text:
    PLACE OF TAXATION OF BONDS DEPOSITED WITH THE STATE TREASURER.
    [Circuit Court of Hamilton County.]
    Nelson A. Sims, as Treasurer, etc., v. Katherina E. Best et al.
    Decided, April, 1903.

      Foreign Corporation — Residence of, for Purposes of Taxation — Bonds of, on Deposit with State Treasurer.

    1. Bonds deposited by a corporation with the State Treasurer in Columbus, in accordance with statutory requirements, remain the property of the corporation, and are taxable in the county where the owner resides. 2. The resi'dénce'of a foreign' corporation,-having its principal office in a county of this state, from which office all its'business is transacted, is for purposes of taxation in such county.
    The Facts Stated.
    On tax-listing day in April, 1899, the defendant was the owner of $40,000 in municipal bonds, and in April, 1900, of $60,000, and in April, 1901, of $80,000 in municipal bonds. On these several tax-listing days the bonds named were on deposit with the Treasurer of’ the State of Ohio, where they have remained down to the present time, the $40,000 and the $60,000 having been deposited by the company under the provisions of the act of April 25, 1898 (93 O. L., 401), and the $80,000 having, been deposited under the act of April 14, 1900 (94 O. L., 150). On tax-listing day in April, 1901, the defendant company had passed into the hands of receivers, a judgment of ouster having been pronounced against it by the Supreme Court, and there was in the possession of t'he receivers on that day $23,600 in bonds. None of the bonds in the hands of the State Treasurer were returned for taxation by any one at any time or place. The defendant company was a corporation organized under the laws of the state of West Virginia, for the sole purpose of doing business in Ohio. Its articles of incorporation named Cincinnati, Hamilton county, Ohio, as its principal place of business. Its directors and executive officers and probably all of its stockholders were residents of Cincinnati, its home office was there, its stockholders’ meetings were held there, all of its business was conducted there, and its property arose out of t'he business thus conducted. The present suit raised the question whether the bonds on deposit with the State Treasurer are taxable in Ohio, and if so, should they be listed in Columbus (Franklin county), or in Cincinnati (Hamilton county) ?
    Mr. A. B. Benedict,
    representing the Treasurer of Hamilton County, cited in support of the proposition that'these bonds are taxable in Ohio: Hubbard v. Brush, 61 O. S., 252 (1899).
    The place where personal property shall be listed, Mr. Benedict contended is purely a matter of the construction to be given to Section 2735, R. S. of Ohio, and cited: Pelton v. Transportation Co., 37 O. S., 450; British Commercial Life Insurance Co. v. Commissioners of Taxation and Assessment' of New York, 31 N. Y., 32; 28 Howard’s Practice, 43; Pomroy. Salt Co. v. Davis, 21 O. S., 555; Worthington v. Sab'astian, Treasurer, 25 O. S., 1; Sommer? v. Boyd, 48 O. S., 648; McNeill, Assignee, v. Hagerty, 51 O. S.. 266; Bispham on Trusts, Sec. 20 and See. 40; State International Life Insurance Co. v. Haight, Collector, 35 N. J. Law, 279.
    The State Treasurer does not hold as a trustee, but as a depositary or pledgee. But it is the pledger of stock who is taxable: Ratterman v. Ingalls, 48 O. S., 468; so also the mortgagor: Corrigan v. Kimberly, 36 Bull., 331, affirmed by the Supreme Court without report. The situs of intangible property is not at the corporate residence: Augusta v. E'arle, 13 Peter, 519. A corporation excluded from Ohio may have property in Ohio: State v. Pohlmeyer, 59 O. S., 491; and the fact that the property was acquired illegally does not affect the question of its taxability: Salt Lake City v. Hollister, 118 U. S., 256; Stevenson v. Hunter, 2 Nisi Prius, 300. Nor are debts'deductable‘from bonds or'stocks: Pajme v. Watterson, 37 O. S., 121.
    Dyer, Williams & Stouffer,
    representing Eranklin county, cited, Hubbard, Treasurer, v. Brush, 61 O. S., 252 at 263, in support of the contention that the residence of a corporation is within the state by whose authority it was created; and also: B. & O. Ry. v. Cary, 28 O. S., 208; Bridge Co. v. Mayer, 31 O. S., 317; 25 Am. & Eng. Ency. of Law (1st Ed.), 146.
    But in the eye of the law personal property has no locality, but is taxed where it is found: The Ferry Co. case, 11 Wall., 423; Catlin v. Hull, 21 Vt., 152; R. R. Co. v. Pennsylvania, 15 Wall., 300; Walker v. Jack, 40 W. L. B., 237; Western Assurance Co. v. Halliday, 45 W. L. B., 437; Waples on Debtm and Creditor, Sec. 97; Burroughs on Taxation, Sec. 45; Judson on Taxation, Sec. 394; N°w Orleans Stempel, 175 U. S., 309; Buck v. Miller, 147 Ind., 586.
    The State Treasurer in receiving such deposits .acts as trustee: State, ex rel, v. Matthews, 64 O. S., 419; Falkenbach v. Patterson, 43 O. S., 359; State, ex rel, v. Investment Co., 64 O. S., 283; Relíe v. Rundel, 103 U. S., 222; State v. Irons, 5 Yroom, 464, quoted with approval in State v. Grover, Collector, 37 N. J. L., 174; City of Detroit v. Lewis, 109 Mich., 105; Latrobe v. Balti.more, 19 Md., 13; Beech on Traste and Trustees, Sec. 415; Perry on Trusts, Sec. 331; Grant v. Jones, 39 O. S., 501; Sommers v. Boyd, Treasurer, 48 O. S., 648; Brown v. Noble, 42 O. -S., 405; People v. Home Ins. Co. 29 Cal., 533; Finley y. Philadelphia, 32 Pa. St. R., 381; Hoyt v. Commissioner of Taxes, 23 N. Y., 232; Maltby v. Reading & Columbia R. R.. 55 Pa. St., 140; French, Treasurer, y. Bobe, Assignee, 64 O. S., 323.
    Swing, J.; Jelke, J., concurs.
   This ease is in this court on error to the judgment of the Court of Common Pleas of Hamilton County.

The Interstate Savings Investment Company was a corporation organized under the laws of the state of West Virginia. Its main office and principal place of business was, in fact and by the terms of its incorporation, to be in Cincinnati, Ohio. Under the acts of t'he Legislature of Ohio, passed April 25, 1898, 93 O. L., 401, and April 14, 1900, 94 O. L., 150, this corporation was required to deposit with the Treasurer of Ohio certain bonds. These provisions were complied with by the company, and the question now for our consideration is, where these bonds should pay taxes.

It is admitted that under the decision of our Supreme Court' these bonds are taxable in Ohio. It is claimed that these bonds should bé returned for taxation by the Treasurer of State in the county where t'he safe of the Treasurer of the State is, and where these bonds are required to be kept, which is in Franklin county. On the other hand it is claimed that the bonds should pay taxes in Hamilton county, in -which county the principal office and main place of business is located.

The court of common pleas held that' the bonds ivere taxable in Hamilton county. We think the judgment of the court was right as to this.

We are clearly of the opinion that t'he bonds required by law to •bo deposited with the Treasurer of State, do not in any' sense constitute him a trustee or oivner in any sense. He has no right or control ovér these bonds, and not a particle of interest in them either as to principal or interest except as an officer of the state and as the custodian of them. The bonds are the property of. the corporation, just' as much after they are deposited with the State Treasurer as they were before. It is true they may be applied in the payment of the debts of the corporation at the instance of the creditors of the corporation, but' this necessarily goes on the principle that the bonds belong to the corporation. The law does not contemplate, in the least, that any kind of ownership or title t'o these bonds should invest in the Treasurer of State. He is simply an officer of the state to keep in the safe used by him as. treasurer, these bonds. He can not keep these bonds any other place. The bonds remained at all times the property of the company, and must be listed by it for taxation, under Section 2735, R. S., at the place where the owner resides. The owner, in this case, is the corporation, and its residence for taxation is Cincinnati, Hamilton county, Ohio. 37 O. S., 450.

Dyer, Williams & Stouffer, for the Treasurer of Franklin County, plaintiff in error.

A. B. Benedict, for the Treasurer of Hamilton County.

J. B. Todd and Wade Gushing, for Isaac B. Cameron, Treasurer of the State of Ohio.

The fact that the corporation was ousted from its rights to do business in Ohio did not have the effect to take away its property. The bonds and property belonging to the corporation still remained its property, and was still liable to pay taxes at the same place, as long as any property remained.

The judgment of the court of common pleas will be modified accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    THE NECESSARY INDICIA OF AUTHORITY UPON THE PART OF AN AGENT.
    The Chicago Cottage Organ Company v. Emma B. Rishforth.
    Decided, February, 1903.

