text:
    ADVANCEMENT EVIDENCED BY A NOTE.
    [Circuit Court of Cuyahoga County.]
    John Hicks, Administrator of the Estate of Elizabeth Hicks, v. R. H. Hicks.

    Decided, February 17, 1906.

      Promissory Note — Executed by a Son — Claimed to have been an Advancement — Definitions of Advancement — Presumption—Declarations by Deceased Mother — Competent as Evidence of Intention— Weight of Evidence.

    1. Where a son executed a note in favor of his mother and paid interest thereon, there is a presumption raised that the money evidenced by the note was received by him as a loan.
    2. But the presumption thus raised'may be overcome by evidence as to the intention of the parties at the time of the transaction and thereafter; and in an action by the administrator of the estate of the mother for recovery on such a note, evidence as to declarations made by the mother to third parties, to the effect that she did not intend the money should be treated as a loan, but as an advancement, are admissions against her interest and are admissible; and if the evidence establishes that it was her intention it should be treated as an irrevocable gift, and the son accepted it with that understanding, it must be so regarded, notwithstanding the execution of the note and the payment of interest thereon.
    Marvin, J. (orally); "Winch, J., and Henry, J., concur.
    Error to tbe court of common pleas.
    The parties here are as they were in the court below. Elizabeth Hicks was the wife of John Hicks. The defendant is their son. . .
    On the '3d of September, 1901, Elizabeth, then being in full life, furnished to her said son the sum of $1,000 toward the purchase of a farm which he bought about that time. The father, John, at the same time furnished the son $2,000 for the same purpose. The son gave to each of his parents his promissory note, bearing interest, for said several sums.
    Elizabeth Hicks died intestate in 1904, and the plaintiff is the duly appointed and qualified administrator of her estate. Except payment of interest from time to time made as it became due to bis mother in her lifetime, R. PI. Hieles has paid nothing on the note given to his mother.
    Suit was brought by the administrator on this note. The defendant answered, making no defense except that the money furnished him by his mother was not a loan, but was a gift made by way of advancement to apply on what would be coming to him out of the estate of his mother after her death. The only question at issue in the trial was, whether the money furnished was a loan or an advancement.
    The jury returned a verdict for the defendant and judgment was entered in accordance with the verdict. All proper steps have been taken to bring the case before this court for review, as well upon the weight of the evidence as upon questions of law raised at the trial.
    No exception to the charge of the court was taken by the plaintiff, nor is it even suggested here that the charge was not in all respects what it should have been. Rulings upon the admission of evidence are, however, complained of, and it is further urged that there was error in overruling the motion of the defendant for a new trial, on the ground that the verdict was against the weight of -the evidence and not sustained by sufficient evidence.
    The defendant, being incompetent under the statute to testify on the subject, evidence was offered in his behalf of conversations had by others with-his mother on the subject of her furnishing him this money as a loan or by way of advancement, and her statements made to various parties of what she intended in regard to the matter, and how she came to take the note, were admitted over the objection of the plaintiff.
    Various definitions have been given to the term “advancement” as applied to the distribution of estates. Bee .Thornton on Gifts, Section 525; Woerner’s Americaov Law of Administration, Volume 2, Section 555.
    In Moore v. Freemm, 50 O, S., 594, Judge Spear defines it in these words:
    “An irrevocable gift by a parent to a child In anticipation of Hholi eliild’s ftiimu*. sluws oí tho jmumtV ¡.«trite.M

      Many of the definitions are broader than this, making- it include such gifts to others than children, who at the death of the donor, intestate, would be entitled to distribution in the estate, but under any definition given by the text-books or' laid down in the eases, if the money furnished by this mother to her son was intended by her and accepted by him as an irrevocable gift, to be treated as a part of the estate of his mother which would come to him on distribution at her death, then it was an advancement.
    The fact that the son gave his note for the money furnished, and paid interest thereon, raises a presumption that the money was borrowed by him. This, however, may be overcome by evidence. See 5 C. C. — N. S., 74, and other authorities.
    The intention of the parties at the time the money was furnished determines its character. That this may be shown by the declaration of the donor, where» he states that the money furnished was a gift or advancement, rather than a loan, after it was made is admissible as an admission against interest. 56 (). S., 242, and what is said on page 246 we think shows beyond question that the statements made by the mother after or before or at the time, certainly at the time and after the money was furnished, are admissible as admissions against her interest. It was-her interest to have this treated as a loan, and when she, if she did so, stated to others that it was not a loan, that she had simply given it to her son to be treated as an advancement or -a gift, her statements in that regard are admissible.
    Two witnesses testify that Mrs. Hicks stated in reference to the note which she held against her son, that she took his note because her husband made her do so; that she took the note because father insisted that she have a note. It is urged that this is inadmissible; that it is not admissible to show by the statement of one who has furnished money, or rather one who it is claimed has furnished money, to show by the statements of such person that she did furnish the money. Tt is admitted in this case that she furnished the money, indeed, that is the foundation of the plaintiff’s claim and the statements made by her i'O'ndíug to show that filie (lid not take n ntjtfl 'Pap (hat money with aay intentiou that the mho yliottitl ofui* bo paid) wul that she did not loan the money to her son, but gave it to him, were admitted. There was no error in the admission of this evidence.
    But it is said that the verdict is clearly against the weight of the evidence. The case presents some curious, some sad features. It is a most unhappy thing that this father has thought it best to bring this suit against his son. It is a little difficult to know for what reason he thought it his duty to bring the suit. The evidence of the father himself shows that the estate of the mother is more than enough — counting this as an advancement and counting a like sum furnished to one of his sisters as an advancement — that there is more than enoug’h of the estate so that this son’s portion would be fully $1,000, except that the father, being entitled to a distributive portion, could reduce the distributive portion of the children, and that would reduce the portion to which the son, R. IT., would be entitled to less than $1,000. The evidence shows — or at least the witnesses testify— •that the mother said to her niece — the niece testifies that the mother said to her that the note she had against R. H. Hicks should be delivered to him; that she did not want to retain the note. One’of the daughters testifies that the mother said to her that she only took a note because father insisted upon it. Other witnesses testify in a similar manner, that the mother had stated that this money R. IT. Hicks had was to be his, a gift. The evidence is not as strong as it sometimes is, and it is barely possible that if the members of the court had been jurors they’ might have found that the evidence was not of that clear and satisfactory nature to establish that where a note is given by a son to a parent for money furnished by the parent that it was an advancement. Still, the jury were carefully charged by the court that the evidence must be clear and satisfactory. The jury found for the defendant. We are not prepared to say that it was manifest error for them so to find. The result is that the judgment is affirmed.
    T. H. Johnson, for plaintiff in error.

      Brac&y c& Doiolmg, for defendant in error.

       Affirmed by the Supreme Court without report (76 O. S.,-).


source: Caselaw Access Project

license: Public Domain

text:
    DAMAGES CAUSED DY THE FLOODING OF LAND.
    [Circuit Court of Huron County.]
    City of Norwalk v. Frances Blatz.
    Decided, 1906.

      Adverse Possession — Limitation of Actions — In Gases of Damage Caused by the Flooding of Lands — Prescriptive Right to Flood Lands — ■ Injury from Emptying Sewage into a Stream Grossing Plaintiffs iTand.

