author: Day, J.

text:
    (Third Circuit—Logan Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Day, Price and Norris, J J.
    THE C., C., C. & ST. L. RY. CO. v. COMMISSIONERS OF LOGAN COUNTY, AUDITOR, et al.

      Ditch — Grossly unjust assessment — Injunction proper remedy—
    (1). By the provisions of section 4491, R. S., an action is authorized, and may be maintained to enjoin the placing upon duplicate and collection of an assessment made to pay the cost and expense of locating and constructing a ditch improvement, on tne single ground of gross injustice in the apportionment; and if the fact of gross injustice is established on the trial, the plaintiff is entitled to relief by injunction.

      Same — Assessment of party disturbing natural drainage—
    (2). On the trial of such issue, evidence tending to show that plaintiff wrongfully erected obstructions and destroyed the natural drainage, and thereby created the necessity for better drainage and increased the cost and expense of securing it, is competent as bearing on the question of gross injustice in the apportionment of sucn cost and expense'.

      Excessive assessment between parties benefited — Remedy—
    3). If,upon such trial,"it is established that plaintiff derives a substantial benefit from the improvement, it is not a gross injustice to apportion some part of the necessary cost and expense of the improvement to the plaintiff. When substantial benefit is made to appear, the remedial right changes, and it becomes a proposition, not of gross injustice, but of equitable apportionment between persons mutually benefited; and in such case the party must pursue such remedy as is provided for by law, and is not entitled to the extraordinary remedy of injunction.
    Appeal from the Court of Common Pleas of Logan county.
   Day, J.

The purpose of the action is to enjoin the location and construction of the so-called “Ward Ditch’’, and the placing on the duplicate for collection of an assessment ordered to pay for the labor and expense of locating and constructing said ditch. A perpetual injunction is prayed. The right to this relief, is based solely on the grounds that the proceeding for the location of the ditch was and is illegal, and that the plaintiff is not at all benefited by it, so that to enforce the order and the assessment reported, as to it, would be a gross injustice. No error or irregularity in the proceedings to locate and establish and construct the ditch is claimed or insisted on. It is practically conceded that, in respect to the proceedings for the location, they were distressingly correct and free of even technical error; and only the claim is asserted and relied on that to enforce the result of the proceeding, and the assessment apportioned to plaintiff, would, in and of itself, be illegal and a gross injustice, on the theory that plaintiff derives no benefit whatever from the proposed improvement. The plaintiff’s entire case is put in issue by an answer, in form a general denial of the averments of the petition,

The plaintiff appeals to the broad and equitable provisions of section 4491, Revised Statutes, and basing its entire case.thereon, prays relief in accordance with its provisions. We think the appeal is well based and must be allowed, and the contention of the parties disposed of under the provisions of that section. The provisions of that;section, relied on by plaintiff as authorizing^its action, are as follows: Section 4491, Revised Statutes:

“The court in which any proceeding is brought to recover any tax or assessment paid, or to declare void the'proceeding to locate or establish any ditch, or to enjoin any tax or assessment levied or ordered to be levied to pay for the labor and expense aforesaid, shall, if there is manifest error in the proceedings, allow the plaintiff in the action to show that he has been injured thereby, * * * and without finding error, the court may correct any gross injustice in the apportionment, made by the commissioners; the fcourt shall, on final hearing, make such order in the premises as shall be just and equitable, etc.”

The section invites the plaintiff’s action, and clearly authorizes relief under two heads: viz, in case of manifest’jer-ror in the proceeding, with an affirmative showing of injury; and, without finding error, in case of any gross injustice in the apportionment of the cost and expense. Nor are the remedies here provided, or rather permitted, anything new in our jurisprudence. Additional authority is not conferred, by the provisions of the section, upon the courts; but it only puts in form of statutory law, and brings into our drainage statutes, and makes available in ditch proceedings, rules that have, from time immemorial, obtained in courts of equity. Yet the provisions of the section are valuable in drainage matters, as they somewhat modify the prohibitory provisions of the next preceding section, 4490, and may be regarded and accepted as express legislative sanction, permitting the courts to dispense partial justice, even in a ditch proceeding', by correcting and relieving against gross injustice, without being obliged to first find the proceedings irregular or erroneous. In the absence of both the enumerated grounds, however, manifest error with injury, and gross injustice, no relief is provided, and, of course, none can be afforded in this form of action.