      Commodities Treated as "Money" — Agency—Scope of, a Question of Fact — Estoppel of Principal from Disputing. '

      1. "Where there has been an exchange of commodities at a liquidated value, and the balance due is stated in money figures, the commodity exchanged by the one against whom the balance stands may be treated as “money,” within the meaning of the act providing that where property is conditionally sold, the vendor may not retake' it without repaying a certain part of the price paid.
    2. To establish agency, one or the other of two things must be proven —either that the agency actually existed and the agent had the authority he assumed to exercise, or that the principal is estopped from disputing it.
    Jelke, J.; Swing, J., concurs.
   We incline to file opinion that where there has been an exchange of commodities, like a piano on the one hand, and commissions and board on the other, not by way of barter, but on the basis of an agreed liquidated value for each respectively, so that the aeeunting and balance is stated by the parties in money figures, the commission and board may be treated as money, within the meaning of the word “money” as used in R. S., 4155-3 and its amendment in 95 O. L., 60.

We think the case of Buggy Co. v. Hord, 65 Mo. App., 43, rather supports this view, and not' the contention of counsel for the plaintiff in error. In that case the vendee claimed credit for some dishonored acceptances of his own, still in the hands of the vendor, and the court said that as between vendor and vendee they could not be treated as money; “this equity is available to the vendee only when by the omission of such entry he is in danger of suffering substantial injury.”

We do not think it is safe to follow analogies taken from the law of descent and distribution, because the body of the law on that' subject has an origin, development and character of its own.

We do not, however, decide this proposition generally, because it is not necessary to a review of this case. We are of the opinion that to the extent that, in their subsequent compromise and settlement of December 8, 1898, the parties reduced their conflicting claims to a balance of 'an account, stated in money denomination, it must, for a determination of their rights under the law, be 'treated as “money.”

This brings us, naturally, to the consideration of the other alleged errors.

If the parties are to be bound by what they did on December 8, 1898, so that Mrs. Rishforth can claim credit as for money paid, the Chicago Cottage Organ Company is entitled to hold her to the express contract as then entered into by them, that is, a contract of mortgage, and not conditional sale. But she s'ays, being alive, from experience, to the distinction between chattel mortgages and conditional sales, she secured certain parol modifications of the written contract from agents Price and Yan Fossen. These oral changes are in direct contradiction to the writing. If it was within the scope of Price and Yan Fossen’s agency to so modify by parol the written contract, of course their modifications hind the company. The scope of their agency is 'a question of fact to be found by the jury, under proper instructions from the court.

On this subject the court below charged as follows:

“There has been some controversy about the authority of the agents of the Chicago Cottage Organ Co. The agents of the Chicago Cottage Organ Co. would bind such company for any act or promise or contract made by such agent with the defendant which was either within the actual scope of his authority, or such authority as the defendant, Mrs. Rishforth, acting as a prudent person, under the circumstances would reasonably believe such agent to possess. The written contracts or papers between the company and defendant 'are not conclusive upon such agent’s authority, but they, together with all the other facts and circumstances, should be taken into consideration by the jury for the purpose of determining what was the 'actual scope of the authority of such agent; or with the notice, if any, that she received thereby, would she, acting as a prudent person, reasonably believe such agent to possess such authority under t'he circumstances.”

This charge is essentially erroneous. It must never be forgotten that there can be no such thing as an agent without a principal.

The facts and circumstances which justify an ordinarily prudent person in believing in the existence of a sufficient agency must be facts and circumstances for which the principal is responsible. The indicia of authority must be at least by the permission of the principal.

It is true that, on account of the remoteness of the principal and the great show of business surrounding the agent, much has been read into the authority of agents, for the protection of the innocent public, and very slender evidence has at times been held sufficient to trace home authority; but the fundamental principle must not and can not be lost sight of. The umbilical cord must be there.

John Ledyard Lincoln, for plaintiff in error.

John W. Wolfe, contra.

On account of a tendency to obscure this principle in some cases, courts and writers of high authority have recently been emphasizing it.

The principle is correctly stated-in an article by John S. Ewart, in the Harvard Law Review for January, Vol. 16, p. 187:

“Where a principal has by his voluntary act placed1 an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act and therefore deals with the agent, the principal is estopped as against such third person from denying the agent’s work.
“The important question is: What did such third person believe and have a right to believe as to the agent, from the acts of the principal?
“Johnson v. Milwaukee (1895), 46 Neb., 480; 64 N. W. Rep., 1100; approved in Holt v. Schneider (1899), 77 N. W. Rep., 1086.
“Heath v. Stoddart (1898), 91 Me., 499; 40 Atl. Rep., 547.
‘ As Lord Cranwoxtli says: 'You prove one thing or the other— you must show that the agency did exist and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it.’ Pole v. Leask (1863), 33 L. J., Ch. 162.”

Its last and highest expression is by the United States Supreme Court, in the case of Northern Assurance Co. v. Grand View Building Association, decision rendered January 6, 1902, 183 U. S., 308.

The other errors complained of as to the admission of testimony offered by the agents are determined by the same principle.

Judgment reversed.


text:
    PRIVATE RIGHT OF WAY BY IMPLIED GRANT.
    [Circuit Court of Tuscarawas County].
    June Term, 1902.
    George F. Mosher v. Enos Hibbs.

      Easement — Private Right of Way an Appurtenance to Tract Conveyed— Implied Grant — Grantee's Tract Need Not 'be Entirely Surrounded, nor is it Divested by Purchase of Other Lands, nor Defeated by Removal of Necessity.

    1. Where the owner of a body of land, during his occupancy of it, constructs a private way over one part of it to another, as a means'of egress and ingress to the latter from the public highway, which way is apparent, continually used and reasonably necessary to the use and enjoyment of the land to which the way is constructed, and also adds materially to its value, and afterwards sells and conveys by deed the part with the way to it, and retains the part with the way over it, his grantee takes his part, to be enjoyed with reference to the way as the same existed at the time of the conveyance, with an implied grant of the way to it over that retained by the grantor, as an easement therein.
    2. Such private way is an appurtenance to the tract conveyed, and the right thereto passes without being expressed in the deed.
    3. It is not required that the grantee’s tract shall be entirely surrounded by the lands of the grantor; it may be partly surrounded by those of the grantor and partly by those of a stranger, and if the grantee’s tract is inaccessible except through the lands of his grantor or those of a stranger, the right of such private way shall pass as appurtenant to the grant.
    4. A way by grant or implication is not divested by the after purchase of other lands over which the grantee might have ingress and egress.

      5. Where the way in question is by grant, it is not material that it is one of necessity ; it is sufficient if it be reasonably necessary to the enjoyment of the land granted, and materially adds to its value.
    Voorhees, J.; Douglass, J., and Donahue, J., concur.
   This action comes into this court on appeal. The nature of the suit is to enjoin the defendant from using a certain right of way over t'he premises of the plaintiff. The plaintiff in his petition describes his premises and alleges that the defendant is threatening to use a certain right of way that extends over such premises.

The situation of the property in controversy is substantially this:

The plaintiff is the owner of a large tract of land, through which there has been in use for many ye'ars a road or private way leading from the public highway, known as the New Philadelphia and TJhrichsville Road, in a southeasterly direction, to a remote portion of his farm, crossing the tracks of the C. L. & W. Railroad at a designated farm crossing, and thence continuing in a southeasterly direction t'o other portions of plaintiff’s premises, owned by him prior to 1893.

In 1893 the plaintiffs sold a portion of said lands, a twenty-two acre tract, to the defendant. The portion sold lies in a southeasterly direction from, where this road or private way le'ads into the public highway and south of the railroad. It is surrounded on three sides, at least, by lands owned by the plaintiff; the other side, at the time of said purchase, belonged to a man by the name of Kinsey. At the time of said purchase, this road of private way for at least two-thirds of its distance was enclosed on each side by a fence, ‘and it was a clearly marked roadway for the use and convenience of that part of the farm owned by the plaintiff lying in that remote portion where said twenty-two acre tract was situated. This right of way crossed the tracks of the said railroad at a permanent farm crossing and continued in a southeasterly direction to said twenty-two acre tract. After it leaves the railroad crossing the way was not so distinctly marked by fences as the other portion of the route, but it is contended that there was a distinct, visible, well-defined and marked way leading from said crossing to said twenty-two acre tract. The only access to the twenty-two acre tract from the public highway was through this road or right of way over the lands of the plaintiff. The plaintiff has maintained along this way .gates for the convenience of himself and for the use of his farm, and this was its condition when the purchase was made by the defendant.

It is contended by defendant that when this land was sold and conveyed to him there was this distinct, definite right of way, leading from the public road, the New Philadelphia and Urichsville highway, through the premises of the plaintiff to said twenty-two acre tract; that it had been used for that purpose by the plaintiff and by anyone who had occasion to use that portion of the farm that was remote from the public road, and the defendant claims and insists that he purchased said tract with it in view, although it is not referred to in the deed, and there was no exception in the deed to a right of way, nor was it excluded from the covenants of t'he deed.

The first question involved is whether there was any visible, well defined right of way to this twenty-two acre tract at the time of its purchase by plaintiff. If so, what right, if any, would this purchaser, the defendant, have in this right of way.

The second and principal question involved is whether the right to use this right of way vested in the purchaser of this twenty-two acre tract by grant.