    1. For injuries caused by the flooding of land with water from sewers, which has washed away bridges and soil; damages can be recovered for a period of four years only, preceding the bringing of the action.
    2. Recovery from a city can not be had by a land owner for damages caused by the flooding of his land with water from sewers constructed by the city, when such right has been enjoyed by the city for the prescriptive period, and the damages are the natural consequences of the exercise of such right by the city.
    Parker, J.; Haynes J., and Winch, J. (sitting in place of Wildman, J.), concur.
    The action in the'court below was by Frances Blatz against the City of Norwalk. In her-petition, she set forth that she was the owner of a tract of land of about seven acres in the suburbs of the city; that she had been the owner of this land for more than six years, and that over and across this land- from time immemorial there had been and then was a natural watercourse, and until the action upon -the part of the city of which she complains, .this water-course supplied the land with pure and wholesome water, sufficient in quantity and quality for all domestic and agricultural purposes. She charges that the defendant has constructed, or' caused to be constructed, sewers in, through and along many of the streets and avenues of said city — naming them — and that without any right or authority the city made this water-course the outlet for these sewers, and that these sewers carry away from the city the contents of privy vaults and all sorts of offal such as usually go into sewers. She also says that the city has so constructed its drains and sewers as to throw down upon these premises and into this water-course a greater quantity of water than would naturally flow there, and that this has resulted, in times of freshet, in floods that have carried away bridges upon her premises over-spanning this water-course, and has resulted in washing away the soil, and in widening the channel, whereby a part of her land has been permanently lost to her. And she says that the offensive matter that has been brought down in the sewers has been thrown upon her lands, destroying the herbage; that the air has been contaminated and made foul-smelling, disagreeable and unhealthful, and her land rendered unfit for occupancy for dwelling purposes, and for farming and grazing, and that these wrongs have continued during the period of six years next prior to the beginning of the action; and for these wrongs she claims damages in the sum of $1,500.
    The city denies that it has committed these wrongs, and denies that it has east any more water upon her premises than naturally would flow there; but the city goes further and claims that even if it has by sewers or drains, carried down any more water than would naturally flow upon the premises, it has exercised this right for such a period of time, exceeding twenty-one years, under claim of right, that it has acquired the absolute right to do it, and that the plaintiff has no longer any night to object to or oppose it. This is denied by the plaintiff.
    The case was submitted to a jury which brought in a verdict in favor of the plaintiff below for $300. The city filed a motion for a new trial upon various grounds, which motion was overruled; and in its petition in error here it sets forth the various grounds upon which it claims this judgment should be reversed; but in the brief filed by counsel for plaintiff in error the grounds really relied upon are stated, and in'discussing the case, we will follow those assignments of error. They are five in number, and. the fourth and fifth we may as well dismiss at once. The fourth is: “The court erred in the admission and rejection of testimony. ’ ’
    We find no error in this respect, unless such as may be covered by another assignment of error involving the subject of the statute of limitations; and that subject will be discussed further on, and will not be given attention under this assignment.
    Fifth. “The attorney for the plaintiff was guilty of misconduct in his final argument to the jury, as stated in the affidavits filed in support of the motion for new trial.”
    We do not find that the affidavits have been' made part of the bill of exceptions; therefore, they can not be considered; and nothing on the subject is otherwise shown.
    Going back to the first:
    “The verdict of the jury was against the weight of the evidence concerning the right of the city by prescription to maintain its sewage across the premises in question.”
    We are not prepared to say that that is so &s to the sewage; but it seems clear to us that as to the alleged flooding of the premises by an excessive quantity of water; which was one of the matters submitted to the jury, and presumably one of the things taken into consideration in making up their verdict, is against the weight of the evidence. That is to say, the casting of water upon these premises in the quantities shown has been continued by the city for so long a period that it has acquired a right to this use, and the land has become subject to this servitude; and this requires a reversal of the judgment; for we can not tell how much of the $300 was allowed on this account, or how much upon the claim which the evidence supports.
    A part of the damage was claimed for the washing of the banks and a part for the washing away of bridges. If the city acquired a right to carry down that quantity of water, then the plaintiff’s land was subject to all the natural consequences of the water flowing thereon, and if it washed away some of the banks, or if it carried away bridges that were not constructed so as to withstand floods, that would be one of the burdens the servient land would have to bear; so it follows (since we have found that the verdict as to the right of the city to convey water down in that way was against the weight of the evidence) that so much of the verdict as is founded upon the loss of bridges and the loss of soil and washing away of the soil is unsupported by the evidence.

      The second assignment is: “ That tbe verdict of tbe jury was excessive and could not have been arrived at in any legitimate way, and was evidently the result of passion and prejudice.”
    We find that it was probably excessive on account of the jury adopting such wrong basis for its estimate of the damages, but not because of any passion or prejudice apparent in the record.
    One of the questions much debated and apparently carefully considered by the trial judge was as to the statute of limitations applicable to these claims, and to certain elements of damage; and, a retrial being probable, we'deem it expedient to discuss this question.
    The plaintiff in error complains of the refusal of the court to charge upon this subject as requested, and of the charge as given. The requests refused on account of which complaint is made, are numbers 32 and 17; number 12 reads:
    “You should in no case, even if you find for the plaintiff, award any damages for the claimed washing away of bridges, or parts of bridges, which occurred before four years next proceeding the beginning of this action.”
    That was refused; number 17 reads:
    “In no case is the plaintiff entitled to damage against the defendant on account of the washing away of the banks of the stream or water-course in cpiestion, which occurred prior to June 19, 1897.”
    ■ That would carry it back of the period of four years, and that was refused. The coux-t charged the jury upon this subject as follows:
    “The injuries alleged by the plaixxtiff are of two classes— those of a temporary character affecting, as claimed, the value of the use of the premises owned by the plaintiff, and those more permanent ixi their nature axxd alleged to have affected permanently the value of said premises. The claimed temporary injuries can afford a basis of recovery so far only as they occurred within a period of four years just prior to the beginning of this action, the date of which beginning, as I have told you, was June 19, 1901. The measure of danxages for any such temporax'y injury would be the depreciation, if any, in the rental value of the property while so affected, during said period. As to alleged permanent injuries to the real estate by the washing away of banks of the claimed water-course and widening its channel, and by the destruction of any bridge or bridges, the plaintiff alleges that this occurred within the period of six years just prior to the same date, June 19, 1901, and if she is entitled to a verdict for such permanent injuries, it can not be enhanced by reason of other injuries caused and occurring prior to the beginning of said period of six years. The. measure of such permanent damage would be the depreciation in the permanent market value of the premises affected during the six years. ’ ’
    Now, we understand that the court did not charge that the recovery, with respect to these permanent injuries, would be limited to six years, because the six years limitation under the statute would be applicable, but upon the theory that the twenty-one years limitation would be applicable, and that the plaintiff could not go back more than six years, because she had limited herself in her petition to six years. So that we have to consider whether four years or twenty-one years is the true limitation in a case of this character.
    This is clearly an action for trespass — trespass on the case, or nuisance — and the statute of limitations applicable in Section 4982, Revised Statutes, and not Section 4977, Revised Statutes, which applies to an action for the recovery of title or possession of real property; and it' is conceded, we believe, by all, that Section 4982, Revised Statutes, applies generally, though it is urged by defendant in error, and seems to have been the opinion of the court below, that there are certain exceptional circumstances, even in action of trespass, where Section 4977, Revised Statutes, may apply.
    Section 4979, Revised Statutes, reads:
    “Civil actions other than for the recovery of real property can only be brought within the following periods, after the causes of the action accrues.”
    Section 4982, Revised Statutes, reads:
    “Within four years: An action for trespass upon real property, but in an action for trespass under ground or injury to mines, the action shall not be deemed to have accrued until the wrongdoer is discovered.”
    This section covers several other classes of actions, the second clause covering actions for relief on the ground of fraud, and the next to the last clause, "An action for an injury to the rights of the plaintiff not arising on contract and not hereinafter enumerated. ’ ’
    We think this class of actions comes specifically under the first clause read; and, if not, certainly the last clause would cover it. I read the first clause only of Section 4977, Revised Statutes, because that is all that is applicable here:
    "An action for the recovery of the title or possession of real property, can only be brought within twenty-one years after the cause of such action accrues.”
    We need not consider what the limitation would have been if plaintiff had elected, as she might have done, to pursue some other remedy; though it may be suggested that if she had proceeded under Section 6448, Revised Statutes, to compel an appropriation of the property, or the right to cast water and sewage upon her land, the limitation would have been twenty-one years from the time the city began to impose such servitude; and it may be that in such case different rules of limitation as to temporary as well as permanent damage, and as to the measure of damages, would obtain. See eases of Fries v. Railway, 56 Ohio St., 135; Railway v. O’Hara, 48 Ohio St., 343; Pitts. & W. Ry. v. Perkins, 49 Ohio St., 326, where it is held that the twenty-one years limitation applies under Section 6448, Revised Statutes. We are advised that the action of the court below upon this subject was influenced, and that the court was practically guided by the case of Little Miami Ry. v. Hamblelon, 40 Ohio St., 496, a decision by the Supreme Court Commission, wherein something is said about the twenty-one years limitation to which I shall refer later.
    We think the true rule upon the subject is stated in the case of Mansfield v. Hunt, 19 C. C., 488, in the third clause of the syllabus:

      “When a municipal corporation or an individual commits a nuisance or an act of trespass upon the lands of another, and thereby injures such other, and to the full extent that such act will ever injure him, such municipal corporation or individual is liable at once for such act and its effects, and the time of the statute of limitations runs from the time of such commission of the nuisance or act of trespass. But where the wrong complained of is a continuing nuisance or trespass, until such continued nuisance or trespass by adverse use ripens into a presumptive right and estate in the wrongdoer, the in juried party may bring his action.”
    Reading from pages 571 to 572, a part of the opinion of-the court:
    “It is alleged in the petition, and the record shows, that the city has caused its sewage to be discharged into said stream continuously for twelve years next -preceding the time of the bringing of this action, to the special and substantial injury of the plaintiff; and that it has ever since in the same way and manner continued to corrupt the waters of said stream to his damage. ’ ’
    It will be noted that the plaintiff undertook to recover for injuries covering a period of twelve years.
    “We, therefore, hold that suit could be brought for such injury at any time within twenty-one years from the completion of said act of nuisance or trespass, causing such injury; but damages could only be recovered for injuries resulting therefrom within a period of four years next preceding the bringing of the action. To this extent, such damages would not be barred by Section 4982, Revised Statutes.”
    The ease of Little Miami By. v. Hambleton, supra, seems to us to be confusing. But it must be borne in mind that in that case the railroad company had been so long in possession of the street in question that it had acquired the right to remain there, and it is doubtful if the plaintiff had any remedy under Section 6448, Revised Statutes, for the additional burdens amounting to invasion of his rights, such additional burden by' the railroad company consistiong of a raising of the grade some twenty inches, and putting in an additional track, thereby increasing the servitude. At all events, the plaintiff recognized the right of the railroad company to occupy the street, and sought no remedy but compensation for additional damages, but sought permanent damages on the theory that the railroad company would permanently impose such additional burdens. The judgment doubtless put an end to the right of the plaintiff to seek further remedy by way of damage.
    A consideration of this condition will aid us, we think, in determining what-was' intended by the court in the use of the term “permanent injuries.” It was said in that case — reading the second and third clauses of the syllabus:
    “2. That the plaintiff may recover for permanent injury to his property, resulting from a change of grade, or for the additional track, at any time before the right to maaintain the track at the raised grade and the additional track, was complete.
    “3. That the right to recover for temporary injury resulting from a change of grade, or for the additional track, is limited to four years prior to the commencement of an action for the same. ’ ’
    This syllabus leaves room for the inference that the right to recover for permanent injury might reach back of the period of four years. In the opinion by Judge McCauley, it is said, page 503:
    “As to the temporary injury resulting from the raised track before the lease, the Little Miami Company alone Avould be liable for that. And this is so because the injury is not continuing in its nature, and having occurred before the lease, the lessee had no connection with it. As to the temporary injury after the lease, both companies might be liable for it. If the lessor without right to do so, created that which at times caused damage, as by overflow of water or any injury merely temporary, and the lessee continued the cause of such injury, both should be liable.
    “The charge of the court on the trial below was correct, so far as the causes of damages were affected by limitation; that is, that for permanent injury the limitation would be twenty-one years, the whole period during which the acts of the defendants in continuing the cause of such injury was without legal right. And. that for temporary injury the plaintiff would be limited to four years before his action for the same.”
    The court does not say what it means by ‘ ‘ permanent injury, ’ ’ and what was meant is not apparent from a reading of the case. The case .does not disclose what, if anything, was allowed by the jury to the plaintiff for so-called “permanent injuries,” or of what those so-called permanent injuries consisted; we are left very much in the dark on that subject, except that the court treats the overflow of water, or consequences of the overflow of water, as injuries of a temporary character. The injuries, as shown by the proof, were of two kinds: first, those resulting from the overflow of water on the premises of the plaintiff, and consequent injuries of a temporary kind; and, second, injury in its nature permanent, resulting mainly from a change of grade of the railroad, whereby the relative level of the property of the plaintiff and the railroad was changed, and whereby permanent changes in the buildings and improvements on the plaintiff’s property were made necessary, and in consequence of which his-property was permanently damaged.
    It seems to us that the real ground upon which the court may have made, and, we assume, did make, the distinction between temporary and permanent injury — the real classification — is indicated in the brief of comisel for defendant i-n error. The counsel were, Iloadly, Johnston & Colston. I read a part of that brief:
    “Statute of limitations. Within what time was the action barred? The answer to this question depends upon the character of the act or acts forming the basis of the cause of action. If that which is done amounts to a permanent destruction or modification of the lot owner’s easement or right of property in the street, the lot owner’s action therefor will not-be barred until the usurpation has continued for a length of time necessary to create a right by prescription, which in Ohio is twenty-one years. But if that which is done be not continuous in its nature or effect, but merely occasional or intermittent, causing specific damage, then each of said acts is a distinct and separate trespass, and an action therefor should be brought within four years. The latter is a mere tort, while the former is the assertion, by disseizin, of title to an incorporeal hereditament belonging to the lot owner. This distinction exists in the present case.”
    And we think that the raising of the grade and requiring a change in, and a modification of the plaintiff’s buildings, thereby increasing the servitude, or — putting it the other way — affecting the plaintiff’s easement in the street, was the thing referred to by Judge McCauley when he spoke of the relative level of the property of the plaintiff and the railroad company being broken up and destroyed, and permanent changes and improvements in the buildings of the plaintiff being made necessary.
    This made a ease of permanent modification of an easement or right of property in a street, a usurpation that would ripen into a right of property in twenty-one years. Therefore, any act tending to the establishment of such permanent right was an act calculated to create permanent injury. The permanent injury referred to is the imposition of a continuing and permanent burden upon the estate of the plaintiff, in the. nature of an easemént on the one hand and a servitude on the other.
    In any case where the permanency of such a burden will be fixed by a judgment, and the plaintiff obtains satisfaction therefor, as in appropriation proceedings, or suit for full compensation for property taken, it is manifest that the damages resulting therefrom' should be taken into account; but where the rights of parties are not to be thus fixed and determined, as in a suit for damages for trespass, it is not apparent to us that such .damages should be allowed to the plaintiff. This principle was recognized by the court in the ease at bar when it limited the plaintiff’s right of recovery for such alleged invasion of her right, amounting to an exercise of an easement, to the temporary effect — that is, the effect upon the rental value of the premises. Manifestly, this is right; otherwise the plaintiff might recover full compensation for a permanent injury resulting from the assertion of an easement or permanent right, and then sue for and recover damages again and again for resulting temporary injuries, or even enjoin the exercise of the right acquired by the full compensation awarded for permanent injuries. This rule is stated in the fourth clause of the syllabus in the ease of Mansfield v. Sunt, supra:
    “When the nuisance complained of is of such a character as can be removed by removing the cause thereof, or for the continuance of which a second or third action may be maintained, or which may be abated by the order of a competent court, and the injury to the premises already inflicted is not of a permanent nature, the rule that, in actions for nuisance, the measure of damages is the difference between the market value of the land before and after the occurrence of the injury, is not the rule for assessing damages.”
    When it is said in Little Miami By. v. Sambleton, supra, that the plaintiff may recover for permanent injury to his property, resulting from a change of grade, or for the additional track, at any time before the right to maintain the raised grade and the additional track was complete — that is, at any time before twenty-one years adverse exercise of the right — we do not understand that anything more is meant than that as to such continuing trespass and continuing and permanent results, the four years statute shall not apply, even though the initial step and successive steps of such wrongdoing occurred long prior to such four years period; that the trespass being of a continuing nature, so long as it was continued there was constantly arising a fresh wrong and fresh damage from such continuation of the act.
    By the statute the limitation is the same — that is, four years — whether the injury from trepass is temporary or permanent ; but in the case of permanent injury resulting and flowing continuously from a continuing trespass, the act causing the injury is necessarily of such a nature that the four years limitation has no effect upon it or its results so long as the trespass is continued, except to limit the recovery to damages resulting within four years of the bringing of suit.
    This is illustrated by the ease of Valley By. v. Franz, 43 Ohio St., 623. A question was presented in that case as to the statute of limitations. A stream was diverted and its course was so changed — wrongfully, as claimed by the plaintiff below —that it washed the banks of his land to his injury. ITe brought an action against the railroad company for this wrong. It appeared from his petition that the diversion of this stream had occurred more than four years before the action was begun, and the railroad company interposed by.demurrer the bar of this statute. It was also disclosed by the petition that the washing was continuous, because the diverted stream or current was continuous in its flow; and the court treats it as a continuing trespass, and the injury as a continuing injury. I read the syllabus:

      “A railway company, like an individual, may, on its own land and for its own benefit, lawfully cut a new channel * * * * if thereby no damage is caused to, another; but when it so controls and directs the course of the stream that, as the stream leaves the company’s premises and control, the water is thus thrown across the old channel and against and upon the land of another, and thereby causes damage to such .other; the company is liable for such damage; and while the company, after thus causing great damage, and promising to repair the damage done and stop future damage, continues so to control and direct the stream, and the stream continues to cause additional damage, the company becomes liable for the additional damage, and will continue so to become liable until the company acquires a right to cause such damage; and, until such right is acquired by the company, the four years statute of limitations will not bar a proper recovery for damages.”
    In the course of the opinion by Judge Follett some illustrations are given from other cases and decisions that I will quote, pages 625, 626:
    “When a man commits an act of trespass upon another’s land, and thereby injures such other at once and to the full extent that such act will ever injure him, he is liable at once for this one act and all its effects; and the time of the statute of limitations runs from the time of such act of trespass. To this extent only is the case of Kansas Pacific By. v.. MiKlman, 17 Kan., 224, cited here, as the court found that the trespass upon complainant’s land was a single completed act. And the same is true of the case of Williams v. Coal Go., 37 Ohio St., 583.
    “But where the act of trespass is a permanent trespass, as the erection of buttresses to support a turnpike road (as in
      Holmes v. Wilson, 10 Ad. & El., 503), or the erection and maintenance of a permanent btiilding (as in Thompson v. Gibson, 7 M. & W., 456), it may be said to be a continuing trespass or nuisance for which a cause of action accrues, and may be brought at any time until, by adverse use or possession, the trespasser has' enforced an adverse claim that has ripened, and has become a presumptive right or a valid estate. ‘Where the trustees of a turnpike road built buttresses to support it on the land of A, and A thereupon sued them and their workmen in trespass for such erection, and accepted money paid into court in full satisfaction of the trespass — Held: That after notice to defendants to remove the buttresses, and a refusal to do so, A might bring another action of trespass against them for keeping and continuing the buttresses on the land, to which the former recovery was no bar.’ Holmes v. Wilson, supra.

      “ ‘The defendants were liable for continuing the nuisance, although they had no right to enter upon the land to remove it, and that the action was therefore maintainable.’ Thompson v.’ Gibson, supra.