The plaintiff did not show, or attempt to show, manifest error in the proceeding, but confined its efforts to the task of demonstrating that there was gross injustice in the apportionment of the expense of the improvement; thus raising and presenting for decision the single proposition: Was the apportionment of the cost and expense of the improvement, as made by the commissioners, grossly unjust to the plaintiff? The affirmative of the proposition is with plaintiff, and to entitle it to prevail, it must meet the requirements of its position and sustain its contention by a preponderance of all the evidence. The plaintiff’s efforts were all directed to the establishing of the fact that its property, the railroad bed and track, would not be at all benefited by the construction of the improvement, but on the contrary would suffer damag3; and the trend of all its testimony was to that effect. It was shown that the plaintiff company is assessed for the improvement, in round numbers, one hundred and sixty dollars. Four persons only are reported as benefited, and the sum apportioned to plaintiff, is about one-third of the whole amount, In all this plaintiff proceeds on the theory, that if a large portion of the cost and expense of the ditch is assessed and apportioned to it, and it is not to any extent benefited by the making of the improvement, the apportionment must of necessity be a grossly unjust one. In an ordinary case, where relative benefits, only, are in question, the theory of plaintiff, is most likely correct; and upon such situation being made to appear satisfactorily, the proper relief to be administered would be clearly indicated. The right to such relief, however, is based altogether on the assumed fact, that there is substantially an entire absence of any benefit whatever inuring to the plaintiff from the improvement; and if it shall appear from a consideration of all the evidence, that there was some substantial benefit to the plaintiff company, resulting from the construction of the improvement, so that plaintiff was properly assessed in some amount for the payment of the expense of its construction, unless the benefit shown appears to be so infinitesimal and trifling and the assessment so large, that the disparity between the two, prima facie, evidences wrong and injustice, plaintiff has failed to sustain its contention, and the finding and judgment must be against it. In such case .the question ceases to be one of “gross injustice in the apportionment,’' and becomes the ordinary one of, is the apportionment fair and equal; and that question is conclusively presumed to have been properly adjudicated and settled in the original proceeding for the establishment of the improvement, to which the plaintiff was a party. It is only gross injustice in the apportionment that can be corrected and relieved against in this form of action, An apportionment somewhat unequal, perhaps believed to be somewhat unjust, viewed alone in the light of relative benefits to be derived, would not supply the situation described in the section, or authorize the relief therein pointed out, viz: the correction of a gross injustice in the apportionment. In such case the situation would be that of an apportionment believed to be unequal and not entirely equitable, in which the party feeling aggrieved, would have a complete and adequate remedy at law, by appeal or error; andcwould be denied the extraordinary remedy of injunction. See Haff v. Fuller, 45 Ohio St., 495; Laylin v. Commissioners, 46 Ohio St., 663.

The evidence bearing on the proposition involved in the case, was directly conflicting. Witnesses called and examined by plaintiff, with one exception, testified that the plaintiff’s railroad property was not benefited, in the least, by the improvement; while witnesses on behalf of the defense, including one introduced by plaintiff, gave evidence that the railroad embankment and road bed, was certainly and most directly benefited. The weight of this evidence is, we think, to the effect that the road is benefited to an extent — the precise or proximate .extent was not developed,but sufficiently so to satisfy the court that it is not a question of gross injustice at all, but only a contention between several mutually benefited parties, as to whether the cost and expense of creating the benefits, is fairly and equitably apportioned between them.

Thus far we have dealt with the case altogether from the point of view urged by plaintiff, and have endeavored to make proper disposition of it on the plaintiff’s theory alone.

