed among actions barred in twenty-one years ‘for the recovery of the title or possession of lands, tenements or hereditaments.’ A vendor’s lien perhaps bears a close analogy to the equitable lien created by the testator’s will; and it has been held in New York and other states than an action to enforce the equitable lien for the purchase money of land is barred by the lapse of six years after the debt has accrued; that the debt is the basis or foundation of the lien, and with it the lien must stand or fall - (Horst v. Corey, 15 N. Y., 505; Clyde v. Simpson et al, 4 O. S., 462).”

Homer Harper, for plaintiff in error.

(?. N. Tuttle, for defendant in error.

In the case of Borst v. Corey referred to, it is said by Justice Johnson:

“It is true that to sustain the suit in equity, the plaintiff must bring to his aid the equitable lien given by law, while the action at law can be sustained without reference to such lien. • But the lien is merely an incident to, and must stand or fall with the debt. The debt is the basis or foundation of the lien. The latter can not exist without, or independently of the former. In the suit to enforce the lien the cause of action, and the only substantial cause of action, is the debt.”

En an action to foreclose a mortgage it has been held by our - Supreme Court that a mortgage is a specialty and comes under the fifteen year provision of the statute (Kerr et al v. Lydecker, Admr., 51 O. S., 240) ; and although the debt for which it is given to secure may be barred if an action was brought upon it at law, yet the suit in equity could be maintained (Fisher v. Mossmon, 11 O. S., 42; Badly v. Smith, 14 O. S., 396, 411). But there is very little analogy between an action on a vendor’s lien and an action to foreclose a mortgage.

A claim for purchase money becomes a lien by operation of law. In this case, which is usual, there was no covenant or promise upon the part of the vendee, by the terms of the deed, to pay the balance of the purchase money, his liability being that alone of a simple debtor to pay in full'for the land he purchased, and also in this case the debt became due at once, there

• being no stipulation whatever for time in which to make the payment.

There is nothing in the petition in any manner tending to show that the transaction made a continuing and subsisting trust, and thereby took it out of the statute. Egbert Valentine did not hold the money or the land in trust for Abbey J. Cal-lender, but she was simply a creditor of Valentine for the balance of the purchase money.

"We think the court below did right in sustaining the demurrer to the petition, and the judgment is affirmed.


text:
    ATTACHMENT AGAINST FOREIGN CORPORATIONS.
    [Circuit Court of Cuyahoga County.]
    Armour Car Lines v. Bigalow Fruit Co.
    Decided, June 6, 1904.

      Foreign Corporations — Doing Business in this State — But not Established Here — Exempt from Attachment, When.

    Foreign corporations engaged in interstate commerce business, but not established within the boundaries of this state for the performance generally of their business, when they voluntarily take the benefit of the proviso in Section 148d, Revised Statutes, and comply with the provisions of Section 148c, Revised Statutes, are entitled to exemption from attachment under the, provisions of Section 5521, Revised Statutes, upon the ground that they are foreign corporations.
    Winch, J.; Marvin, J., concurs; Hale, J., not sitting.
    Error to Cuyahoga Common Pleas Court.
   In this ease we are asked to review the action of the Common Pleas Court of Cuyahoga County, in overruling a motion by plaintiff in error to discharge an attachment.

The petition in the case claims damages for breach of contract to care for two car loads of strawberries shipped by defendant in error from Chattanooga to Cleveland in May, 1900, in refrigerator cars of plaintiff in error, which ears, it is claimed, were to be iced by the latter and kept at a low temperature in transit.

An attachment was issued in the case, the affidavit therefor stating as the ground for attachment: “That said defendant is a foreign corporation, engaged in transportation and interstate commerce business.”

The motion to discharge the attachment alleges that the statement as to the ground of attachment is untrue and that defendant below had complied with Sections 148c and 148d, Revised Statutes.