    “An owner of land can rightly do, on his own land, any act that does not interfere with another’s rights; and such act is not illegal. But whenever such act causes injury to another, such owner is liable for the damage so caused, and the cause of ¿etion accrues at the time of such damage, and not before.
    “And when the owner of land rightly and lawfully does an act entirely on his OAvn land, and by means of such act puts in action, or directs a force against, or upon, or that affects another’s land, without such other’s consent or permission, such OAvner and actor is liable to such other for the damages thereby so caused the latter, and at once a cause of action accrues for such damages; and such force, if so continued, is continued by thii act of such OAvner and actor, and it may be regarded as a continuing trespass or nuisance; and each additional damage thereby caused is caused by him and is an additional cause of action.; and until such continued trespass or nuisance by adverse use ripens into and becomes a presumptive right and estate in the former, the latter may bring his action.”
    It is a cause of action that arises at the time the injury is done. It is, hoAArever, subject to the rule that suit upon it must be brought within four years of the time the cause of action accrues. The cause of action does not come under the tAventyone years statute. It is not an action Tor the recovery of compensation for land, but it is an action for recovery on account of injury to land; which cause of action may accrue and be enforced at any time before the right is taken away by the twenty-one years limitation, the particular claim for damages being subject also to the four years limitation; i. a., such damages must have been sustained within four years.
    I quote further from this case, page 628:
    “In Whiiehouse v. Fellows, 100 Eng. C. L., 765, the court held: ‘If the cause of action be, not the doing of the thing, but the resulting of damage only,- the period of limitation is to be computed from the time when the plaintiff sustained the injury.’ ”
    There are more illustrations to be found in this opinion. We regard it as significant that Valley By. v. Franz, supra, decided by the Supreme Court in 1885, takes no account or notice of the case of Little Miami By. v. Hambleion, supra, decided by the Supreme Court Commission in 1884. If the Supreme Court had understood the rule to be as the court below in the ease at bar, relying upon this earlier authority, seemed to understand it, it need not have pursued this course of reasoning nor cited these authorities to show that the plaintiff’s cause of action was not barred, -but might have followed the earlier case. The diversion of the stream was on November 4, 1874, and the action was commenced on August 27, 1881, a period of nearly seven years. The court might have said at once that under the authority of the case of Little Miami By. v. Llambleton, supra, since the washing away of .the banks and the taking away of the soil was a permanent injury to the premises, the twenty-one years .statute of limitations applied; but there is no such suggestion in the case. The petition is sustained upon the ground that it is a continuing trespass, and that the injury by the washing away of the banks occurred within the four years period.
    An injury that is transient, like that of a flood — here to-day and gone tomorrow, doing damage for a time to the soil, or creating bad odors that do not endure, or are not constant— the effect of which disappears with the cause, and the future recurrence of which, may be prevented by the cessation of the trespass of nuisance, so long at least as the right to continue the same has not accrued, may be regarded as in a sense a temporary injury.
    It is conceded that ordinarily it is only temporary effects of this character that can be taken into account further back than four years from the bringing of the suit. But here we have the washing away of the banks, and the widening of the channel, and the destruction of bridges, classed by the court below as permanent injuries, on account of which plaintiff may go back any time short of twenty-one years. They are permanent in the sense that, in measuring the damages, the lessened value of the real estate is to be considered, because these thing are not restored by the cessation of the trespass or the nuisance; but is the fact that they are not so restored a criterion for determining their permanency, in the sense that the term is applied in Little Miami By. v. Hambleton, supra, in giving effect to the statute of limitations ? We think not. If it were so, why should not the limitation for permanent injuries in all cases of trespass be fixed at twenty-one years? Why apply it to cases of continuing trepass? What authority can be found in the statute for this distinction? We can find none whatever. If applicable to such cases, what rule could be applied where a trespass has been continued for twenty years and then discontinued so that it is no longer a continuing trespass, and where an action is brought by the person injured for such injuries as the taking away of a bridge, or the taking away of a part of the soil, or the chopping down of his fruit trees, or shade trees, or the like, occurring twenty years before the action is planted?
    If the nature of the trespass, as being continuing, has the effect of modifying the statute of limitations, making the twenty-one years statute apply, rather than the four years statute, then it should apply, we think, as well to the case where the trespass is discontinued before suit as to a ease where it is continued up to the time suit is brought. The discontinuing of the trespass can not have the effect of instantly bringing a different statute of limitation into operation upon the cause of action already accrued.

      If I go to a neighbor’s land and move away or destroy his bridge, or take away a part of his soil, doing it forcibly — a simple ordinary trespass — of course it is entirely clear that, notwithstanding the permanency of that injury, in the sense that my ceasing from my depredation will not restore the property, the cause of action would be barred in four years. If 1 should flood his land and continue to flood it from day to day, or from year to year, trespassing in the manner that is called a continuing trespass, what authority can be found in the statutes for saying that the same rule of limitation upon an action for trespass shall not apply^ The statute covers all actions of trespass of all sorts, natures and kinds.
    Holding this view of the matter, we conclude that the court erred in refusing to charge as requested upon the subject of the statute of limitations, and in charging as it did.
    There was one other request to charge that we think was in harmony with the law as we laid it down in the case of the shade trees, which has been before this court some two or three times:
    “You are not permitted to arrive at values or conclusions in the absence of evidence either direct or circumstantial. If you are entirely unable to separate and distinguish, under the evidence and the reasonable inference to be drawn therefrom, the extent of, and damage from, the claimed washing of the banks of the stream in question, caused by flood water which would drain through said stream during freshets without regard to any claimed act of the defendant, from the washing, if any, caused by the claimed acts of the city of Norwalk, you should not consider that element. The law will not permit a jury to arrive at a conclusion from mere conjecture or guess.”
    We think that is good law and should have been given. Because of the error pointed out, the judgment of the court of common pleas will be reversed.

      Sherman Gulp and S. M. Young, for plaintiff in error.

      E. G. Marlin and A. V. Andrews, for defendant in error


text:
    STATUS OF PURCHASER. OF STOCK ISSUED BY CONSTITUENT COMPANY AFTER CONSOLIDATION.
    [Circuit Court of Cuyahoga County.]
    George H. Worthington v. Cleveland City Railway.

    Decided, July 13, 1904.

      Evidence — •Admissibility of Personal Declarations of Agent Against the Principal — Corporations—Stock Issued by a Constituent Company After Consolidation Spurious — Principal not an Innocent Bona Fide Purchaser of Stock — When Facts Known to His Agent Should Put Him on Inquiry.