We find as facts:

(1). That there was this distinct, visible, well-defined and marked road or way, leading from the public highway over the land of the plaintiff to this twenty-two acre tract at the time of the purchase by defendant; that said way was continually used and reasonably necessary to the use and enjoyment of, and added materially to the value of said twenty-two acre tract; and that by reason thereof, when the defendant purchased said tract from the plaintiff, he secured by grant a right of. way in such road or way that can not be interfered with by the plaintiff by injunction or otherwise.

(2). That this right being by grant, rather than a right from necessity, the defendant takes it subject to conditions or burdens that were imposed upon it by the owner at the time of the purchase. That is, the defendant must take it subject to such gates of the plaintiff as were thereon at the time of said purchase, and he is charged with the ■ duty of opening and closing the same in lawful manner while in the use of said way. On the other hand plaintiff has no right to impose any additional or further burden upon the right of way than existed at the time of the purchase.

(3). There is another issue of facts to be considered and that is: It is contended by the plaintiff that after this property was sold he required of the defendant that he pay rent for the use of this right of way. If that were true; if-that was the nature of the contract between the parties; if instead of the defendant relying upon the rights that would be secured to him by the law, he undertook to secure a right to use the way by paying rent for it, then it might be terminated by the plaintiff. But, as a question of fact, we find there was no such understanding or arrangement between the parties, and what was paid by the defendant to the plaintiff was not paid as rent for the right of way but was paid for the use of a strip of ground that belonged to plaintiff for raising vegetables, etc., and the amounts so paid were not intended and were not paid as rent for the use of said right of way.

(4). There is still another question to be considered and that is: what effect if any does the fact, that since defendant purchased this twenty-two acre tract from plaintiff he has purchased an eleven acre tract from a third party, by which he can have access to another-way -or outlet, from his premises to the public highway, have upon his rights in or to this right of way secured by-grant as found when he purchased this twenty-two acre tract. If his right were only duch as inured to him from necessity, perhaps he could only use it so long as that necessity existed. But that question is-not before us, -and it is not necessary for us to pass upon -it, for the reason, we hold that this is not' a right of way from necessity, but it is a grant secured to him by reason of the situation of the property of the plaintiff at the time he sold the twenty-two acre tract to the defendant; and we hold, although the defendant may now have another right of way, it does not divest him-of the rights secured to him from conditions and circumstances as they existed at the time the purchase and the conveyance was made to him. Although he may have since acquired another outlet, this will not' deprive him of the rights that vested in him when he purchased the twenty-two acre tract.

If these propositions or conclusions are sustained by the law,, they dispose of this case.

Where the owner of a body of land, during his occupancy of it, constructs a private wajr over one part' of it to another, as a means of egress and ingress to the latter from his home and also to the public highway, which way is apparent, continually used and reasonably necessary to the use and enjoyment of the lands to which the way is constructed, and also adds materially to its value, and afterwards sells and conveys by deed the part with the way to it and retains the part with the way over it, his grantee takes his part to be enjoyed with reference to the way as the same existed at the time of the conveyance, with an implied grant of the way to it over that retained by his grantor, as an easement therein.

In support of this see Baker v. Rice, 56 O. S., 463, and authorities cited in the opinion by Judge Minshall. We think the principle of that ease applies here.

If there had been nothing said about a right of way, or if there had been no visible evidence of a way, or of the use of a right of way to that' part of the farm purchased by the defendant, then the legal rights of the defendant would be such as. would arise by the law of necessity. But there being this visible right of way, and the purchase having been made with reference to it, and it having been used and dedicated by the plaintiff for the use and convenience of that p'art of the farm sold to the defendant, although for his own individual use, yet, when he sold this part of the farm to the defendant,, the right to use such highway vested as a property right in the purchaser, notwithstanding there is no reference whatever made to it in the deed.

There is no question as t'o the value of this right of way to the twenty-two acre tract purchased by the defendant, and this right of way is reasonably necessary to the use of the land, and the plaintiff, as the owner of it, and his grantees are entitled to use it for the convenience of the portion of the farm, namely the twenty-two acre tract. That being so when he made the deed, although there is nothing said in the deed about the right of way, there is an implied grant to the purchaser, or grantee named in the deed, of the use of this way; and it becomes a vested property right in him, and he takes it subject to the grantor’s use of the balance of the property over and through which it passes.

In Meredith v. Frank et al, 56 O. S., 479, it is held: “Where an owner of a tract of land has made and maintained a private way over his land to a public highway, and such way is his only means of ingress and egress to his home, sells and conveys to another a portion of it, lying on the public highway, and is thereby deprived of all access to the highway, except by the way he had previously constructed and maintained, and which passes through the granted part, and the facts were well understood by both parties at the time in such case, the way is reserved to the lands of the grantor by implication, although the deed contains a covenant' against incumbrances.”

Applying the principle of this ease to the case at bar; suppose the plaintiff here had sold a portion of his farm that lies adjacent t'o the New Philadelphia and Urichsville Road, there was nothing said in the deed about the right of way, yet, it would be reserved to him in the use of the balance of his property, although he made a warranty deed warranting against incumbrances.

Therefore, we think the doctrine of these two cases, supra, very clearly secures to the defendant in this .case an implied grant in this right of way, resulting from the surroundings and conditions of this property at the time the deed was made.

There has been some contention that this doctrine can not apply in this case for the reason that this twenty-two acre- tract was noc entirely surrounded by the land of the plaintiff. We think that makes no difference. It is not required that the grantee’s tract shall be entirely surrounded by the lands of the grantor; it may be partly surrounded by the lands of the grantor and partly by those of a stranger, and if a grantee’s tract' is inaccessible except through the lands of his grantor or those of a stranger, the right to such private way shall pass as appurtenant to the grant.

See note in 85 Am. Dec., page 679, and authorities cited, where the author says:

“When the grantee’s land is wholly surrounded by what had been the grantor’s other land, or partly by his and partly that of a stranger, or is inaccessible except through the lands of his grantor or those of a stranger, a way by necessity over the lands of the grantor is appurtenant to the grant, and passes as incident to it.”

This meets the contention and claim that because this twenty-two acre tract was not entirely surrounded by the lands of the plaintiff that this grant could not arise by implication.

This leaves but a single question, and that is: whether the fact that defendant has purchased an adjoining tract of eleven acres, since his purchase of the twenty-two acre tract, thereby giving him a right of way in a different direction, destroys his grant or rights in the way over plaintiff’s land?

This can apply only where the right of way is one arising from necessity. Such a case would be where there was no outlet, or had been none at the time of the conveyance. In other words, where a- party is the owner of a body of land and he sells to another a portion of it which is surrounded by other lands of the grantor, and where there has been no nse of an outlet or way whatever over his lands, in such a ease the right of way is secured to the grantee by necessity. But where' there is a fixed and open way, such as we have here, and the purchase is made with reference to it, the grant, which is then made, arises by implication in the way as it then existed, and is not lost by subsequent conditions, as by getting a way in a different direction.

We think the case of Estep v. Hammons (Ky.), 46 S. W. Rep., 716, is applicable, where the court say:

“We are of opinion that, hy the sale by appellee to appellant •of the lot no^on a public highway, by implication of law he also sold to appellant, as appurtenant to the lot, a right of way for ingress and egress. The fact that appellant’s lot was bounded on the other three sides by the lands of other parties does not in any way relieve appellee from the rule laid down in the eases, supra. This right of way to appellant’s lot passing with it by operation •of law, it is wholly immaterial whether it be specially named in tlie deed or contract' of sale. We are also of opinion, from the evidence, that, in the sale by appellee to appellant of the lot in •question, there was an agreement on the part of appellee that a right of way over appellee’s remaining land should pass to appellant with the lot for the use of appellant and his family. If the particular location of the right of way was specified in the conveyance, of course that would govern; but an entire absence ■of the way in the conveyance would not defeat the right, but would only leave it's location uncertain and undetermined. Nor do we think this right of way that passes as appurtenant to the land would be lost or affected if the purchaser should purchase him an outlet over the lands of others. The right of way easement, being appurtenant to and running with the lands, is a part of it and can only be extinguished by merger of the two estates, or by •other process known to the law to divest real estate.”

The following authority is also in point: Zell v. Universalist Society, 119 Pa. St., 390; 4 Am. St. Rep., 654.

Where the way in question is by grant, it is not material that it is one of necessity; it is sufficient if it be reasonably necessary to the enjoyment of the land granted, and materially adds to its value. Baker v. Rice, 56 O. S., 478, citing Phillips v. Phillips, 48 Pa. St., 178.

Therefore, we think this meets the contention, that the defendant is not deprived of the use of this right of way over the lands of the plaintiff because he has since purchased the eleven acre tract and thereby may have an outlet over lands secured by this subsequent purchase.