At the hearing on the motion it was shown that Armour Car Lines is a foreign corporation; that it owns and uses part of its capital and plant in Ohio, and certificates of the secretary of state were produced showing that it had complied with the requirements of Sections 148c and 148d, Revised Statutes. The bill of exceptions shows much evidence was introduced on the question whether said foreign corporation is “engaged in transportation and interstate commerce business,” plaintiff in error claiming that the legal conclusion to be drawn from the facts developed at the hearing is that it is not such corporation, and defendant in error claiming that it is.

In the view we take of this case it is immaterial whether plaintiff in error is engaged in transportation and interstate commerce business or not, but conceding the claim of defendant in error, that it is, let us attempt to construe the statutes on the subject here involved.

Section 5521, Revised Statutes, provides that the plaintiff may-have an -attachment when the defendant is a foreign corporation, except as provided in Sections 148c and 148d, Revised Statutes.

Section 148c, Revised Statutes, provides that every foreign corporation, incorporated for purposes of profit, now or hereafter doing business in this state, and owning or using a part or -all of its capital or plant in this state, shall file a certain statement with the secretary of state and pay certain fees, and that every corporation subject to the provisions of said section which complies with its requirements, shall not be subject to attachment on the ground that,it is a foreign corporation, provided that this section shall not apply to certain foreign corporations, including “transportation or other corporations engaged in Ohio in interstate commerce business.”

This proviso, conceding that Armour Car Lines is engaged in transportation and interstate commerce business, applies to said company, for it is a foreign corporation doing business in this state and owning or using part of its capital or plant in this state, and therefore Section 148c, Revised Statutes, does not apply to it.

Section 148d, Revised Statutes, provides that no foreign stock corporation, other than certain banking and insurance corporations, but not excepting transportation or other companies engaged in interstate commerce business, shall do business in this state without first having procured from the secretary of state a certain certificate which shall be delivered upon the corporation complying with the requirements of the laws of this state. No such foreign corporation without such certificate shall maintain any action in this state upon any contract made by it in the state until it procures such certificate. Every such foreign corporation is required to file certain papers and statements and designate a person upon whom process against it may be served within the state, and pay certain fees.

Then follows a proviso that “such foreign corporations as comply with the provisions of Section 148c, Revised Statutes, as amended May 16, 1894, shall not be subject to process of attachment under Section 5521, Revised Statutes, or any law of Ohio, upon the ground that it is a foreign corporation or nonresident of this state. ’ ’

Manifestly this proviso includes corporations not specified under Section 148c, Revised Statutes, for there would be no use sub-served in using this language if it were intended only as a repetition of what is provided for in Section 148 c, Revised Statutes.

In this connection it is also significant that Section 5521, Revised Statutes, itself excepts from attachments such corporations as comply with Section 148d, Revised Statutes.

We take it that the proviso in Section 148<2, Revised Statutes, includes all foreign corporations, except such as are specifically excepted, in the opening paragraph of the section, and transportation and other companies engaged in interstate commerce are not so excepted.

So far as this act is in conflict with the provisions of the federal Constitution that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states, and that Congress shall have power to regulate commerce . * # * among the several states, it is, of course, inoperative, as was held in the case of Toledo Commercial Co. v. Manufacturing Co., 55 Ohio St., 217. That means that a foreign corporation engaged in interstate commerce business and not established within the boundaries of this state for the performance generally of its business, could not b'e compelled to comply with said act, or punished if it did not comply. But how about such corporations, which, though they can not be compelled to comply with the requirements of either Sections 148c or 148d, Revised Statutes, yet voluntarily take the benefit of the proviso in Section 148$, Revised Statutes, and comply with the provisions of Section 148c, Revised Statutes ? Are they not entitled to exemption from attachment upon the ground that they are foreign corporations ?

Brewer, Cooh <& McGowan, for plaintiff in error.

Higley & Maurer, for defendant in error.

Is it not possible that the Legislature offered this exemption to such foreign corporations as it could not lawfully compel to comply with these two acts, as an inducement to their voluntary compliance so that the state’s revenues might be increased by the payment of the fees required therein?

We think this explanation the only reasonable one for the existence of two laws on the regulation of foreign corporations, passed originally within three days of each other, and it gives effect to words which would otherwise be tautological.