We think, however, the case is broader than plaintiff is willing to concede, and has in it some material facts not-commonly found in an ordinary ditch proceeding; material and unusual facts, that seriously affect the relative position of the parties to be charged with the .cost and expense of making the necessary improvement in the drainage of their respective premises, and which are peculiarly pertinent, and not to be left out of consideration, especially as bearing on the question of gross injustice in the apportionment. In considering and determining the proposition, if a gross wrong or injustice has been done or is proposed, we are not of opinion that we are limited and confined to the evidence, alone, concerning the relative benefits resulting to each party, but may also, with entire propriety, receive and consider as competent, any evidence tending to show that an increased necessity for the improvement, and as well, a largely increased cost and expense of making it, was in some part occasioned and made necessary by the improvident or wrong acts and conduct of one of the parties, in improperly and purposely obstructing the natural flow of the water; and also all other relevant and pertinent facts and circumstances, having a bearing and tending to throw light on the proposition of wrong and absolute injustice. When the inquiry is thus enlarged and extended to cover the whole ground, with all the pertinent facts considered, so as'to correctly ascertain the relation and position each party sustains to the needed improvement in drainage, the cost and expense of it, the resulting benefits and the equitable apportionment of such cost and expense between the interested parties, it appears, as the undisputed fact, that the tract of country to be drained by the improvement in question, was, in its primal condition, a low swampy marsh, with a slight but distinct fall to the southwest, in ■ which direction its waters.naturally flowed, finding an outlet into Blue Jacket creek. Plaintiff’s railroad was' constructed directly~across the swamp, dividing it and leaving a portion on the north side of the railroad. This railroad was gradually converted into a solid embankment by being filled in, from time to time, with earth, timbers, gravel, etc., until, with the exception of an open culvert, some five or more feet in width, near the point where the present ditch is to pass through the said embankment, a complete and substantial dam was created, preventing the flow of the waters of the north part of the swamp to their outlet, except through the small culvert just named, Five or six years ago, this culvert was filled and entirely closed by the plaintiff company, and the dam, so far as the plaintiff is concerned, was made absolutely complete. Prior to this, water having a natural outlet elsewhere, was, by the plaintiff company, diverted from its natural course, and carried into the swamp on the north side of the railroad, and was by the making of the solid embankment, left, with all the othe„r water naturally collected there, without outlet or means of escape, except by the slow process of evaporation. Much of the necessity for the improvement, and very much of the total expense of the improvement, was directly occasioned by the obstruction to the natural flow of the water perpetrated by the plaintiff; and in view of that fact, the suggestion naturally presents itself: Is it in the nature of a gross injustice, that the plaintiff company, in a strictly regular and lawful proceeding, is required to bear a large share of the expense necessarily incurred in removing the obstruction to the natural flow of the water, created by itself, and in rebuilding a proper and sufficient outlet for the dammed waters of the swamp. It does not look wrong — certainly it is not gross injustice, to require the plaintiff to sustain a portion of the burden of righting a wrong by it perpetrated against the public and the petitioners for the ditch, in the creation of the dam, and the diverting of the water from its natural course.

West & West, and Judge Dye, for Plaintiff.

S. H. West, for Defendants.

We do not perceive any gross injustice, or any kind of injustice, in the matter, and the prayer of the petition is denied, at costs to the plaintiff.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    THE FIRST NATIONAL BANK OF TOLEDO v. THE CENTRAL CHANDELIER CO. et al.

      Evidence — Oral declarations of parties to written instrument before execution — Admissibility—
    (1). Oral declarations of the parties to a written instrument made on or before the execution of the same, are not admissible in evidence to show an intention or purpose not therein expressed, although the ambiguity in the instrument may make the purposes or intentions of the parties uncertain.

      Same — Title to property — Conveyance or pledge — Admissibility of oral declarations — Writing explaining character of written instrument — Admissibility of oral declarations to further qualify—
    (2). Where a transaction affecting title to property evidenced by a written instrument is under investigation in a court of equity, and the question to be determined is whether an unconditional conveyance of the title or a mortgage or pledge to secure a loan was intended, evidence of oral agreements and conversations of the parties prior to and contemporaneous with the execution of the instrument will be admitted for the purpose of determin- ' ing the true character of the transaction. But quaere, where the instrument is accompanied by a writing, which has no mark of incompleteness, but seems to give a full record of the transaction and the terms upon which the property conveyed in the instrument should be held by the transferee or redeemed by the transferer — will oral evidence be admitted also tending to show a different intent than that expressed therein?

      Promise — Express promise to repay money—
    (3). To constitute a transfer of property, absolute on its face, a pledge merely, it is not necassary that an express promise on the part of the transferer to repay the money should appear.