A. W. Patricio, Helea & Green, for plaintiff.

J. S. Graham and J. H. Mitchell, for defendant.

Without taking any more time upon the questions presented, we hold' that the defendant is entitled to have secured to him, without obstruction, t'he right to use the right of way over the route that has been used by plaintiff to the twenty-two acre tract, and the plaintiff has no right t'o interfere' with him, but the defendant at the same time has no right to leave open the gates that were used upon the property at the time he made his purchase; and t'he decree of the court will be in favor of the defendant, as prayed for in his answer and cross-petition, with the costs of the action.


text:
    ADDITION TO TAX LIST WITHOUT NOTICE FOR. ALTERATION OF OLD STR.UCTUR.E.
    [Circuit Court of Hamilton County.]
    State of Ohio, ex rel Kramer, v. Lewis, County Auditor.
    Decided, February, 1903.
    1. An error in a tax list, which, has been committed by a board of equalization, or by any other board or officer, while acting without authority of law, or in excess thereof, can not be said to be fundamental and beyond the power of the county auditor to correct.
    2. An addition to the tax list, because of the alteration of an old structure, and without proper notice to the owner of the property, is a manifest error, made without authority of law, and one which the county auditor should correct.
    Swing, J.; Jelke, J., and Gtffen, P. J., concur.
   This is an action in mandamus. The relator asks to have the auditor correct his tax list as to a certain lot owned by him, and to call the attention of the county commissioners thereto, as is provided under Section 1038, R. S.

The ease is submitted on an agreed statement of' facts.

Under the decision in case of Schindler v. Louis, 16 C. C., 348, the addition made to the valuation of the relator’s property by the board of supervisors was not for a new structure, but for the alteration of an old structure.

It was therefore necessary for said board to give notice to the property owner before making such an addition, and this, it is admitted, was not done. Therefore, it must be admitted that the board had no authority in law to make the 'addition which was made.

There is only one question, therefore, presented to us, whether Section 1038 R. S. affords to the relator the relief asked.

It is claimed by the auditor that only clerical errors can be corrected by him under this section, and that the one in question is not clerical hut fundamental.

This section of the statute was before the Supreme Court of Ohio in the case of State, ex rel Poe, v. Raine, Aud., 47 O. S., 447. The fourth proposition of the syllabus is as follows:

“When such boards undertake to reduce the valuation of certain lots or tracts of land found on the duplicate of the preceding ye'ar without adding to other parcels thereof an amount at least equal to the attempted reduction, they exceed their authority, and their action being without warrant of law should be disregarded by the county auditor; and, if instead of disregarding the same, he transfers to the new tax duplicate such lands at the reduced valuation, the error thereby committed is not fundamental, but is a clerical one, which it is his duty to correct, and the auditor of state has authority to direct and require him to make the correction.”

At page 456, Judge Bradbury says:

“McIlvaine, J., on page 574, saying in this connection: ‘True it was held in State v. Commissioners of Montgomery County, 31 O. S., 271, that the corrections which the auditor may make under this section 'are merely clerical. The error to be corrected in relation to the plaintiff’s taxes was the deduction of the re-insurance item from its credits. No fact is to be inquired into. Every necessary fact appears on the face of the return. Charge the proper rate of taxes upon the amount of credits returned without any deduction on account of the re-insurance item and the error in the amount of plaintiff’s taxes will be corrected — clerical merely.
“This case shows that the term ‘clerical error’ is not limited to such mistakes as occur in copying or in computations. Errors by which property escapes its lawful share of taxation must of necessity be either fundamental, and thus beyond the power of a county auditor to correct, or clerical merely and therefore within that power. The difficulty, however, lies in the attempt to distinguish them. While we are not required in this, case to lay down rules, if that were possible, by which in all eases the character of these— as being fundamental or merely clerical — may be determined, yet, certainly those only are to be deemed fundamental that pertain to the very foundation upon which a tax rests. This, of course, includes defects and imperfections in the law itself and errors of judgment committed by public boards acting within the. scope of their authority. But can an error be said to be fundamental and thereby placed beyond the power of a county auditor to correct when it has been committed by a board of equalization or by any other board or officer while acting without authority of law or in excess thereof ? We think not. And if when we come to examine the acts of the boards of equalization which are under consideration in this action, it shall appear that they acted without warrant of law or exceeded their authority, their errors so committed are not in any sense of the term fundamental and may therefore be corrected by the county auditor.”

It' seems to us that this decision fully covers the question here presented and is decisive of it.

. If it were a question as to whether the board of supervisors had placed a correct addition to the tax valuation of the property in dispute, it would be a matter that the auditor could not correct, for that is a matter that is left to he judgment of that board, and the error, if any, would be fundamental; but this board can only place an addition to the tax valuation of a piece of property when it proceeds according to law, and in this case, after it has given notice to the property owner, which it was admitted was not done here. In fixing the amount that should be added, the board exercised it's judgment, but in placing it on the duplicate it was not exercising any judgment and was not proceeding according to law, but on the contrary, it was purely arbitrary and contrary to law. This is an error that the auditor should correct, and in doing so, he is not' undoing anything which they had a right to do, but simply correcting a manifest error that they had done without the slightest authority of law to do.

Dan. Thew Wright, for the relator.

Ampt, Ireton & Collins, contra.

The Harris case is the same in principle as this, and is governed by it.

Decree, for plaintiff.


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    TRUSTEE’S BOND INVALIDATED BY FAILURE OF THE COURT’S JURISDICTION.
    [Circuit Court of Hamilton County.]
    Jones et al v. Wright, Trustee.
    Decided, February 1, 1903.

      Trustee’s Bonds— Action's to Enforce — Different Jurisdictions — Failure of Jurisdiction — Misjoinder.
    1. Causes of action against several defendants are' improperly joined where the action is upon bonds which were not signed by the same parties, or given in the same court, or in courts .of the same jurisdiction, or answering to the same parties, or containing the same conditions.
    2. A bond given in a case in which the court has no jurisdiction is an absolute nullity, and the fact that the court found it had jurisdiction fails to give it any effect, and the want of jurisdiction may be shown'in any action founded upon such bond.
    Swing, P.-J.; G-ieeen, J., and Jelke, J., concur.
   This was an action brought in the Court of Common Pleas of Hamilton County by Rogers Wright, trustee, against Samuel N. Maxwell, J. T. Jones and Samuel N. Maxwell and John M. Maxwell, executors of the last will of George M. Maxwell, deceased. The petition sets out two causes of action.

The first cause of action is founded on a bond dated October 22, 1870, which was signed by Samuel N. Maxwell, George M. Maxwell and J. T. Jones, and was in the sum of $3,500. It is alleged that this bond was given in the Probate Court of Hamilton County, pursuant to an order of said court, to secure the faithful performance by said Samuel N. Maxwell, as trustee under t'he wills of Sarah Clyde and Jacob Fortue, appointed as such by said court on October 15, 1870. It is alleged that on the 18th day of April, the probate court of said county, by its order, judgment and decree, found there was due from said Samuel N. Maxwell, as trustee aforesaid, the sum of $1,902.41, with interest from July 1, 1898, and the further sum of $951.20, with interest from July 1, 1896, and judgment is asked against said Samuel N. Maxwell, J. T. Jones and said Samuel N. Maxwell and John M. Maxwell, executors of George M. Maxwell.

.For a second cause of action plaintiff alleges that in a certain proceeding in said Hamilton County Court of Common Pleas said Samuel N. Maxwell and George M. Maxwell executed a bond on the 17th day of March, 1875. This bond was in the sum of $6,000. The condition of said bond is-alleged to-be as follows: “Whereas, the said S. N. Maxwell has been appointed trustee for the heirs and devisees of Sarah Clyde and Jacob Fortue, now if the said trustee shall perform his duties as such according to law and the order of this court, then the above obligation to be void.” It is further alleged that said trustee, by virtue of certain proceedings in said court, collected certain moneys, proceeds of real estate, amounting to $2,956.50, which sum, with interest, said Maxwell was ordered by said court to pay over to the plaintiff, Wright; and judgment is asked by said plaintiff against said Samuel N. Maxwell, individually, and against said Samuel N. Maxwell and John M. Maxwell, as executors of the estate of George M. Maxwell.

To this petition the defendant, J. T. Jones, filed a demurrer, one ground of which was that “separate causes of action against several defendants are improperly joined,” which demurrer the court of common pleas overruled.

We think this was error. The bonds were not signed by the same parties, nor were they given in the same court, and the conditions were entirely different in the two bonds. The one given in the probate court was given t'o the State of Ohio for the faithful performance of said Samuel N. Maxwell of his duties as trustee under the will of Sarah Clyde and Jacob Fortue; whereas, the other was given to the heirs of Sarah Clyde and Jacob Fortue in a case pending in the court of common pleas by virtue of an order of said court made in said action. Each bond was given by order of the court in the exercise of its jurisdiction in matters pending before it. The jurisdiction of each court was separate 'and distinct from the other, and the bonds were not given by the same parties. One was to answer to the faithful performance of a trust under the probate court and the other was to answer for the faithful performance of a trust under the control of the court of common •pleas. Such a state of facts shows that there are separate' causes of action, 'and the parties not being the same, they are improperly joined, and this error is not cured by subsequent proceedings.