It follows, therefore, that whether or not plaintiff in error is a transportation or other corporation engaged in Ohio in interstate commerce business, is immaterial. Having complied with the requirements of Section 148c, it is exempt from attachment as a foreign corporation.


text:
    QUESTIONS OF COMPLIANCE WITH CONDITIONS OF INSURANCE POLICY.
    [Circuit Court of Wood County.]
    The German Insurance Company of Freeport, Illinois, v. Caroline Kistner, Administratrix.
    Decided, April 15, 1904.

      Fire Insurance — Failure of Insured to Cause an Appraisement to be Made — Iron Safe Clause — Keeping of an Inventory Made Within Twelve Months — Liberal Construction Should be Given to the Action of the Parties Where no Question of Dishonest Dealing Arises.

    1. Inferences which may be drawn from a later holding of the Ohio Supreme Court do not warrant an inferior court in going contrary to the declaration in the 60th Ohio State, that the provision in a policy of fire insurance for an ascertainment by appraisers of the amount of the loss, and the furnishing of the award to the company by the insured, imposes no obligation upon the insured to furnish such an award, except where an appraisement has been demanded by the company.
    2. The requirement of “the iron safe clause” that the insured shall keep a set of books showing a complete record of the business transacted, does not make it necessary that the insured shall keep a scientific set of books, but it is sufficient if he keep such books as made it possible to fairly ascertain the amount of goods on hand at the time of the fire.
    3. The fact that the cash book of a country store had not been placed in the safe at 10 o’clock at night, and can not be produced because destroyed by a fire occurring at that hour, does not afford a defense under the iron safe clause, where a lunch counter connected with the store was still in operation at that hour.
    Haynes, J. (orally); Parker, J., and Hull, J., concur.
    Error to the Court of Common Pleas of Wood County, Ohio.
   The plaintiff in error brings its action in this court to reverse a judgment of the court of common pleas. John Kistner, prior to the 28th day of June, 1901, and for a good many years before, had been carrying on a grocery and dry goods store in the village of Custar, in Wood county, and had been insuring with the German Insurance Company, plaintiff in error, and on this 28th day of June, 1901, took out another policy of insurance for another year for the sum of one thousand dollars on his said stock of goods. On the 26th of April, 1902, his store and the contents was destroyed by fire, and thereupon efforts were made by Caroline Kistner, his administratrix (he having died in the meantime), to collect the loss upon this policy of insurance. The negotiations resulted in a disagreement of the parties, and a suit brought in the court of common pleas resulted in a verdict and judgment for the administratrix, and the prosecution of a petition in error in this court.

Two principal points are urged before us as grounds for reversing the judgment of the court of common pleas, and they arise upon certain clauses in the insurance policy, one clause of the policy reading:

“In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, state separately sound value and damage, and failing to agree, shall submit their differences to an umpire, and the award in writing of any two shall determine the amount of such loss; ’ ’ then it further provides that the loss “shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award of appraisers when appraisal has been required.”

I should say that there was no appraisement ever made; none being required by either party. The defendant sets up as one of its defenses that the plaintiff below failed to cause an appraisement to be made, and to furnish an award to the company in writing by such appraisers, and it claims that by reason of such failure, no suit can be maintained upon the policy of insurance. The plaintiff below relied upon a decision made by the Supreme Court of this state which is reported in the 60th Ohio St., page 513, the ease of Grand Rapids Ins. Co. v. Finn, and the defendant relies upon the ease of Insurance Co. v. Carnahan, in 63d Ohio St., page 258. The court, following the case cited by the plaintiff below, in charging the jury that this defense that had been set np by the insurance company and referred to by it in its second defense, said:

“The second defense relates to the making of an estimate by appraisers as to the amount of the loss; as to that question, there is nothing for the jury to consider.”