      Conveyance or pledge—
    (4), Facts under whicn a transfer of stock, absolute on its face, was held to be a pledge of the same merely.
   PARKER, J.

There are a great many parties defendant in this case, and among them are F. P. Chaplin and Ármina D. Isherwood. A part of the purpose of the action is to determine the ownership of stock in the Central Chandelier Company and enforce the statutory liability of stockholders. The issue which is presented to us here is between F. P. Chapin and Mrs. Armina D. Isherwood, and the stock in question .about which these issues of ownership and liability arise ■consists of twenty-five shares of the stock of defendant company amounting to $2,500.

It íb conceded that the stock certificates for these twenty-five shares of stock were issued originally to Mr. Chapin. They consist of three certificates: two for ten shares each and one for five shares, issued prior to the 3d day of May, 1893, and it is conceded that Chapin owned this stock up to that date. Chapin avers that he then sold and transferred the same to F. P. Isherwood, from whom Armina D. Isherwood derived whatever title she may have as residuary legatee of his estate under his will. Mrs. Isherwood contends that the stock was not sold to Mr. Isherwood, but was pledged to him to secure a loan of $2,500 which he made to Chapin on the date of the transfer, viz., May 3, .1893. It has been determined in Ohio that a pledgee of stock is not bound by the statutory liability. The assignments on the back of these certificates are signed by F. P. Ohapin; there is a blank form and a space left for the name of the transferee and spaces left for the dates, etc., which were not filled in; it appears that they were never filled up, and that no transfer was ever entered on the books of the Oentral Chandelier Company.

Contemporaneously with the execution of these blank assignments, and as a part of that same transaction, a certain paper was executed in duplicate by the parties, one copy of which was held by Chapin and the other by Isherwood, the latter being attached tc the stock certificates and placed by Mr. Isherwood among his effects, where it was found by his executors. The exact scope and meaning of this paper it is somewhat difficult to determine from its terms alone. It is contended on behalf of Chapin that it clearly imports a sale with a conditional right or option of re-purchase reserved. On the part of Mrs. Isherwood it is contended that it shows, if not clearly, yet sufficiently, that the stock was placed in pledge to secure a loan of $2,500. It is conceded by both that upon the transfer of the stock Mr. Isherwood let Mr. Chapin have $2,500. This instrument is written upon a letter-head of the Bee Company, in which Mr. Chapin at that time had an interest and of which he seems to have been manager, The paper was prepared by Mr. Chapin with the assistance of a friend. Mr. Isherwood appears to have had no part in that, Omitting the heading of the Bee Company, it reads as follows:

“Toledo, Ohio, May 6, 1893.
“For and in consideration of $2,500 paid to me this day by F. P. Isherwood I have assigned and do transfer to him 25 shares of stock in the Central Chandelier Company amounting to $2,500, full paid and non-assessable, and on which.I guarantee that he shall receive at least 6 per cent, per annum payable annually.
“F. P, Isherwood agrees to allow said Chapin to have the option of redeeming said stock when be can do so, by refunding the amount of $2,600 to said Isherwood with interest.
“F. P. Chapin,
“F. P. Isherwood.”

The words ‘‘payable annually” were added at the instance of Mr. Isherwood; the remainder of the paper is typewritten, and the words just mentioned were written in by Mr. Chapin.

On the part- of Mrs. Isherwood parjol evidence was introduced on the hearing of conversations between Mr. Isherwood and Mr. Chapin at the time of the execution of these papers and blank assignments and of the turning over of the stock to Isherwood by Chapin. Some parts of' these conversations are testified to by har as having transpired prior to the execution of the papers, and some as having taken place subsequently thereto, but all on the same day ■ and as a part of the same transaction. Some of these conversations as testified to related to the terms upon which the money was to be exchanged for the stock, and tend to show that the money was loaned and the stock taken in pledge as security for the re-payment of the loan with interest.