A second ground of error relied on by plaintiff in error is that the court erred in sustaining a demurrer to the amended answer of J. T. Jones. In this answer the said Jones alleged that the bond set forth in plaintiff’s first cause of action on which judgment was 'asked against him was given by virtue of an order of the probate court in an attempt to sell an entailed estate, and for no other purpose; that said real estate was not, in fact, sold in said proceedings before said court; that said court had no jurisdiction of the subject matter;' 'that' when it was ascertained that said court had no jurisdiction of the subject matter, proceedings were instituted in the court of common pleas for the purpose of selling said entailed estate, and said estate was sold by order of said court and bond given by order of said court by virtue of Section 5803, R. S., et seq., which bond is the foundation, of the second cause of action set out in the petition.

It seems to us that the court erred in sustaining this demurrer. Conceding the facts to be true, which the demurrer does, it shows that the probate court had no jurisdiction of the subject matter. The jurisdiction of the probate court is limited t'o that conferred cn it by the Constitution and statutes of Ohio. It has no jurisdiction to sell entailed estates — such jurisdiction is conferred on the court of common pleas by the section of R. S., sufra — .and even if the parties had consented, no jurisdiction could be conferred, and any action taken by said court in this regard would be coram non judice. A judgment of any court which has no jurisdiction of the subject matter is absolutely void and of no validity whatever, and the want of such jurisdiction may be shown in any action founded on such judgment; and the fact that a court finds that it has jurisdietion makes no difference if the record discloses the fact that it. had no such jurisdiction; .

Jones & James and John B. Holmes, for plaintiffs in error.

D. Thaw Wright, contra.

The facts set'up in the answer of J. T. Jones clearly show that the probate court was wholly without authority to make any order or take jurisdiction to sell the entailed real estate, and had no authority to take the bond given by said J ones, and said bond had no validity by virtue of the order of said court, and the judgment of said court on said bond was equally invalid.

For these reasons the judgment will be reversed and cause remanded.


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    A DISMISSAL FOR LACK OF PROSECUTION IS A “JUDGMENT ” RE VIEW ABLE ON ERROR.
    [Circuit Court of Hamilton County.]
    Wohlgemuth v. Taylor.
    Decided, January 6, 1903.
    Where a case is called for trial in its order on the calendar, and is dismissed at the costs of the plaintiff for lack of prosecution, the dismissal is a “judgment,” and is reviewable on error.
    Jelke, J.; Swing, J., concurs.
   This cause was' set below, called for trial in its order on the calendar and dismissed for lack of prosecution at the cost's of the plaintiff. We are of opinion that the dismissal was a “judgment” and not an “order.” The case of Evans v. Iles, 7 O. S., 234; is not in point. That' was a case where defendant 'appeared in court only to make the motion and point out its want of jurisdiction; and secured an order of dismissal for want of proper service. Of course such an order could not be a judgment, the court not having the parties before it.

W. G. Williams, for the motion.

Stephens & Lincoln, contra.

Here the parties were before the court by. petition, service and answer. The case was reached1 fox trial,‘the burden was on the plaintiff, defendant stood ready to meet him, plaintiff came not and the dismissal is an adjudication between the parties.

It is complained that there was irregularity in the setting, be that as it may, we do not decide, but the motion to vacate a “judgment” because of its rendition before the action regularly stood for trial can be made only in the first three days of the succeeding term and this was not done. See R. S., 5357.

This being so the court had no power in July, more than three months after, to disturb or suspend the judgment. The order of suspension affected a substantial right' of defendant below within the provisions of R. S., 6707, and is reviewable in this court on error.

Case reversed.


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    EQUITABLE RESULTS REACHED IN AN IRREGULAR WAY.
    [Circuit Court of Hamilton County.]
    Grand Grove U. A. O. D. of Ohio v. Peter Mullen et al.
    Decided, January 6, 1903.
    A division of funds will not be disturbed because done in an irregular way, where a just and equitable result has been obtained.
    Jelké, J.; Swing, J., concurs.
   The division of the funds in t'he treasury of Germania Grove No. 5 U. A. O. D. at the time of the surrender of its charter and records to the Grand Lodge, by the seventeen remaining members, was in violation of the constitution and by-laws of the subordinate lodge and of the laws of the Grand Lodge under which the subordinate lodge was organized and maintained. If, therefore, anybody with a real or benéficial interest objected to the arrangement and division, it could be set aside and the recipients of the money compelled to return it.

Sprigg & Fitzgerald, for pl-aintiff in error.

Chris. Von Seg gem, contra.

The laws of the Grand Lodge and the constitution and by-laws of the subordinate lodge, to all of which a member subscribes, make the contract and establishes the relation between the parties.

It is admitted, however, that the Grand Lodge has no proprietary interest in the funds of the subordinate lodge -and if Germania Lodge No. 5 had paid the $1,051.92 into the Grand Lodge, the Grand Lodge would have been a mere naked trustee of the same, holding the fund for the uses and purposes of the organization, that is paying benefits to the members of Germania Lodge No. 5.

This being so, and nobody having a real or beneficial interest in the fund being here and complaining, we do not see why the division made by the seventeen members, being everybody, absolutely or contingently, presently or remotely interested in the fund, should not stand, at least as against the Grand Lodge, on the principles -whereby trusts -are determined where all the parties who are or may be interested in the trust property, are in existence and sui juris and consent and agree thereto. Trusts are never maintained for the benefit of the trustee. See Perry on Trusts, Section 920.

True it might have been more orderly to have procured this division by the sanction of the Grand Lodge and through its processes or by decree of a court of equity, but' the division being accomplished and no wrong having been done or complained of, a court of law will not disturb or undo it merely because a just and equitable result has been irregularly reached.

Judgment affirmed.


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    TRESPASSERS UPON RAILWAY RIGHTS OF WAY.
    [Circuit Court of Summit County],
    The Cleveland, Akron & Columbus Railway Company v. George Stein, an Infant, by Philip Stein, His Next Friend.
    Decided, April, 1903.

      Negligence — Trespassers and Licensees — Use of Railway Tracks by School Children— Warnings of Danger.

    1. Where an employe of a railroad company frequently orders pedestrians off the right of way, and notifies them that the company objects to their use of the right of way, and has consultations with the teachers and superindendent of the schools, warning them against children going upon the right of way, and signs are erected, reading, “ Caution — Don’t Walk or Trespass on This Road,” and a school boy thereafter walks along the right of way, he is a trespasser.
    2. The rule in Ohio as to a trespasser upon a railroad track is, that the company is not bound to look out for him or to give warning, but having discovered his peril, must use every reasonable effort to save him.
    3. A high school boy walking along between two tracks near a street crossing stepped upon one of the tracks, in order to pass around a switch light, without looking or listening or taking other precautions, and was struck by an engine and seriously crippled. Held: That the facts did not support a finding of negligence on the part of the company for-which it would be liable for the injury suffered.
    Error to the Court of Common Pleas, Summit County.
    Hale, J.; Marvin, J., and Winch, J., concur.
   On the 28th day of May, 1900, the defendant in error, while walking along the right of way of the plaintiff company, within the city of Akron, was struck by 'an engine and very seriously injured. For many years prior to the date of this accident the public, including school children, had been accustomed to pass over this part of the right of way of the company in going to and from their homes to their places of business, and school children from their homes to school. The negligence charged in the petition is this:

“The plaintiff further says, that on the 28th day of May, 1900, the said George Stein, being a student of said new high school, was going home over the usual route, to-wit., down Forge street to the track and roadbed of the defendant, thence southerly on the track and roadbed of the defendant to Exchange street; that he had proceeded southerly on the track and roadbed of the defendant' company to a point about twenty feet south of the Center street railroad crossing, when the said defendant, through its agents and servants, carelessly and negligently caused a locomotive to be propelled up. to and against the said George Stein, knocking him down, the wheels of said locomotive passing over his left leg above the ankle. That said locomotive was going in the same direction that said George Stein was going; that said George Stein had his back to said locomotive and did not' know that said locomotive was approaching him from the rear; that no bell was rung or other signal given, or any warning whatever given of the approach of said engine; that said George Stein was in plain sight, and could be seen by the engineer and fireman of said engine in time to have warned him of its approach and permitted him to get out of the way of said engine.”

The negligence complained of, therefore, is a failure to perform the duty which the company owed to this boy. To determine then the act of negligence it is necessary to determine the relation existing between the company and the boy at the time of this accident. If the boy is to be regarded as upon the railroad track by the invitation, acquiescence, or by the permission of the company, it did owe to him the duty to use ordinary and reasonable care to protect him, knowing that he was rightfully upon the-track, and the specific act of negligence charged- — the failure to give the signal — -would be available t'o him. But if he was a mere trespasser upon the track, or a mere licensee, a different rule applies, and the duty of the company to him was entirely different than in the case that I have indicated.

In a very recent case of this same railroad against Workman (66 O. S., 509), the duty of a railroad company to a trespasser upon the track, or a mere licensee, was considered by the court, and in the first paragraph of the syllabus it is stated thus:

“An employe of a railroad company, whose duties in the performance of his employment do not require him to be on the main track of the railroad with a three-wheeled hand car called a ‘speeder/ but who so goes upon the main track without any invitation or inducement therefore by the company, but with no objection on the part of the company, is at most a mere licensee, and his use of the tracli in such manner is subject to all the risks incident to the use of the track by the company, in the same manner it was used 'at the time the license was granted, and the company does not owe him the duty to especially look out for and protect' him, when running its trains, except to use reasonable care to avoid injuring him after discovering him upon the track.”