It is claimed by the plaintiff in error that the ease in the 63d Ohio State overrules the case in the 60th Ohio State. The suit in the 60th Ohio State was brought upon o policy that contained, as we understand the citation or quotation, substantially the same language as the policy which is. sued upon here, and especially that clause which provides that there shall be furnished an award by appraisers when an appraisal has been required. And the Supreme Court in that case in the first syllabus, say:

‘ ‘ The provisions of a policy of fire insurance that in the event of disagreement as to the amount of loss it shall be ascertained by appraisers; that the loss shall not become payable until sixty days after notice and satisfactory proof of the loss have been given, ‘including an award by appraisers, when an appraisal shall have been required,’ and no action on the policy shall be sustainable, ‘until a full compliance by the insured with all the foregoing requirements,’ do not make either an ascertainment of the loss by appraisers or a demand by the insured therefor a condition precedent to a right of action on the policy to recover the loss. Such provisions impose no obligation on the insured to furnish an award of appraisers, except when an appraisal has been demanded by the insurer.”

The decision discusses the matter at considerable length, and gives the citations and authorities.

In the Carnahan ease referred to, suit had been brought upon a large number of policies, and six of them are included in the case reported. Four cases had gone to the Supreme Court before this that were affirmed, and these six were brought up and reversed. There were several points made in the decision, but the third proposition they discuss is the one that refers to clauses of this nature. I have carefully gone into the Carnahan case and I see no statement that there was a clause in the policy like that in the policy in the case at bar including an award by appraisers, when an appraisal has been required. There were clauses in it, however, that upon a disagreement there should be an appraisement and award, and the same clause was in those policies that is in the policy in the case at bar, substantially that—

“No suit or action upon this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, not unless commenced within twelve months next after the fire. ’ ’

In the fifth syllabus of this case, the court state their views as follows:

“A condition in a policy of insurance against fire, that in case of loss, and a disagreement or difference between the parties as to the amount of the loss, that amount shall be ascertained by arbitration or appraisal, is a 'proper and valid condition; and where it is also provided that the condition as to arbitration or appraisal must be complied with before a suit can be brought against the insurer, the condition is thereby made a condition precedent, and to entitle the insured to maintain an action to recover under the policy, he must show that he has either performed the condition or has a legal excuse for non-performance thereof.”

I will not read from the opinion ait any great length, but there are a few lines I will read. The judge delivering the opinion, says:

“The insured can not rest upon the silence of the insurer as to arbitration, when a difference arises as to the amount of the loss. It was therefore incumbent on the insured, not the insurer, to perform this condition as a condition precedent to his right of recovery, whenever a difference should arise, as to the amount of the loss, whether a demand was made by the insurer or not; and, a fortiori, when the other party asserted a difference and demanded a compliance with the contract, the insured firm was put to its choice, at its peril, whether to perform or not.”

It is suggested by counsel for plaintiff in error, in argument, that this opinion overrules the decision in the case in the 60th Ohio State. The ease in the 60th Ohio State was decided June 20, 1899, and the case in the 63d Ohio State was decided November 13, 1900, a little less than eighteen months after. Judge “Williams, who delivered the opinion in the case in the 60th Ohio State, and the other members of the court, were the same in each case, and in the case in the 63d Ohio State Judges Min-shall and Williams dissented. The dissenting opinion is not given, but it is entered. Now if there had been any intention by the court in making up the opinion in the 63d Ohio State to overrule the ease in the 60th Ohio State, we think they would have so stated,. especially as Judge Williams, who delivered the opinion in the 60th Ohio State, was present and dissented. Undoubtedly there was a discussion of that whole question, and a discussion of the 60th Ohio State and its bearing upon the latter case. We think that the difference between the two cases arises perhaps upon this clause: “If the parties require it, or it be required.” Judge Williams, in the ease in the 60th Ohio State, says either party may require it. In the case in the 63d Ohio State that was omitted, and it would be practically an agreement that in ease of disagreement there shall be an appraisement and award, and that appraisement shall be furnished to the insurance company. Now in that case it might well be , argued that the matter of disagreement laid the foundation for the. obligation to have an appraisal and award, but when you come to the matter as to whether it would be required by either party, then, unless it be required, it might fairly be said to be waived. That perhaps is the distinction between the two cases. Suffice it for us to say, however, that when we find a case from the Supreme Court that covers this case exactly in point, we can not say the ease is overruled and refuse to follow it, until the Supreme Court itself says that the propositions as they stand in the policy in that ease have been overruled. At any rate, until further advised by the Supreme Court, we shall hold that the case in the 60th Ohio State will be binding in this case, and that the court did not err in holding that it was a question that the jury should not consider.