    1. Declarations by an agent are not admissible against the principal unless made in performance of the business of the principal; and when the transfer agent of a consolidated company, to secure a personal loan for himself or interests which he represents, transfers stock in one of the constituent companies and promises to exchange such shares for shares in the consolidated corporation, such promise is not admissible against the consolidated corporation in an action to compel such exchange.
    2. Stock Issued by a company after its consolidation with another company has been completed is spurious; and one who was a shareholder in one of the constituent companies and had his stock transferred into the stock of the consolidated company is presumed to be acquainted with all the facts, and when acting as agent for another he obtains stock which is spurious because issued after consolidation and the surrender of the charter of the issuing company, his principal can not be held to be an innocent bona fide purchaser of such stock.
    W. W. Boynton, for plaintiff,
    contended that a constituent company remains in existence with the right to transfer stock from one owner to another, until floating indebtedness is paid off, although the consolidated company is organized and in operation as a railroad company. Compton v. Railway, 45 Ohio St., 592; Railway v. Garrett, 50 Ohio St., 405; Cincinnati, N. 0. & T. P. Ry. v. Bank, 56 Ohio St., 351; Edison Elec. Light Co. v. Electric Co., 35 Fed. Rep. 233; Buell v. Railway, 57 N. Y. Stipp., Ill; In re Utica Nat. Brew. Go., 154 N. Y., 268; Bishop v. Bra/inerd, 28 Conn., 289; Chicago, 8. F. & G. By. v. Ashling, 160 111., 373; 10 Cyc., 302; Noyes, Intercorporate Re, lations, Secs. 58, 59, 62; Killiwell, Stock & Stockholders, 383.
    As to transfer agent’s duties, and liability of the consolidated company for his false representations, there was cited: Gris-wold v. Haven, 25 N. Y., 595 (82 Am. Dec., 380); New York <& N. II. By. v. Schuyler, 34 N. Y., 30; Farmers & M. Bank v. Bank, 16 N. Y., 125 (69 Am. Dec., 603); Armour v. Bailway, 65 N. Y., Ill (22 Am. Rep., 603); Parker v. Saratoga Co. (Supvrs.), 306 N. Y., 392; Bailway v. Bank, 56 Ohio St., 351; Combes v. Chandler, 33 Ohio St., 178; McNeil v. Bank, 46 N. Y., 325 (7 Am. Rep., 341); Moore v. Bank, 55 N .Y., 41 (14 Am. Rep., 173); Pomeroy, Leg. Rem., 156-163; Citizens’ Sav. Bank v. Blakesley, 42 Ohio St., 645; Pittsburg, C., G. c& Si. L. By. v. Lyncle, 55 Ohio St., 23; Stranaham Bros. Catering Co. v. Coil, 55 Ohio St., 398; Cincinnati, N. O. c& T. P. By. v. Bank, 56 Ohio St., 351; Liekbarrow v. Mason, 2 Term, 63; North Biver Bank v. Aymar, 3 Hill (N. Y.), 262; Bank of Batavia v. Railway, 106 N. Y., 195; Bridgeport Bank v. Railway, 30 Conn., 231; Mechem, Agency, Section 739; Story, Agency, Section 452; Beach, Priv. Corp., Section 488; Story, Partnership, par. 108.
    In application of the rule of ecpxitablc estoppel, that where one of two innocent persons must suffer from the wrongful act of another, he must bear the loss that placed it in the power of such other to do the wrong. McKenzie v. Steele, 18 Ohio St., 38; Citizens’ Sav. Bank v. Blakesley, 42 Ohio St., 645; 'Ensel v. Levy, 46 Ohio St., 255; Pittsburg, G., C. & St. L. By. v. Lynde, 55 Ohio St., 23; Schuriz v.- Calvin, 55 Ohio St., 274; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St., 398; Cincinnati, N. O. c& T. P. By. v. Bank, 56 Ohio St., 351; Dezell v. Odell, 3 Hill (N Y.), 215; Griswold v. Haven, 25 N. Y., 595 (82 Am. Dec., 380); Farmers c6 M. Bank v. Bank, 16 N. Y., 125 (69 Am. Dec., 678); Neto York c& N. II. By. v. Schuyler, 34 N. Y:, 30; Continental Nal. Bank v. Bank, 50 N. Y., 575; Titus v. Turnpike B.oad, 61 N. Y., 237; People v. Bank, 75 N. Y., 547;
      Fifth Ave. Bank v. Railway, 137 N. Y., 231; Allen v. Railway, 150 Mass., 200; 11 Am. & Eng. Enc. Law (2d Ed.), 422.
    Laubie, J. (sitting in place of Hale, J.) ; Marvin J., and Winci-i, J., concur.
    Appeal from Cuyahoga Common Picas Court.
    The case of George II. Worthington against the' Cleveland City Railway Company is here on appeal. The action is for the purpose cf compelling the defendant to issue a number of shares of stock to the plaintiff in exchange for stock of the Cleveland City Cable Company, or, if the court finds that that can not be ordered done, he asks for judgment for the value of the stock which he" claims to hold.
    The claim is based upon the fact that the Woodland Avenue & West Side Railroad Company and the Cleveland City Cable Company had consolidated in 1893, and that provision was made by which shares in certain proportion were to be issued to the stockholders of each company by the consolidated company in exchange for the stock of the constitutent companies; that after the consolidation the plaintiff obtained these certificates or shares of -stock in the cable company from John J. Shipherd, as security upon certain bonds-that he had loaned to John J. Shipherd, .doing business under the name of Charles H. Potter & Company, and who was also the transfer agent of the consolidated company, defendant; and that he is entitled, therefore, to have the stock cf this constitutent company transferred into shares of stock of the consolidated company.
    It seems to be assumed on both sides, and, indeed the action of the plaintiff is founded upon the assumption, that this consolidation was authorized by, and subject to, the conditions of Section 3384, Revised Statutes, which provides for the consolidation of railroad companies, and we, therefore, assume the same.
    Now,. the plaintiff does net seek such relief, or to recover by reason of any act done by John J. Shipherd for the defendant as its transfer agent, but upon declarations' he made at the time he delivered such stock certificates to plaintiff. Shipherd, as
      the transfer agent, was authorized, when the question as to the amount of stock that a stockholder in the Cleveland City Cable Company was to receive, and the amount of money he was to pay had been determined by the board, to accept and cancel the stock of the Cleveland City Cable Company, and to issue to the stockholder the requisite number of shares of the stock of the Consolidated Company to which he was entitled, and blank certificates of stock, signed by the proper officers, were in his possession. The facts are as follows:
    Worthington was loaning to Shipherd certain bonds of the Columbus City Railroad Company for the purpose of aiding that company in the discharge of its floating debt, Shipherd being the president of that company; and, 'as security therefor, and for the return of these bonds, Shipherd delivered to him these certificates of stock in the Cleveland City Cable Company — stock which apparently, on its face, belonged to John J. Shipherd himself, and'which the defendant claims was spurious. Mr. Worthington did not himself make this contract, but he did it through Mr. Painter. Painter testifies that when this stock was offered to him as security he objected; that he asked Shipherd to transfer it into stock of the Cleveland City Railway Company, the defendant, and that Mr. Shipherd said, no, he could/not do that because lie didn’t have the money required to pay his proportionate share of the floating debt of that company, referring to the terms of the contract of consolidation which provided that each stockholder -of the cable company was to stand his proportionate share of the floating debt of that company, which was to be paid before he could receive his proportionate shares of stock in the new company, and said to Painter, “you take the stock and you can pay it, and I will issue to you the stock of the new company in lieu thereof,” or words to that effect. Relying on this promise, Painter took the stock of the cable company for Mr. Worthington as security for the bonds loaned to Shipherd in the name of Charles II. Potter & Company.
    It is clear, therefore, that the transfer agent, Shipherd, was not performing or doing any act for either of these companies; he was simply acting for himself in his individual capacity and for his personal benefit, or for the benefit of the company that he represented, located in Columbus, and how can the Cleveland City Railway Company, the defendant, be responsible for that declaration, and be compelled to issue stock in lieu of such cable company stock, or to pay its value? Under what circumstances would the declaration of Mr. Shipherd as its transfer agent bind the defendant company?
    It would only bind the company in ease he was acting for it, so as to constitute the declaration a part of the res gestae— a part of the act itself. This rule is stated in che brief of the eminent counsel for the plaintiff in this case. In his brief he refers to the case of Union Gent. Life Ins. Go. v. Gheever, 36 Ohio St., 201, 208, and to the opinion delivered by himself while he was a distinguished member of the Supreme Court of this state, as follows: ■ --
    ‘‘It is because the declaration of an agent is a verbal act and part of the res gestae, that it is admissible, and whenever what he did is admitted in evidence then it is competent to prove what he said about the act while he was doing it.”
    In that case it was held that Cheever was not acting for his wife at the time he made the declaration, and, therefore, his declaration did not bind her and was not admissible against her. Well, let us apply that rule here. What was Shipherd doing for the defendant company? If he was acting solely for himself, endeavoring to make a contract with Worthington for his owrn benefit, or the benefit of the Columbus City Railroad Company, howr is his declaration a part of the res gestae of any act done for the defendant, and admissible against it? ITe must have been acting for the defendant at the time, doing some act for it, transacting its business, or his declarations are not admissible against it. The universal rule is, the declarations of an agent are only admissible against the principal when made in performing the business of the principal, or professing to act for the principal in the doing of some act within the apparent scope of his authority.
    Now, in this case, Mr. Worthington, or Mr. Painter, as representing him, did not go to either the office of the defendant or the agent of the defendant for the purpose of obtaining information upon which he might rely in the making of a contract with some third party in regard to this stock. He went to find John J. Shipherd, who in the contract, as appears from the testimony, represented the Columbus City Railway Company, if he represented anyone but himself, for the purpose cf loaning to Shipherd, or to the Columbus City Railway Company, these bonds, and receive in security therefor whatever Mr. Ship-herd might offer. Shipherd offered stock of another company first, and subsequently offered this stock of the Cleveland City Cable Railway Company, and this declaration was made simply to induce Mr. Painter to enter into a personal contract with him,' John J. Shipherd.
    That declaration therefore is not ■ admissible as testimony against the defendant, as it had no relation to any act that Shipherd was performing for the defendant, and could not be any part of the res gestae of an act done for the defendant.
    But aside from this there is still another complete objection to plaintiff’s action. In cases where the declaration of an agent is sought to be used to bind a principal, it can only be used in favor c-f an innocent bona fide party cr purchaser. Was Worthington of that character of person or party? He -was chargeable with whatever knowledge the party to whom he turned ever his business to transact for him had — chargeable with whatever knowledge Mr. Painter had, who was to transact the business for him, whom he authorized to loan the bonds and to select and approve the security. Was he, therefore, a bona fide innocent party ?
    Under such circumstances a purchaser is not an innocent bona 'fide party entitled to rely upon statements made, when the facts known to liis agent would put him upon inquiry, and still more so, if such facts would make it apparent that the stock offered to him was spurious. How was it in this case? Painter, had knowledge of all the conditions surrounding the transaction; he not only knew that the consolidation had taken place in June, 1893, and was perfected by the election of directors in January, 1894 — he not only knew that — but he was , a stockholder of one of the constituent companies the Woodland Avenue & West Side Company, and he had had his stock transferred immediately after the consolidation. lie knew all the circumstances and the conditions of this contract of consolidation. He knew when the directors were elected; he was a stockholder in the new company at that time, and undoubtedly voted at such election. He is chargeable with all the knowledge which the law would give him, of the effect of such consolidation; and plaintiff can not escape that, as the knowledge of such an agent is imputed to his principal.
    Now, what wTas the effect of the consolidation? Counsel on both sides refer to Section 3384, Revised Statutes, which all parties agree and claim applies to and governs the consolidation of street railroads, and it provides:
    '“’Upon the election of the first beard of directors of the company created by the agreement of consolidation, all and singular, the rights, privileges, and franchises of each of the companies to' the agreement, and all the property, real, personal and mixed, and debts due on account of subscriptinos of stock, or other things in action, shall be deemed to be transferred to and vested in such new company, without further act or deed; all property, rights of way, and other interests, shall be as effectually the property of the new company' as they were of the companies parties to the agreement; the title to real estate, either by deed, gift, grant, or by appropriations under the laws of this state, shall not be deemed to revert or be impaired by reason of the consolidation; but all rights of creditors, and all liens upon the property of either of such companies, shall be preserved unimpaired, and the respective companies may be deemed to be in existence to preserve the same.”
    It is only, therefore, as to creditors that the constituent companies remain alive. The rights, privileges and franchises of each were transferred to, and vested in, the consolidated or new company, and consequently were forever gone from those constituent companies, and the constituent companies remained in existence only so far as their creditors were concerned, and to preserve unimpaired liens upon their property.
    In State v. Sherman, 22 Ohio St., 412, it was held, in the third head of the syllabus:

      “Where a corporation, in pursuance of an act of the Legislature, transfers or conveys its franchise to be a corporation to others, the transaction, in legal effect, is a surrender or abandonment of its charter by the corporation, and a grant by the Legislature of a similar charter to the transferees or purchasers; and the charter so granted is subject to all the provisions of the constitution existing at the time it is so granted.”
    So that beyond doubt, when the first board of directors of the new company was elected and installed, from that moment every right, power, privilege and franchise of the constituent companies was abandoned, and their charters surrendered to the new company, and their existence terminated, save only so far as the rights of creditors .were concerned.
    Mr. Worthington, through his agent, therefore, knew that the cable company had transferred and surrendered its charter and corporate power in Janliary, 1894, and from that time on, the power to issue stock by the Cleveland City Cable Company had been surrendered and transferred along with all of its other franchises to the consolidated company. 'Yet, through Mr. Painter, he received certificates of stock which he now seeks to enforce against this defendant company, that purport on their face to have been issued by the Cleveland City Cable Company to John J. Shipherd from a year to a year and a half after the election of this board of directors, and after the surrender of its franchise and powers and rights to the new company
    Upon the face of these certificates, therefore, it was apparent that the stock was spurious. What inquiry did ho make in regard to it? All the inquiry Painter testified he made, was to go to a certain bank to find out whether the bank had received some of the Cleveland City Cable Company stock as security, and finding that the bank had taken some stock of that company as security, he took this. He never even asked Shipherd, “How does it come, Mr. Shipherd, that, a year and a half after this consolidation and election of directors, this cable company can issue stock? Of this stock you are offering me, one part is dated January, 1895, and the other along in October and November, 1895, from a year to a year and ahalf after the election of these directors — how does it come that it issued this stock? ITow is that valid?” lie made no inquiry in that regard. All he did, was to inquire at some bank if it had received as collateral, stock of the cable company. Plaintiff was not, therefore, an innocent and bona ficle purchaser. .
    For these reasons, the judgment will be in favor of the defendant, and the petition of the plaintiff dismissed.

      W. W. Boynton, for plaintiff.

      Squire, Sanders c6 Dempsey, for defendant.

       Affirmed by the Supreme Court without report, Worthington v. Railway, 75 Ohio State, -.


text:
    PREMIUMS PAID BY INFANT ON LIFE INSURANCE POLICY RECOVERABLE.
    [Circuit Court of Portage County.]
    The Prudential Insurance Company of America v. Frank R. Fuller, a Minor, by J. C. Yeend, His Duly Appointed Guardian.
    Decided, February Term, 1907.

      Life Insurance — Repudiation by Minor of Contract for — Action for Recovery of Premiums Paid — Others Minors Having an Interest in a Voidable Contract not Necessary Parties — Misjoinder of Causes of Action — Infants—Vested Rights of Beneficiaries.

    Upon repudiating his contract of life insurance and surrendering to the company its policy therefor an infant may recover the ■whole amount of premiums paid by him thereon.
    Mr. Arthur S. Mottinger contended in his brief for plaintiff in error—
    (1) That the beneficiaries named in the several policies of insurance are necessary parties plaintiff; that if the infant Fuller is permitted to repudiate his contract of insurance and sue to recover the premiums paid, then the beneficiaries named in the separate insurance policies are necessary parties to the suit before a recovery of the premiums paid can be had by the infant and the contractual relations between the insured and insurer canceled, in order to release the insurance company from any future liability to the beneficiary; that the rights of a beneficiary in a policy of insurance and the amount to be paid at the death of the insured are vested rights upon the taking effect of the policy and that these rights can not bo defeated by the separate or combined acts of the insured and insurance company without the consent of the beneficiary. Holland, Guardian, v. Taylor, 111 Ind., 121; Trabendt v. Connecticut Mutual Life Ins. Co., 131 Mass., 36,7; North American Life Ins. Co. v. Wilson, 111 Mass., 542; Joyce on Insurance, Section 730; Manhattan Life Insurance Co. v. Smith, 44 O. S., 156; Gass v. U. S. Life Ins. Co., 3 Ohio Nisi Prius, 216; Connecticut Mutual Life Insurance Co. v. Luchsn, 108 U. S., 498; Aetna Life Ins. Co, v. France, 94 U. S., 562; Bliss on Insurance, Chapter 10, page 517; Glanz v. Gloeclar, 104 111., 573; Hume v. Central Bank of Washington, 128 U. S., 195; Bacon on Life Insurance, Section 292; Aetna Life Insurance Co. v. Benn, Nisi Prius and General Term Reports, 1C Dee., 275; Vance on Insurance, page 390.
    (2) That there is a misjoinder oh parties plaintiff (if the beneficiaries are necessary parties) and of causes of action. Inasmuch as there are different policies of insurance taken at different periods of time, and upon the lives of different persons, and the beneficiaries named in the different policies are different persons, that suit upon these different policies must be brought separately. It was further contended that the several contracts of insurance sued upon did not grow out of the same transaction, are not connected with the same subject of action, and do not affect all the parties who should be joined in the action. Section 4993, R. S.
    (3) As to the minor’s right to rescind a contract of insurance and recover premiums paid, it was contended that even a minor, before he can rescind a contract, which as to him might be voidable, must so far as in his power lies put the opposing party in statuo quo; that before a recovery can be had, in any event, in this case the plaintiff must tender back all he and the beneficiaries received under the policies and he.must also relieve and release the insurance company from all liability upon his part and upon the part of the beneficiaries. Kent. Com., Yol. 2, page 240; Bishop on Contracts, paragraph 921; 22 of Cyc, 617; Robinson v. Weeks, 56 Me., 3.02; Heath v. Stevens, 48 N. IT., 251; Adams v. Beall, 67 Md., 53; Chilly on Contracts, Yol. 1, page 222; Rice v. Butler, 160 N. Y., 578; 16 Am. & Eng. Enc. of Law, 2d Editiou, 295 and 296; 21 of Mo., 404; 15 of Gray, 445;
      Chicago Mutual Life Indemnity Ass’n et al v. Hunt, 127 111., 257; Johnson v. Nor thu: estern Mutual Life Ins. Co., 56 Minn., 372; 59 North Western Reporter, 992.
    Mr. W. J. Beekley, for the minor, addressed himself to the question, “Can a minor recover for monies paid upon life insurance policies?
    Life insurance is not a necessary and the minor may repudiate the contract and recover back the monies paid, even though the contract has been executed. Page on Contracts, Yol. 2, page 1340, paragraph 866; also page 1344; Simpson v. 'Prudential Insiorance Company, 184 Mass., 348; 68 N. E. Reporter, page 673; 100 American State Reports, 560, and notes.
    Fire insurance is not a necessary for which a minor can make a valid contract. Page on Contracts, 1343. See also 16th American & English Enc. of Laiu, 2d Edition, page 276.
    We concede that the contracts of minors, as a rule, are only voidable in Ohio. Ilarner v. Hippie, 31 O. S., 72; Bush v. Wait, 31 O. S., 521.
    The minor must return such of the property as he may have in his possession or under his control, but if the same has been lost or taken from said minor, or is of such a character that it can not be restored in kind, he may still dis-affirm the contract and recover back the consideration paid by him without making restitution. Lemmon v. Beeman, 45 O. S., 505. See opinion of court, page 509; MacQreul v. Taylor, 167 II. S., 689.
    In this case the minor has deposited in court the insurance policies and made all the restitution that it was within his power to make.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Error to Portage Common Pleas Court.
    Frank R. Fuller, a minor eighteen years of ago, took out several policies of insurance in the plaintiff company, he paying all the premiums; some of them were upon his own life for the benefit of his brothers and sisters, who were also minors younger than himself, and some of them upon the lives of his brothers and sisters, for his own benefit. His father and mother were dead, and, being the eldest child, looked after the interests of his brothers and sisters.