After that ease had been deckled by the Supreme Court, this court' had occasion to consider this question in the case of The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Gahan, etc., (24 C. C., 277), and, following that case, we held that the duty of a railroad company to a trespasser upon its track, or a mere licensee upon its track, was fully performed when, after discovering the peril of the party upon the track, used all reasonable diligence to save him from the peril.

We are aware that the authorities upon this question are very conflicting, and there is no lack of authorities to sustain the proposition that the duty of the company is not only to use ordinary care after discovering a trespasser upon the track, but to use all ordinary care to discover him. But our Supreme Court has very clearly, not only in this case, but in another case, sustained the proposition that I have announced.

The attention of the jury was not specifically called to this relation, and the duties of the company to this boy under the different phases that might have been submitted to them; but, instead of that, after stating the situation, the court said to the jury:

“And I say to you, that if vou find from the evidence that the defendant did not acquiesce in such use by the public, including school children, at and before the time plaintiff was injured, and that said public, including school children, did not' travel over said place by the permission of the defendant, or if you find that the defendant objected to such use by the public, including school children, then your verdict should be for the defendant.”

Manifestly, that' proposition is much too favorable to the railroad company. This boy might have been on the track under the circumstances assumed and still have been entitled to recover, because, if the agents of the railroad company had discovered his peril in time to have saved him, it was the duty of the railroad company to have done so.

We suppose the court, in the oonstruetion of the petition, held that the only negligence charged was the failure to ring the bell, and to give the proper warning, and did not regard the question made by the petition. The court may have been right, but it will be noticed that1, in general terms, the petition states the defendant, through its agents and servants, carelessly and negligently caused a locomotive to be propelled up to and against said George Stein, knocking him down, etc., and it is possible, under that general allegation of the petition, although not made more specific thereafter, that that question might have been made. But the court, upon this question, further charged:

“I say to you, however, should you be satisfied from the evidence that signs warning the public, including school children, against passing over said grounds where plaintiff was injured, were erected by the defendant, not for the purpose on the part of the defendant of objecting ,or hindering the public, including school children, from passing over said spot; or if you find from the evidence that for a long time previous and up to the date of the accident the said defendant permitted said public, including school children, to travel and pass as pedestrians habitually over its said road, and you further find it acquiesced in such use by them during said period, notwithstanding said printed signs, then, I say to you, that said signs would be of no avail to the defendant. The objections or hindrances on the part of the defendant whether by such signs or otherwise to the use of said grounds in the manner stated by the persons named, must have been in good faith on its part, with the intention and purpose on its part to in fact object to such use. In considering 'all the testimony there may be on this subject in support of the defendant’s claim, whether by written signs or by acts of its servants and officers in person, to amount to an objection to the use by the public, including school children, of said grounds, the same must have been done by the defendant in good faith for the purpose and with the intent on its part to in fact object to such use, in order to be of avail to the defendant in this case.”

We arc inclined to think that that charge máy have been misleading. It was not a question of fraud or good faith on the part of the company. They could control their property as they saw fit. The question was whether they did object, or whether they did acquiesce in the public going upon that land. It is a question of fact to be determined by the jury.

The undisputed facts in the case show that’ the railway company had placed along this right of way certain signs, reading. “Caution — Don’t walk or trespass upon this road.” These signs at all railroad crossings were plain and visible. An employe of the railroad testifies that he had frequently ordered pedestrians off of the right of way, and called their attention to the fact' that the company objected to it; he had consultations, he says, with the teachers in the schools, and superintendent, in which he warned them against the children going upon this right of way. These facts are undisputed.

Under proper instructions the jury would not have been jusified in finding 'anything other than that this boy was at best a mere licensee upon that track; he was, in fact, a trespasser. It can not be expected' that the company shall furnish a man to stand at' all times warning people off of the track. They put a notice up to protect themselves, which they had a right to do, against' this very kind of liability.

If this be true, however reluctant we may be to come to that conclusion, the company was not chargeable with any negligence towards this boy. He was on the track knowing its uses, its dangers — old enough to appreciate them. The company was doing precisely what it had a right to do. If he was a trespasser they were not bound to look out for him or give the warning. They were bound, if they discovered his peril, to use every reasonable effort to save him. That was the extent of their duty toward him.

The jury were clearly wrong in finding negligence on the part of the company for which it would be liable for injury to this boy.

Again, this boy was old enough, as I say, to appreciate this danger; he was walking along between the two tracks, a place of entire safety had he continued in that route, but just before being struck he reached a switch light, and in passing around that he came in contact with the engine without giving any heed to or looking for its approach. Under the rule given to the jury by the court', he was guilty of contributory negligence, which would prevent a recovery. An engine was passing along the track in the midst of other tracks, where danger is always present, and he stepped from a place of safety to a place of danger without even looking or listening, or taking any precaution to save himself.

We think upon both grounds on the facts of this case the jury were wrong in returning a verdict for the defendant in error, and that on a motion for a new trial the verdict should have been set aside.

Allen, Waters & Andress, for plaintiff in error.

Rogers, Rowley, Bradley & Rockwell, for defendant in error.

We find no further error apparent upon this record than this, and lor the sole reason that the court overruled the motion for a new trial because, the verdict was not sustained by sufficient evidence, the judgment of the court below is reversed and the case remanded for a new trial.


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    PROOF OF TITLE TO PR.OMISSORY NOTE.
    [Circuit Court of Hamilton County.]
    Herman Suer v. William Kalbfell.
    Decided November 29, 1902.
    A denial of every allegation of a petition, except the signing of the note sued on, puts in issue plaintiff’s title to the note; and a failure to put the note in evidence is ground for arresting the case from the jury ; but if the defendant himself offers the note in evidence and tries the question of title, he is not prejudiced by the previous error.
    Giffen, J.; Swing, P.-J., and Jblke, J., concur.
   The petition filed in the common pleas court is in the usual form for an action under the code upon a promissory note. The answer is as follows:

“This defendant admits that he signed the note set out in the petition herein, but he denies that there is due to plaintiff from him the sum of two hundred dollars or any amount whatsoever, for the reason that said note was obtained from him, the defendant, under and by misrepresentations; and he denies each and every allegation in' plaintiff’s petition contained, not herein specifically admitted to be true.”

The admission that the defendant signed the note is not also an admission that the same was delivered to plaintiff or that he is the owner and holder thereof. A denial of each and every other allegation in the petition put in issue plaintiff’s title to the note; and upon failure to offer the note in evidence the court erred in overruling defendant’s motion to arrest the ease from the jury.

Benner & Benner, for plaintiff in error.

17. 17. Symmes, contra.

The note was afterwards however offered in evidence by the defendant' himself, and the questions of title to and consideration for the note were fully covered by the evidence which is all brought before us in the bill of exceptions, and we think sustains the verdict.

It does not appear that the defendant was prejudiced by the error of the gourt in overruling the motion, 'and the judgment will be affirmed.


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    RECOVERY FOR TRUST STOCK CONVERTED TO HIS OWN USE BY THE TRUSTEE.
    [Circuit Court of Hamilton County.]
    Mabel Howard Martin v. Austin Gunnison and Julia G. Porter.
    Decided, February 2, 1903.

      Attachment — Parties—Trust Stock Converted to His Own Use by the Trustee —Action on Contract.

    1. A petition which alleges that the plaintiff acquired by devise a one-half interest in certain stock held in trust, which stock was converted to his own use by the trustee, states a good cause of action against the trustee founded on contract.
    2. Where the plaintiff’s interest in the said stock was one-half, there is no defect of parties, because she sues without joining any one with her.
    3. The action being an contract, on attachment was properly issued under the allegations in the attachment proceedings.
    Swing, J.; Jelke, J., concurs.
   This ease is in this court on error. In the court of common pleas, a general demurrer to the petition was sustained, and the court' also dismissed an 'attachment which had previously been issued against the property of the defendant.

In brief the petition set out that' the defendant had in 1875 assigned to one Howe one hundred shares of stock of a railroad company in trust for the use of the mother of the plaintiff during her life, and after her death to be divided between the children surviving her; that the mother had died leaving the plaintiff and a sister, her only children surviving; that the defendant had been appointed trustee in succession to said Howe, and had taken possession of said one hundred shares of stock as said trustee; that he had received six per cent, interest annually on said stock for several years, and had converted both interest and the said stock to his own use; and she prayed judgment against said defendant for one-half of the value of said stock and interest.

Theodore Rorstman, for plaintiff in error.

Joseph Cox, Jr., contra.