Other parol evidence was introduced on behalf of Mrs. Isherwood of subsequent declarations and transactions on the part of Chapin, tending to show that he regarded the transaction as a loan with stock placed in pledge as security, and that he claimed to be the owner of the stock after the transfer referred to. The introduction of this oral evidence was objected to by Chapin, and at the close of the testimony he moved'that it be stricken out and disregarded. We shall now pass"upon this motion. Counsel for Mrs. Isherwood contends that this oral evidence is admissible on various grounds. First, that it is admissible because there is an ambiguity[injthe writing which may be cleared up by such oral proof under the rules relating to that subject; that the contracris’’sojunskillfully drawn as to render the meaning or intention of the parties obscure and doubtful, and that this evidence is admissible to show the surrounding circumstances so that thereby the court may be aided in putting a construction upon the instrument.

We conclude that the evidence of oral declarations of the parties to these instruments, made at or before their execution, is not admissible for the purpose of showing an intention or purpose not therein expressed, though ambiguity in the instrument may make the purposes or intentions of the parties uncertain. We also conclude that it is not admissible on the ground that it may put the court' in possession of facts that will aid it in the construction of the instrument. We think that is settled in the case of Tuttle v. Burgett’s Adm’r., 58 Ohio St., 498, and by many other decisions. I will read the fourth syllabus in this case:

“The oral declarations of a party to a written instrument, made before or at the time of its execution, of an intention or purpose not therein expressed, or different from that to be derived from its terms, are not within the rule which permits extrinsic evidence of the situation of the parties and of the surrounding circumstances when the instrument was executed, and are inadmissible in an action on the instrument where its reformation is not sought.”

I may say that here there is no prayer for reformation, and no facts stated in the pleadings such as afford grounds for reformation — mo allegation of fraud or mistake in the preparation of the instrument or reduction of the agreement to writing; nor is there any allegation that on account of the mutual confidence reposed by the parties in one another any part of the agreement was not reduced to writing. The author of Jones on Mortgages, in the course of his discussion of the law relating to the admission of parol evidence at law and in equity to show that a deed absolute on its face is in fact a mortgage, makes this statement: (I read the closing paragraph of section 282).

“Parol evidence is admissible in equity to show that a deed absolute in form is in fact a mortgage, not because the rules of evidence are different in equity from wbat they are at law, but because the jurisdiction and power of the courts with reference to dealing with the facts presented are different. The rules of evidence are the same in both courts.”

From this it would seem that even if reformation need not be prayed for, allegations should be made of facts warranting the interposition of a court of equity on some one of the well-established grounds upon which such courts proceed in going behind written contracts.

It is contended that this evidence is admissible on the independent ground that, where a transaction affecting the title to real or ether property, evidenced by a deed or other written instrument, is under investigation in a court of equity,and the question to be determined is whether an unconditional conveyance or transfer of title, or a mortgage or pledge to secure a loan was intended, the court will admit evidence of the oral agreements and conversations of the parties prior to and contemporaneously with the execution of the written instrument, though varying or contracting the terms thereof, for the purpose of determining the true character of the transaction. A majority of the court- are of the opinion that the testimony of Mrs. Isherwood as to the conversations between Mr. Isherwood and Mr. Chapin before and at the time of the execution of these instruments is admissible under the rules and authorities relating to this subject.

I cannot reconcile my mind to this view, though I concurred therein with my brethren at the time the testimony was received. It is clear that a deed absolute upon its face may be shown by oral evidence to be a mortgage; but a deed is an instrument whereby title is conveyed; it usually has but few of the elements or terms of an executory agreement —- often it has nqne. Such terms or-elements are not necessary to its completeness as an instrument of conveyance. Evidence of contemporaneous agreements may be admitted in most cases on the ground that the deed does not purport, either expressly or by necessary implication, to- giv3 the whole record of the transaction or the terms of the agreement as to events to transpire in the future. The rule as to showing that there was a contemporaneous transaction and agreement which had the effect of converting the deed into a mortgage, might be applied to the assignment of these stock certificates if there were no other written evidence of the agreement, though I doubt if these rules are applicable to transactions of this character at all. But here we have an independent writing which bears no mark of incompleteness,, but seems to contain a full record of the transaction and the terms upon which the stock might be held by the transferee or redeemed by the transferer. To receive evidence of prior and contemporaneous conversations between the parties to this instrument, tending to show a different intent or purpose than that expressed therein, and tending to contradict the writing and import into it distinctly new terms, seems to me to violate the plain and well settled rules of law upon this subject. Yet I am bound to say that a careful reading of the authorities, (and we have examined those cited by counsel, and many others in addition thereto), has shaken my faith somewhat in this position, though they leave me unconvinced that I am wrong.