Now there is another proposition that it seems is set np as a defense, and it is called the “iron safe clause.” They seem to have a printed slip that is used when they insure a country store, that is pasted into the body of the policy and becomes a part of the policy, and that says, after stating that there is so much money on the stock of goods in said store, that:

“It is a part of the consideration for which this policy is issued, and the basis upon which the rate of premium is fixed, that assured under this policy covenants and agrees to keep a set of books, showing a complete record of business transacted including all purchases and sales, both for cash, credit and exchange, together with the last detailed inventory of stock which shall have been taken within twelve months prior to the date of the happening of any loss; and further covenants and agrees to keep such books and inventory securely locked in a fire-proof safe at night, and at all times when the store mentioned in the within policy is not actually opened for business, or in some secure place not exposed to a fire which would destroy the house where said business is carried on. And in case of loss, the assured agrees and covenants to produce such books and inventory; and in the event of a failure to produce the same, this policy shall be deemed null and void, and no suit or action at law shall be maintained for any such loss. ’ ’

It was argued that the insured in this case was required to take an inventory every twelve months, but we don’t see anything of that kind required in the policy. The language of the policy is this:

“It is a part of the consideration for which this policy is issued, and the basis upon which the rate of premium is fixed, that assured under this policy hereby covenants and agrees to keep a set of books, showing a complete record of business transacted, including all purchases and sales, both for cash, credit and exchange, together with the last detailed inventory of stock which shall have been taken within twelve months prior to the date of the happening of any loss; and further covenants and agrees to keep such boobs and inventory of stock securely locked, etc.”

He is to take and keep it; beep an inventory which shall have been taken within twelve months prior to the date, or it may have been taken twelve months before. He don’t agree to take an inventory every twelve months. That may have been the understanding of the insurers. Indeed, they argue along that line, for when this fire occurred, it transpired that this inventory had been taken a year and seven days before, and it was objected that they could not use that inventory. We don’t think this clause would bar the use of that inventory; we think hie had a right to use that inventory and rely upon it.

It appears from the testimony in the case that this fire occurred a little after ten o’clock at night. It seems in that village there is a custom, and they had in this store, a little lunch counter over which they sold such articles as are sold at lunch counters, and they keep open until ten o ’clock, or such a matter, it being a railroad town, and it seems that one brother had started home when he heard the alarm of fire and went back. The other brother had remained in the store and was serving at the lunch counter. The fire originated in the second store from them, and there was a great deal of excitement and discussion as to how they should protect the building of the insured. Questions of that kind came up, but the fire progressed and the parties began to get out what things they could, and finally the building and its contents burned. It appears that the parties kept certain books, and that the main body of those books were in the safe; but there was left out a bill book, and a cash book, and those were burned. As I have stated they kept certain books; they did not keep them in the manner and form perhaps that a scientific book-keeper would keep them; they kept an account of the goods sold to their customers; they kept a cash book, and kept the bills of goods that they bought. They also kept a separate book and when they paid any bills they kept track of them in that book; and from all those things they had the data to make up an account. They did not keep what is called a merchandise account, showing all goods received, and showing the amount sold. It is set up in the answer that Kistner did not keep any such books of account as he was required to keep, and that he did not furnish those books. He did not produce the whole of the books for the reasons I have stated. The court charged the jury this:

“The fourth defense relates to the keeping of a set of books showing a complete record of the business transacted, and the entire defense as stated in the answer, I have read to you in stating the issue in the case. The defendant claims that the plaintiff did not keep a set of books as required by the policy, and that if he had any books or inventory, he failed to 'keep them in a safe, or other secure place as he was required to do under the contract. This provision of the policy set up in the fourth defense is legal and binding upon the plaintiff, and if you find from the evidence that the plaintiff failed to subtantially comply with the same, he can not recover. If you find from the evidence that the plaintiff failed to keep such books as were required, then he can not recover, or if you find that he did keep such books, but that such books or a part of them were destroyed at the time of the fire through the fault of the plaintiff, then he can not recover. But if you find from the evidence that the plaintiff substantially complied with this part of his contract in the the keeping of the books and inventories, and in the preservation of them, if you also find any part of such books were destroyed at the time of the fire, but without fault of the plaintiff, that fact would not prevent him from recovering in the action. ’ ’