      Young Fuller, becoming dissatisfied with his contract of insurance, repudiated the same, and demanded of the company that it pay back to him the amount of premiums that he had paid running over a period of about three years and amounting to one hundred dollars, on the ground that he was a minor when he made the contract and paid the premiums. This the company refused to do. No fraud is claimed.
    The principal errors assigned are, that the court erred in overruling the demurrer to the petition and in directing a verdict for plaintiff below for the full amount of his claim. These grounds of error raise but the one question and that is: May a minor repudiate his contract of insurance and recover back the premiums paid and, if so, must he deduct the expenses incurre! for carrying the risk during the time the insurance continued before such repudiation?
    It should be stated that plaintiff below tendered back to the insurance company all the policies of insurance issued and deposited the same in court for its benefit.
    The first claim made on behalf of the company is that the brothers and sisters having an interest in the contract and policies, or at least in some of them, and not being parties to the action, the contract can not be repudiated and the policies canceled, in this action or in any action without their consent.
    It is no doubt true that generally the beneficiary has a vested interest and that nothing can be done to prejudice such interest without the consent of the beneficiary, except in case where the policy or the rules of the company provide Otherwise. But that principle does not apply to a case of this character. These bene-, fieiaries are mere volunteers. They paid nothing. They and the company knew that the contract was voidable at the option of the minor at any time before or at the time he attained his majority. The claim of the plaintiff in error that the company is still liable to these beneficiaries after the repudiation by the minor making the contract is therefore, we think, wholly untenable. Counsel in their exhaustive brief have furnished us no authority to that effect and the claim is against principle and reason. Furthermore the guardian has tendered to the company hfl of the policies and deposited them in court for the company, presumably with tbe consent of tlie beneficiaries, so far as the beneficiaries, who are all minors, could give their consent.
    It is again claimed that the company, in the absence of fraud, has a right to retain from the amount of premiums paid by the infant the necessary expense of carrying the risks and that the plaintiff below is only entitled to the excess; and this claim has some support in the adjudicated cases.
    The solution of the question turns on what are the rights' of the* infant who has lost or squandered what he has received as the consideration for his contract. Must he return what he has not the power to return, or must he .permit the other contracting party to retain that which has proved of no benefit to him or has been wasted? If so, the shield of infancy would be of little value.
    This claim is no doubt in accord with the English rule and ' has some countenance in the decisions of some of the states.
    The case of Johnson v. Northwestern Mutual Life Insurance Company, 56 Minn., 365 (59 N. W. R., 992), is the leading case holding to this rule. In that case it was held:
    “Where the personal contract of an infant is fair and reasonable and free from any fraud, overreaching, or undue influence by the other party, and has been wholly or partly executed on both sides so that the infant has enjoyed the benefits of it, but has parted with what he received; or the benefits received are of such a nature that he can not. restore them, he can not recover back what he has paid.”
    In accordance with that holding the infant in that case was ordered to account for the current annual risk assumed by the company under its policy.
    The case of Simpson v. Prudential Insurance Company of America, 184 Mass., 348, is directly in conflict with Johnson v. The Northwestern Mutual Life Insurance Company. In that case it was held:
    “1st. An infant may avoid a contract of life insurance and recover the money paid by him as premiums, however reasonable and prudent it may have been for him to take out the policy.
    “2. Tn this commonwealth an infant to avoid a contract is not obliged to put the other party in statu, quo. Thus an. infant may recover money paid by him as premiums under a policy of life insurance without any deduction for the expenses incurred by the insurer in keeping the policy in force. ’ ’
    In the opinion it is said:
    “The defendant contends that the contract having been executed in part at least, the plaintiff; can not recover without making the defendant whole for the expenses to which it has been subjected. But that would be compelling the plaintiff to carry out to that extent a contract which is not binding on her and which she may avoid. Morse v. Ely, 15 Mass., 458.”
    This decision seems to be in accord with the adjudications in most of the states. English & American Encyclopedia of Law, Vol. 16, page 293, where the decision are collated.
    The case of Lemmon v. Beeman, 45 O. S., 505, would seem also to be in accordance with the case of Simpson v. Prudential Insurance Company of America, supra, and, if so, is determinative.
    We might add that, while we have passed upon the question, it is doubtful if it is raised by the pleadings as the answer makes no claim for anything for the expenses of carrying the risks.
    Judgment affirmed.

      Arthur S. Mottinger, for plaintiff in error.
    TV. J. Becldey, for defendant in error.


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    NECESSITY FOR SUMMONS ON A PETITION IN ERROR..
    [Circuit Court of Crawford County.]
    Anna M. Andress v. Eliza Greenfelter, Guardian.
    Decided, September, 1906.

      Proceedings in Error — Issue of Summons Must Affirmatively Appear, When — Petition in Error may he Stricken from the Piles, Unless— Section 5032.
    Tbe filing of a petition in error with, praecipe within the four months’ limitation is not a sufficient compliance with Section 5032, unless summons actually issues; and where there was no summons issued and no service obtained within the four months, a motion to strike the petition in error from the files must be sustained.

      Norris, J.; I-Iurin, J., concurs.
    Error to Crawford Common Pleas Court.
    An action in error is a civil action. Under Section 5032, Revised Statutes, a civil action must be commenced by the tiling of the petition and causing summons to be issued thereon.
    A petition in error was filed in this court by the plaintiff in error, Anna M. Andress, to reverse the judgment of the court of common pleas of this county against her, which judgment is of the date of May 17, 1906.
    The petition in error was filed on July 17, 1906, accompanied by the requisite exhibits purporting to indicate the, error complained of, together with a praecipe for summons in error. This matter is submitted at this juncture upon motion to strike the petition in error from the files, on ground that no summons in error issued in this action. The issuing of the summons in the face of a motion to dismiss for want of summons must affirmatively appear.
    This motion we are compelled to sustain. Section 6713, Revised Statutes, makes provision for the manner in which proceedings to obtain review, etc., of a judgment shall be commenced. The action in error is instituted by filing the petition in error, upon which summons in error shall be issued and served unless issue .and service be waived as provided in Section 6714, Revised Statutes.
    ' Section 6723, Revised Statutes, by its provisions makes limitation for commencement of actions in error, with certain exceptions, which do not include the case at bar, to the period of four months next, after the rendition of the judgment complained of.
    Section 4987, Revised Statutes, gives definition as to what shall constitute 'the commencement of an action), which aa applied to the action at bar, there being no waiver nor issuing of service of summons, would relate to the date of the summons served on defendant in error. By the provisions of Section 4988, Revised Statutes, the attempt to commence the action is deemed equivalent to commencement thereof when the party diligently endeavors to procure service, and service actually follows within sixty days after the attempt. These sections are held to be applicable to actions in error equally and the same as to civil actions in which the impleaded issues of litigants are adjudged by courts upon the evidence.
    Under the holding in the case of Ball, cfi 0. By. v. Ambach, 55 Ohio St., 558, to bring a case within the saving clause of Section 4988, Revised Statutes, a summons must bo caused to be issued before the expiration of the statute of limitations governing the cause of action. In the case of Boss v. Willel, 54 Ohio St., 150, it is held that the provisions of Section 4988, Revised Statutes, are applicable by analogy to proceedings in •error.
    In this case the summons was not issued within four months after the judgment complained of, in which-actions in error may be commenced. So that the attempt to commence the action, which is complemented by the filing of the petition and causing summons to issue was not made. What the statute or Supreme Court means or what act it enjoins on a party by the expression -“causing summons to issue” or what the party must do other than file petition and praecipe we can not define nor intimate. Whether unreasonable or not it seems to be the law, that in order to commence or make the attempt to commence an action in error, a summons must be caused to be issued within four months next after the rendition of a judgment complained of. This has not been accomplished and the motion must be sustained. We have endeavored not to reach this conclusion. We are driven to it by the stress of the decisions of the Supreme Court, which hold in effect that though the party be without fault and though he exhaust every means at his command to cause summons to issue, if the fact remain that the summons be not issued within the period limited, no review can be had, and the pai’tv loses all rights which review of the case might secure or restore to him.

      W. J. Geer, for plaintiff in error.

      C. II. Henkel and J. W. McCarron, for defendant in error.


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    PARTITION SUPERSEDED BY PROCEEDINGS OF ADMINISTRATOR..
    [Circuit Court of Crawford County.]
    Frank P. Myers et al v. Margaret P. Myers et al.
    Decided, January Term, 1907.

      Administration of Estates — Partition—When Action for Partition may he Brought — When Order for Partition may he Taken — Hasty Action hy Heirs — How Administrator may Intervene — Section 5756 Construed.

    1. A suit in partition may be commenced by an heir at any time after the death of the ancestor, although no order for partition can be taken until after the expiration of one year from such ancestor’s death, unless the petition shall set forth and it be proved that all the debts and claims against the estate of such decedent have been paid or secured to be paid, or that the personal property of the decedent is sufficient to pay the same. Swihari v. Swihart, 7 C. C., 338, and Smith v. Montag, 32 Bull., 153, not followed.
    2. But, when the sale of the lands of such ancestor is necessary to pay debts of his estate, the filing of such suit in partition does not prevent the administrator from proceeding to sell the lands; and on filing his certificate from the probate court in accordance with Section 6173, Revised Statutes, in the court of common pleas where such partition suit is pending, he is entitled to an immediate order of sale, the necessity for such sale not being contested; and, without filing such certificate, he may appear in said partition suit and, on his cross-petition, obtain such order of sale withoht waiting for the expiration of the year from the ancestor’s death.
    3. The law favors the speedy and orderly settlement of estates, and an heir will not be suffered to interfere with such speedy and orderly settlement by a hasty suit in partition; but the partition suit, if commenced, will be superseded by and subject to the proceedings of the administrator on his cross-petition praying for the sale of lands to pay debts.
    ■ Hurin, J.; Norris, J., and. Donnelly, J., concur.
    Appeal from the Crawford Common Pleas Court.
    John G-. Myers died intestate November 16, 1905, seized of certain real estate. The administrator of his estate in the performance of his trust, discovered certain claims against the estate which he caused to be submitted to arbitrators in accordance with the provisions of Section 6093, Revised Statutes.
    While these proceedings were pending in the probate- court, certain of the heirs commenced proceedings in partition in the court of common pleas, making the administrator a defendant, and causing service of summons to be made upon him.
    This petition in partition was filed June 16, 1905. just seven months after the death of John G-. Myers. On June 23, 1905. the arbitrators made their report to the probate court finding the claims submitted to them to be valid claims against the estate to the amount of $3,000. On June 30, the administrator filed in the probate court a petition to sell lands to pay debts.
    Thereupon- the heirs who were plaintiffs in the partition case, appeared in the probate court and by answer to the administrator’s petition to sell lands set up the fact of the pending partition suit in the common pleas court as a bar to further proceedings in the probate court regarding the same lands. A demurrer to this answer was sustained by the probate court and a judgment rendered for the administrator and a sale of the land ordered.. No error was prosecuted to this judgment.
    Thereupon the administrator appeared in the common pleas court and by answer set up his order of sale obtained in the probate court as a bar to the action in partition. The common pleas court sustained a demurrer to this plea and ordered partition of the land. From this judgment the administrator appealed to this court.
    The first question arising is as to the right of the heirs to commence partition proceedings before the expiration of one year from the death of the ancestor.
    Section 5756 provides that—
    “Where the title to such estate came to such persons by descent or devise upon the death of an inhabitant of this state, a partition thereof shall not be ordered by the court within one year from the date of the death of such inhabitant unless the petition shall set forth and it be proved, that all of the debts and claims against the estate of such decedent have been paid or secured to be paid, or that the personal property of said deceased is sufficient to pay the same.”