I call attention especially to the case of Slutz v. Desenburg et al. reported in the 28 Ohio St., 371. In that case a deed in the usual form was executed and delivered and the grantee took possession under it. At the same time and as a part of the same transaction an article of agreement was prepared and signed by the parties, as to the proper construction of which they afterwards differed An action was instituted to redeem. The deed and this article of agreement — which appears to be complete and to set forth all the terms of the agreement of the parties — were introduced in evidence, but in addition thereto oral evidence was admitted of the conversations and declarations of the parties with respect to this transaction both prior to and contemporaneously With the execution of the writings. In the course of his opinion Judge Ash burn says — at page 378:

“The course of decisions in this class of cases indicates that courts are vigilant to discover whether a condition of defeasance in law or fact attaches to the deed absolute in form. To this end they scrutinize the prior pecuniary relations of the parties, each towards the other; contemporaneous acts bearing on the question; all after acts and admissions of the parties that are competent to be considered as evidence in relation to the transaction; any material in-adequancy of consideration, and the terms of any written agreement entered into by the parties.
“This brings us to a consideration of the- facts of this case as presented by the bill of exceptions, and an application of the legal principles we have been considering. It is proper to say that parol evidence may be received and considered, as tending to show the intention of the parties and the true character of the transaction.”

He then proceeds to discuss the matter as to the written agreement, and in that case, as I have pointed out- — ■ there was not only a deed absolute upon its face, but a written agreement between the parties which seemed to set forth completely the terms of the arrangement, and the oral evidence admitted was of the character that I have indicated; so that in that case, the admission of oral evidence seems to have received the approval of. the court, though it will be noted, upon examining the case, that nothing is said upon this point in the syllabus, and there appears to have been no, question raised or made upon the trial of the .case, or upon the submission of it- to the supreme court, as to the admissibility of this oral evidence, so that it may be that we. would be justified- -in treating, this as obiter dictum, The case just cited seems to me to go farther in that direction than any other authority that has been brought to our attention. It is said that this rule owes its origin to the tender regard of courts of equity for the rights of the borrower; that they are inclined to discover and protect a defeasance and right to redeem whether written expressly in an instrument or discovered otherwise. The rule is not invoked here by the one who is said to be the borrower; but we conclude that to the extent the rule has been established it may be invoked and given application at the instance of either the borrower or lender, either the grantor or the grantee, and that it is not a rule with which the borrower may play fast and loose, using it when it seems to him to be advantageous so to do and objecting to its use when its use may be to his disadvantage,

As to the admissibility of evidence relating to the relations of the parties and their contemporaneous acts as distinguished from their utterances bearing upon the transaction, and as to all subsequent acts and admissions, we none of us entertain any doubt. The motion to exclude will therefore be overruled as to all the evidence received over objection. Upon the whole evidence we have arrived at the conclusion that this stock was not purchased by Mr. Isherwood, but was pledged to him as claimed by Mrs, Isherwood. We think we should have arrived at this view without the aid of the testimony as to prior and contemporaneous conversations between Mr. Isherwood and Mr. Chapin; that the other testimony indicates a loan and a pledge rather than a sale with a right to redeem. And that this was the purpose and intent of the parties, we think was made clear by their subsequent conduct . with respect to this stock and their subsequent declarations upon the subject; but since we cannot be sure., that our . minds have not been biased and inclined to this construction.by this oral evidence,-we .deem it only fair and proper .to .rule that it shall be retained for consideration. The criterion upon which it shall be determined whether this is a conditional sale, as contended by the one party, or a pledge, as contended by the other, is laid down in this case' to which I have already referred—Slutz v. Desenburg et al. I need read no more than a part of the syllabi:

“A deed absolute in form, if intended to secure the payment of money, and the relation of debtor and creditor exists between the grantor and the grantee at the time of its execution, will be treated as a mortgage. But where no such relation exists, and the .grantor and grantee, at the time of the execution of the deed, agree in writing that the grantor shall have the option to re-purchase in a given time, at a certain price, the transaction is a conditional sale.”