In our opinion the petition states a good cause of action, and that while defendant was guilty of a wrong in converting to his own use the stock which he had agreed to hold in trust for the plaintiff, still the right of action of plaintiff against the defendant was founded on the implied promise of the defendant to pay over to the plaintiff the stock which he had agreed to hold in trust, and while the action sounds in tort, it rests in contract. There was no defect in parties plaintiff. The portion belonging t'o plaintiff had been fixed — it was one-half — and the whole was to be divided, and her portion given to her. Her only interest was in the one-half, and no other person had any interest with her in this one-half, and the action was rightfully brought by her without joining anyone with her. The action being on a contract, an attachment was properly issued under the allegations in the attachment proceedings. When defendant filed his answer, he entered his appearance to the action as effectually as if he had been served with summons; and the statement that he did so only for the purpose of filing the demurrer amounted to nothing.

The court erred in sustaining the demurrer and dismissing the attachment, and the judgment will be reversed for these reasons, and the cause remanded for further proceedings.


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    EQUITABLE INTEREST IN LANDS NOT SUBJECT TO LIEN OF ATTACHMENT OR JUDGMENT.
    [Circuit Court of Cuyahoga County].
    Dorr E. Warner, Administrator, v. Alice M. York et al.
    Decided, March 30, 1903.

      Foundation for Creditor's Bill — Subrogation—Equitable Interest — Attachment — Judgment Lien.

    1. An order made by the probate court, upon settlement of the accounts of an administrator, is a proper foundation for the bringing of a suit in the nature of a creditor’s bill.
    2. Where a mortgagor conveys the mortgaged premises subject to the mortgage, payments subsequently made by the mortgagor upon the mortgage debt entitle him to be subrogated to the rights of the mortgagee, and give him an equitable interest in the property.
    3. Such equitable interest does not become merged with a life estate held by the same party, unless it is to the interest of the holder that there should be a merger.
    4. An equitable interest in lands can not be reached by an attachment upon said lands.
    5. Nor does a judgment against the holder of an equitable interest in lands become a lien upon said lands.
    Marvin, J.; Hale, J., and Laubie, J., concur..
   Heard on appeal.

The facts in this case are as follows:

S. M. York and Alice M. York were husband 'and wife. On the 26th day of December, 1896, they were owners os tenants in common of a parcel of real estate in t'he city of Cleveland, which is worth about $12,500. On said date the said S. M. York and Alice M. York jointly executed their promissory note for the sum of $8,000, payable one year after its date with interest at six per cent., said note to draw interest at seven per cent, after its maturity. To secure the payment of this note the makers of it at the same time executed a mortgage upon the premises hereinbefore named, which note and mortgage were delivered to the payee named in t'he note, and the mortgage was duly recorded. Said note and mortgage are now owned by the Colonial National Bank. After the execution of said mortgage the said S. M. York and Alice M. York executed a quit-claim deed of the same premises to one Gibbons, which deed contained a clause reading, so far as it is necessary for the understanding of this case:

“Said premises are conveyed to said grantee above named in trust' for the benefit of said grantors and the survivor .of them for life, and after their death to their children. * * * Power and authority is hereby conveyed and vested in said grantee above named to execute and deliver a deed in fee simple for said premises to said Standish M. York and Alice M. York for life, and in trust upon the terms and for the purpose above named.”

(Standish M. York named in the deed is the same person as the S. M. York hereinbefore mentioned.) The defendants Blanche York, Milton York and Alice S. M. York are the only children of S. M. York and Alice M. York.

Thereafter said Gibbons executed and delivered to said S. M. York and Alice M. York a quit-claim deed of the same premises, containing the following clause:

“This conveyance is made to said Standish M. York and Alice M. York and the survivor of them for life, and to them and the survivor of them the fee in trust for their children now born or hereafter born.”

Both of these deeds were duly recorded.

In January, 1898, said S. M. York died, and the defendant, Alice M. York, was appointed administratrix with the will annexed of his estate. Thereafter and while acting as such administratrix she made various payments out of her own money upon the mortgage debt hereinbefore mentioned. The money from which these payments were made came to her upon policies of insurance upon her husband’s life, she being the beneficiary named in said policies. The aggregate of the payments made by her was about $3,300. No other payments have ever been made upon said indebtedness.

On the 15th of July, 1899, said Alice M. York was by the probate court removed from her administration, and the plaintiff in this action was appointed to succeed her in said trust, and is still in the performance of his duties under such appointment.

Upon the settlement of the aeounts of the said Alice M. York, of her administration, it was found by the probate court that there remained in her hands as assets of said estate the sum of $23,381.07, and, on the 27th day of January, 1900, the probate court entered its order directing her to pay said amount to the plaintiff herein as administrator as aforesaid. This payment has not been made.

On the 27th day of November, 1899, the Wick Banking & Trust Company recovered a judgment in the Court of Common Pleas of Cuyahoga County against said Alice M. York for $1,672.25.

On the 18th day of December, 1899, the American Surety Corn-pan commenced an action against said Alice M. York in the Court of Common Pleas of Cuyahoga County, and on the 25th day of June, 1900, an order of attachment was issued in said last named action and levied on the premises hereinbefore named.

On the 3rd day of August, 1900, the plaintiff filed his petition in this action, ^ind on the 19th day of October, 1900, filed his amended petition herein, the same being the petition upon which this case is tried.

On the 25th day of October, 1900, execution was issued upon the judgment 'obtained by the Wick Banking & Trust Company, and this was levied upon the interest of said Alice M. York in the same premises. Ever since the execution of said mortgage the said Alice M. York has been in possession of said premises.

The petition of the plaintiff is in the nature of a creditor’s bill, and sets out the order made by the probate court as hereinbefore mentioned, the execution and delivery of the mortgage now held by the Colonial National Bank and the execution and delivery of the quit-claim deeds hereinbefore mentioned, and prays that the interest of the said- Alice M. York in said premises be subjected to the payment of the plaintiff’s claim.

It is conceded by all the parties that the first lien upon these premises is the mortgage of the Colonial National Bank.

The plaintiff, the Wick Banking & Trust Company, and the American Surety Company each claim that Alice M. York by the payment which she made upon the mortgage debt became subrogated to the rights of the mortgagee to the extent of such payments.

The claim of Alice M. York and her children is that there was no subrogation, but that such payments extinguished the mortgage debt to that extent.

On the part of the Wick Banking & Trust Company it is further claimed that the life estate of the said Alice M. York is a legal estate and that its judgment operated as a lien upon such estate from the date of its recovery.

It is further suggested by said Wick Banking & Trust Company that the estate which it claims that Alice M. York obtained in said premises by the payments made on the mortgage indebtedness was merged in the life estate, and that, therefore, its judgment is a lien upon all the estate which she has in these premises.

The American Surety Company claims that no part of the estate of Alice M. York in these premises is subject to any lien by reason of the judgment obtained by the Wick Banking & Trust Company, and that, in any event, only her life estate could be subject to any such lien, but that the estate which she obtained in the premises by her payments made upon the mortgage debt is an equitable estate only; that it is not subject to levy of execution but is a proper subject of attachment and that its attachment creates a lien upon such estate from the date of the levy of such attachment.

The further claim of the plaintiff is that the estate which Alice M. York has in the premises, in any event all the estate which she has other than her life estate is an equitable estate only, which is not' subject to be levied upon either by execution or attachment.

It will thus be seen that the first question for consideration is, whether Mrs. York obtained any estate in these premises by by her payments made upon the mortgage debt. If she did, was the estate so obtained by her merged in her life estate? If not, can such estate be reached either by the levy of execution, or attachment ?

Before entering into a discussion of the questions already suggested, it should be said that we find that the order made by the probate court, upon the settlement of the accounts of Mrs. York, is a proper foundation for the bringing of the present suit. Section 544, Revised Statutes, provides that orders for the payment of money made by the probate -court may be enforced by execution or otherwise as provided for the enforcement of judgments of the court of common pleas. Section 5464, Revised Statutes, provides that judgments in the court of common pleas may be enforced by action, such as the present case is.

Mrs. York is one of tbe makers of tbe note held by the Colonial National Bank, and is also one of the makers of the mortgage held by that bank as security for the payment of the note; and it' is urged that whatever payments were made by her upon this indebtedness, were simply payments upon her own debt, and that she acquired no other interest in the mortgage, by making such payments, than the right to have the indebtedness reduced by the amount of such payments. This would, of course, be true if she were still the owner of the premises; it would not' be true if the deed made by her and her husband had expressly provided that the mortgage debt should be paid by the grantee.

Authorities are numerous, that where a grantor pays all or a part of a mortgage debt the payment of which is in terms assumed by the grantee of the mortgagor, such mortgagor is subrogated to the rights of the mortgagee in the mortgage to the extent of such payments. Sheldon on Subrogation, Sec. 3; Kinnear v. Lowell, 34 Me., 299; Henson v. Reed, 71 Texas, 726; Baker v. Terrell, 8 Minn., 195.

In this case, it is said in the syllabus:

“A mortgagor who conveys the land subject to the mortgage and who afterward, even voluntarily, pays the mortgage debt, is entitled to be subrogated to the rights of the mortgagee against the land.”

Where the vendee of mortgaged premises assumes the payment of the mortgage debt, the relation between him and the mortgagor is that’of principal and surety. Poe v. Dixon, 60 O. S., 124; Sheldon on Subrogation, Sec. 207; Johnson v. Zink, 51 N. Y., 333; Ohmer v. Boyer, 89 Ala., 273; Averill v. Taylor, 8 N. Y., 51.