      This statute has created much discussion. Its intent apparently was to prevent unseemly haste on the part of heirs in rushing into court and seeking a partition of an ancestor’s estate immediately after his decease.
    The circuit court of this circuit, per Seney, J. (Judge Day dissenting), rendered a decision in the case cf Siuihart v. Swihart, 7 C. C., 338, in which it was held that this statute, 5756, denies to the heir the right to commence such action within a year after the death of his ancestor.
    And in Smith v. Montag, 32 Bull., 153, Judge Hunt held to the same effect and said:
    “There can be no doubt but that the Legislature intended by this amendment to give the exclusive right to the administrator or executor for one year to sell the real estate to pay debts,” etc.
    But in the case of Fryman v. Fryman,. 9 C. C.,J)l,’the fifth circuit court took the. contrajTg-'Niew, and held that the státiúe meant simply what it saj.di'and’ no more, viz., that “a partition shall not be ordere¿L'within one year from the death of such inhabitant. ’ ’ s'

    After an elimination of all these decisions and of the statute in questiop'/ we are constrained to believe that the latter view is the cftirreet one and that, while a partition suit may be commenced at any time after the death of the ancestor, no order of partition can be taken until after one year from such death. Whatever, may have been the intention of the Legislature, it Jilas not gone farther than to prohibit the taking of the order for partition. It follows then, in the case at bar, that the suit in partition was properly pending at the time the administrator filed his petition in the probate court to sell lands to pay debts, and it appears that when he did so he had already been served with summons in the partition case and was therefore duly notified that such case was pending.
    In filing his petition in the probate court to sell lands to pay debts, the administrator appears to have strictly complied with the statutes 6136, et seq., and to have promptly and in strict conformity to the usual course in such cases, attempted to carry out the provisions of law for the subjection of the land to the debts of the intestate, simply pursuing the course of conduct which, by the commencement of the process of arbitration, he had started to follow before the filing of the suit in partition.
    But in so doing he appears to have overlooked the provisions of Sections 6173 and 6174, Revised Statutes, which provide another way for accomplishing the same result and apparently an exclusive way, by procuring from the probate court a certificate of the amount necessary to pay the indebtedness and expenses in addition to the assets, and filing this certificate with the court in which the proceedings for partition are pending.
    Section 6174 provides that such court shall, on motion of the administrator, order the amount named in such certificate to be paid over to the administrator out of the proceeds of the sale of the premises.
    The evident purpose of these sections of the statutes is to .¿iwrife a qufcl? and easy alnd-jnexpensive method for the payment of these debts without undifti\JLitigation; and to further insure the administrator against dangeN^of loss of the land as security for the payment of the debts oí'sfhe estate, it is in Section 6174 provided, that nothing therein ecbqtained shall be so construed as to prohibit any executor or admiil^strator from proceeding to sell land belonging to such estate tcKjay any debts, when the same has been sold on partition or otherwise, or the proceeds of such sales fully distributed. s
    And the Supreme Court has repeatedly held that the cMrts of the ancestor are liens on h-is lands indefeasible by any auction of the heirs or others in a partition case, and that an;k purchaser thereof, either by private purchase from the heirs or at a partition sale, takes said land cum onere. Faran v. Robinson, 17 O. S., 243; Doan v. Biteley, 49 0. S., 586; Lajferhj v. Shinn, 38, 0. S., 46; Sidener v. Hawes, 37 0. S., 532.
    It is thus evident that the administrator could have lost nothing but time by proceeding in the partition ease, for he was amply protected by statute.
    While it must seem an extraordinary thing for an heir of an estate, in process of administration and possibly insolvent, to step in and interrupt the orderly administration of the estate and, for his own purposes, choose his own forum for the determination of his own interests — another forum from that in which the administrator is properly and diligently acting — and while we do not say that such a course would be permissible, after the administrator has actually petitioned the probate court for an order to sell lands and that court has assumed jurisdiction, yet under the state of facts appearing in this case, such action by the heir seems to be expressly permitted to him by the law and the administrator is bound by the provisions of the statutes expressly providing for such an emergency. Sections 6173 and 6174.
    But was he obliged to Avait till the heir could at the end of a year take his order of partition? We think not.
    The law favors the speedy settlement of estates. While these statutes gave the administrator an assiiranee of ultimate funds to be derived from the sale of the land at the end of the year, if at that time the pleadings in the partition suit were ripe for the taking of the order of partition or sale, yet he was not bound to await the passing of the year before subjecting such lands to sale. It was his right and duty to proceed with such sale as soon as possible after discovering the necessity thereof.
    Having been brought into the partition case against his will, he had the right and it was .his duty to set up in that proceeding the necessity of a sale of the lands, and to ask and receive an order for such sale on his cross-petition.
    His right to sAich order supercedes the right of the heirs to an order of partition, and the action in partition must thenceforth proceed on his cross-petition, as a proceeding to sell laAids to pay debts, at least Amtil the debts which he represents are provided for (Lafferty v. Shinn, 38 O. S., 46) For if it should happen that the sale of all the lands was necessary in order to pay debts, there would be no lands left to partition among the heirs. And, under the statutes and decisions previously referred to, no order of partition could avail to prevent this sale of the hinds o:i his demand — the necessity of a sale to pay debts being undisputed — nor could a partition, had one actAially been made, and even though the lands had been resold to third parties, have prevented a sale of the same lands on his demand. No title conld have passed by an order of partition that would have been free from the claim of the administrator for debts of the estate. See Far an v. Robinson, Lafferty v. Shinn, and Sidener v. Halves, supra.

    The demurrer to the cross-petition of the administrator will-therefore be overruled; there will be a finding and decree in favor' of the administrator on his cross-petition and an order of sale on that cross-petition, appraisers appointed, execution awarded and cause remanded for execution and further proeedings.

      L. G. Feighner and Anson Wickham, for plaintiff.

      Scroggs & Monnett, Finley & Gallinger, Kennedy c& Kennedy and W. J. Schwenk, for defendant.


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    ORDERS NOT PREVENTING A JUDGMENT.
    [Circuit Court of Hamilton County.]
    The City of Cincinnati v. Florence Reimer and Briggs Cunningham.
    Decided, March, 1907.

      Final Order — Withdrawal of Juror with Leave to Amend — Section 6707 Applied — Error.
    The overruling of a motion by the defendant for judgment, accompanied by the withdrawal of a juror and continuance of the cause with leave to the plaintiff to amend his petition if he so desires, does not in effect determine the action and prevent a judgment, and is not a final order which may be vacated or modified by a proceeding in error.
    G-iffbn, J.; Swing, J., and Smith, J., concur.
    This original action was commenced by Florence Reimer against Briggs Cunningham and the City of Cincinnati to recover damages for a personal injury sustained by reason of the slippery condition of the sidewalk in front of Cunningham’s premises, which the defendants had, as averred, negligently suffered to become and continue to be covered with ice. At the conclusion of plaintiff’s testimony each defendant moved the court for judgment, which motion by Cunningham was granted and judgment rendered in his favor. The motion of the city was overruled; but the court of its own motion decided that the petition did not constitute a good cause of action against the city, and after withdrawing a juror continued the cause to enable the plaintiff to prepare an amended petition if she so desired.

      Held: No judgment against the city, nor final order within the meaning of Section 6707, Revised Statutes, was rendered by the court. It does not appear that any of the orders made ‘‘in effect determined -the action and prevented a judgment. ’’ The city may upon the final hearing of the cause succeed in its defense. The record therefore discloses no ground for a proceeding in error by the city, and its petition in error will be stricken from the files. Holbrook v. Connelly, 6 O. S., 199'; King v. Bell, 36 O. S., 460.

      City Solicitor, for plaintiff in error.

      Geo. W. Harding, for defendants in error.