As I have stated, the insurance company stands upon this clause of the contract, that those books have not all been produced; they claim further under this clause that those books have not been kept. Now it is not claimed, as we understand, that these parties should keep what might be called a scientific set of books, but they should keep books showing that the amount of goods that they have on hand be fairly and reasonably ascertained, and it seems to us from the course of business, and from the testimony of the parties that the books they kept were sufficient to enable this company in case of loss to have ascertained substantially the amount of goods that the parties had on hand at the time of the fire. This man, as I have said, had been in business there for years; had been insured by this same company for a long time. There is no claim made but what he was honest and upright, and no claim but what the parties who practically conducted the business for him, his sons, were the same; and there is no claim that they, in any manner or form attempted to overstate the amount of their loss, or attempt to defraud the insurance company. It is claimed, however, that the two books which were burned, that were important, were lost by reason of the negligence of the brothers, who represented the father, the insured; that the books should have been put in the safe before the time of the fire, and that after the alarm of fire was given, the brothers should have saved those books if they were out of the safe. We think that the charge of the court was substantially right upon this subject. If there had been gross negligence and carelessness on the part of the plaintiff, or those representing him, and the jury so found, then he ought not to recover; but if they acted as ordinary and prudent men would act under such and like circumstances, then, and in that event, they ought not to be visited with the penalty of a forfeiture of the amount of this policy, or visited with the loss of the whole stock of goods.

A fire alarm is not a very pleasant sound to anyone, but when these brothers heard this one, they immediately did what every prudent man would do; they commenced to see about saving the building, and stopping the spread of the fire, and they worked to that end, but when the fire got to their building, they com-' menced to get out what things they could. Now, perhaps it would have been wiser if they had thought of saving the two books that were afterwards burned, but it did not seem to have occurred to them, nor can we say that they were guilty of gross negligence in that they did not stop to pick up those two books and save them; they were doubtless excited, but they were doing the best they could, and were acting honestly and fairly in their attempts to save the building and the contents, without any intention of defrauding the insurance company, or' defrauding anyone.

Some question is made about this eating room, that it was-not really open. Let us see about that. I am inclined to think, from all the testimony, that the store was fairly open at that time. They might keep an eating house or a lunch counter and keep it open late in the evening, because that might be the best time for customers. So long as the store was open, and so long as" parties wanted to purchase anything, the plaintiff had a right to sell. There is no doubt that so late in the evening they did not expect many customers, and there might not be so much use for the cash book being out of the safe, but that cash book was there to be used, and we do not think they were guilty of negligence by having it out at that time of the night, and under these circumstances.

Van Pelt, Dale <& Fameding, J. W. Grabiel and James 0. Troup, for plaintiff in error.

Baldwin & Harrington, for defendant in error.

We realize that these are important questions, and there seem to have been a great many decisions upon this clause in the policy; these have been cited at length, and we have endeavored to grasp the spirit of them and to get at what is fairly and justly the thing that is right between these parties. We realize that these policies, as a rule, are full of conditions printed in fine print, and people generally don’t read them, or know much about them if they do, and we imagine it is very seldom that the insurance companies provide a school of instruction to enlighten the policy holders; that they find out a great deal more about the meaning of a policy after a fire than before, and we think there should be a liberal construction given to the acts of these parties in regard to the keeping and saving of these books and what they did; and, where they have sustained, as they have in this case, a fire loss — honestly and justly, as we believe — they should be recompensed in accordance with the spirit of the policy of insurance or the principles of insurance.

Some minor questions have been raised in this case, but we do not find any errors in the record that are important, and the judgment of the court of common pleas wil be affirmed.