A surety, being required to pay the debt of his principal, is subrogated to the rights of the creditor in any securities pledged for the payment of the debt. 24 A. & E. Ency. of Law, 197, 1st Ed.

The authorities are not uniform, that where a mortgagee conveys to a grantee the mortgaged premises subject to the mortgage, that payments made by the mortgagor upon the mortgage debt entitle the mortgagor to be subrogated to the rights of tbe mortgagee, though the weight of authority, and, as we think, the better reason is in favor of such subrogation. The reasoning is, that the grant of premises subject to a mortgage constitutes a setting apart of the mortgaged property for the payment of the debt, and that, therefore, the mortgagor is entitled to have the propertjr first subjected to the payment of such debt. It is true that the mortgagor is not relieved from liability upon the indebtedness, but, as between himself and the grantee, he is entitled to have the debt paid out of the avails of the mortgaged property, and, as is well said in the case of Baker v. Terrell, supra:

“Suppose, however, that the mortgagor, in order to avoid costs, and to save himself the inconvenience attending a threatened or actual litigation, should pay off or purchase the mortgage, why should he be in a worse condition, as regards the right to have the incumbrance charged upon the land, than he would be if forced by an action to pay? Are the undoubted equities which attend the one course wholly lost by pursuing the other? What difference can it' make to the grantee of the land subject to the incumbrance, and why should he, in any possible contingency, get the benefit of any one’s purchase of what was an acknowledged charge upon his lands? * * * It is objected that in such cases the mortgagor, if he pays, is "only cancelling a debt of his own. This is true in one sense, but yet the debt is one of which, as between him and a grantee who takes subject' to the mortgage, the land is pledged to the payment, before calling on the mortgagor.”

In the present case, the deed made by Mrs. York and her husband was a quit-claim deed which, in effect, is a deed of the premises subject to this mortgage 'and any other lien which existed upon the property. The grantee, by the terms of the deed, got only such interest as the mortgagor had, and the interest of the mortgagor was subject to this mortgage. It follows, that the interest which the grantee obtained by the deed was the premises subject to the mortgage, and if the grantor pays off the mortgage debt he must either be subrogated to the rights of the mortgagee or his payment must be held to be a gift to the grantee. In this case Mrs. York had an interest by reason of her life estate, which made it important for her that the mortgagee should not foreclose -the mortgage; and she might very well have paid the mortgage debt or a part of it to avoid such foreclosure. By doing so, no wrong is perpetrated against the grantee, though she be subrogated to the rights of the mortgagee. The grantees still get' just’ what their deed gave them, the ownership of the premises subject to the life estate and the mortgage. Their rights are neither increased nor diminished by such payment of the mortgage debt. It is exactly equitable and just that the grantor, when paying, under the circumstances which existed in this ease, should be subrogated to the rights of the mortgagee, and we hold that Mrs. York was so subrogated and thereby acquired an equitable interest in this property.

The question then follows: Did. the equitable interest thus acquired by Mrs. York become merged in her life estate? Her life estate was a legal estate, she was in possession under it, and the general proposition is, where one who is the owner of a legal estate acquires an equitable interest in the same property, such equitable interest will be merged in the legal estate, and so the whole estate will be held by the legal title; but this rule is subject' t-o exceptions.- Where it is to the interest of one holding -a life estate and who subsequently acquires an equitable estate in the same premises, that the latter should not merge in the former, it will be held that there is no merger, and one who has an interest in mortgaged premises, which premises are primarily liable for the payment of the mortgage debt, may, for his own protection, pay and be subrogated to the rights of the mortgagee, and the mortgage kept alive for his benefit. Sheldon on Subrogation, Sees. 49, 50, 51 and 54.

In the last named section this language is used, under the heading—

“Tests l)y which merger is determined. — Nor is. it necessary that the intent to keep the mortgage alive should have been manifested at the time of the payment otherwise than by taking an assignment of the security; unless there appears to have been an intention to extinguish it, it will be taken t’o be subsisting or extinguished, as the interest of the partj may require. The merger of a charge in the inheritance will not be presumed, if this would be contrary to the interest of the owner of both the charge and the inheritance. The melger is prevented, and the charge or mortgage upheld, whenever there is a strong equity in favor of it, but never where it is not for an innocent purpose. If they are held in different rights, there will he no merger. When a charge on an estate becomes absolutely vested in the owner of the inheritance, the tests usually applied for ascertaining whether the charge has merged, are: first, whether there has been an actual expression of intention to that effect; secondly, whether the acts done by the owner of the estate are .only consistent with the maintaining of the charge, and, thirdly, whether it is for the interest of the owner that' the charge should not be merged in the inheritance.”

Numerous authorities are cited in support of this language of the text. Indeed, the general doctrine is, that a merger will be held to arise only where it is to the interest of the holder of t'he legal estate that there should be a merger, and we hold, in this case, that there was no merger of the equitable estate held by Mrs. York on account' of payments made by her upon the mortgage debt, with her life estate.

It is urged, however, that the attachment issued on the 25th day of June, 1900, in favor of the American Surety Company, and levied upon these premises, created a lien upon all the interest of Alice M. York, whether such interest be equitable or legal.

Section 5524, R. S., provides that- — ■

“The order of attachment shall be directed and delivered to the sheriff, and shall require him to attach the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, money, and effects of the defendant in his county, not exempt by law from being applied to the payment of plaintiff’s claim, or so much thereof as will satisfy the plaintiff’s claim.” * * *

Section 5528, R. S., provides that—

“The sheriff shall execute the order of attachment without delay; he shall go to the place where the defendant’s property is, and there, in the presence of two freeholders of the county, declare that, by virtue of the order, he attaches the property at the suit of the plaintiff.” * * *

We know of no case where it has been held that an equitable estate in lands can be reached by the levying of attachment. The statutes authorize the attachment to be levied upon the lands and tenements of the defendant. Surely the interest in these premises which Mrs. York acquired by the payments made by her upon the mortgage debt did not make her the owner of any lands or t'enements, and we hold, therefore, that the American Surety Company secured no lien upon this equity of Mrs. York by virtue of its attachment. During the pendency of this suit the Surety Company has obtained a judgment in the action in which the attachment was issued.

On behalf of the Wick Banking & Trust Company, it is urged that its judgment, recovered on the 27th day of November, 1899, created a lien in its favor upon Mrs. York’s equitable interest in these premises.

Section 5374, R. S., provides that—

“Lands and tenements, including vested interests therein, and permanent leasehold estates renewable forever, * * * shall be subject to the payment of debts, and shall be liable to be taken on execution and sold, as hereinafter provided.”

Section 5375, R. S., provides that — ■

“Such lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered.” * * *

What has been said in reference to the statutes as to the effect of an attachment upon the interest of Mrs. York in these premises is equally applicable to this claim of the Wick Banking & Trust Company, and we hold that since the equitable interest of Mrs. York in these premises did not constitute them the lands or tenements of Mrs. York, the judgment constituted no lien upon them as against such interest. The execution upon the judgment, having been levied after the bringing of this action, is inferior to the rights of the’ plaintiff herein.

From what has been said, it follows that the only creditor who has acquired any interest in the equitable estate of Mrs. York in these premises is the plaintiff.

Mrs. York, being a widow, is entitled to exemptions to the amount of $500, in lieu of a homestead.

The order of the court therefore is, that unless Alice M. York shall within ten days after the entering of this decree pay to the Colonial National Bank the amount still due upon its mortgage debt, and pay to the plaintiff herein the difference between the amount so paid to the Colonial National Bank and the amount which would now be due upon the mortgage debt if she had made-no payment thereon; and to pay to the Wick Banking & Trust Company the amount due upon its judgment; and pay to the American Surety Company the amount due upon its judgment; and pay the cost's of this action; said premises shall be appraised, advertised, and sold by the sheriff of this county as upon execution at law, and out of the avails of such sale he shall pay, first, the costs of this action; second, whatever taxes stand assessed against said premises; third, to the Colonial National Bank the amount still due it upon its mortgage debt; fourth, to the defendant, Alice M. York, the sum of $500 in lieu of her homestead exemption; fifth, to the plaintiff herein the. difference between the amount paid the Colonial National Bank and the entire mortgage debt, if no payment had been made upon it, less $500, and not' in excess of the plaintiffs claim; sixth, to the Wick Banking & Trust Company the remainder of the avails of such sale not exceeding the amount of its judgment', with interest; seventh, to. the-American Surety Company whatever balance may remain, not exceeding the amount of its judgment; eighth, whatever balance shall then be lef-t' to the defendants, Alice S. M. York, Milton York and Blanche York.

O. Q. Pinney and A. A. Stearns, for plaintiff in error.

E. O. Schwan, John G. Hutchins and Sheldon Paries, for defendants in error.

The defendants, the Wick Banking & Trust Company, the American Surety Company, Alice M. York, Alice S. M. York, Milton York and Blanche York, each severally except to this decree.