There are illustrations of the application of this rule in the'cases cited in fhe opinion. Looking at the assignments we find them, as I have said, in blank. This affords some negative evidence that Mr, Isherwood did not expect to be invested with a full legal title, and, taken in connection with the fact that he never had the blanks filled with his name, and never took any other action towards putting himself in position to exercise or toward exercising the % rights of an owner of the stock, or in the direction of the affairs of the company, it affords somewhat persuasive evidence that he did not regard himself as the owner of the stock. On the other hand the voting of the stock from time to time by Mr. Ohapin, without, so far as the evidence discloses, consulting with Mr. Isherwood, or seeking any authority from him to do so, indicates, we think, very strongly that Mr. Ohapin regarded the stock as his own, subject only to the rights of Mr. Isherwood as pledgee. The provision in the contract .whereby Ohapin guarantees to Isherwood a dividend of not less than six per cent, payable annually, we regard as a stipulation for the payment annually for the use of that money; it amounts to a promise that six' per cent interest shall be paid annually on the $2,500; and that the parties so regarded it is shown by the subsequent payment by Chapin to Isherwood of what Chapin calls “interest” when he comes to give his testimony upon that subject.

In section 325, Jones on Mortgages, it is said:

“Evidence of the continuance of the debt, such as the payment of interest upon it, or the extension of the time of payment, is generally conclusive of the character of the original transaction as a mortgage.”

The clause wherein an option is given to Chapin to “redeem” upon “refunding” the $2,500 and interest, uses apt words to express a right of redemption. The “option” to redeem amounts to a “right” to redeem,and does not imply an option or right to decline to redeem and thereby acquire rights different from those of debtor and pledgor. The only feature of an ordinary pledge that is lacking is an express promise to repay the $2,500. As to that I call attention to the case of William Marshall v. Stewart et al., 17 Ohio, 356. The syllabus reads as follows:

“Where land is conveyed by an absolute deed, and the vendee at the same time delivers to the vendor a contract by which he agrees to reconvey the premises by a specified time, upon the re-payment of the purchase money with interest, the circumstances furnish presumptive evidence that the deed, although absolute upon its face, was intended as a mortgage, and it will be so held in equity.”

Upon reading this case it will be observed that there, as here, there was no express promise upon the part of the borrower to repay the money — the promise was upon the part of the lender that if the money was repaid with interest he would re-convey. So that the fact that there was no express promise upon the part of the borrower here we do not regard as conclusive upon the rights of the parties; the relation of debtor and creditor lender and borrower existed there, and we find that it existed here, and the law implies a promise to repay within a reasonable time. It is sufficient that the money was loaned and the stock pledged, as we find the fact to be, ■ — 'the time and terms of repayment need not be stated. Perhaps in the case at bar, on account of the provision that Mr. Chapin is to have the privilege of redeeming the stock when he can do so, the rule as to a reasonable time would be modified somewhat by the circumstances of Mr. Chapin ■ — that it amounts to an obligation to pay within a reasonable time, dependent somewhat upon his circumstances. This was a transaction between a nephew and an uncle who appear to have been on very good terms; the uncle appears to have been inclined to help his nephew, so that an arrangement of that kind under the circumstances, is not extraordinary.

Smith & Beckwith, for Plaintiff.

Doyle & Lewis, for Defendant Chapin.

Cummings & Lott, for Defendant Mrs. Isherwood.

The so-called guaranty that the stock is full-paid up and non-assessable, that it amounts to. $2,500, and that the transferee shall receive at least six per cent, per annum, payable annually, amounts to an undertaking that if the stock would not produce par and six per cent, (which it will be seen, would satisfy the debt, the amount of the debt being exactly equal to the amount of the stock), Mr. Chapin would pay the balance This defines Mr. Isherwood’s rights as pledgee and Mr. Chapin’s obligation as pledgor, and falls but little short, if it does not quite reach a promise to pay the $2,500 with interest.

Upon these conclusions as to the facts a judgment wil be entered dismissing Mrs. Isherwood with her costs, and against Mr. Chapin for the amount of this stock.


author: MARVIN, J.

text:
    (Seventh Circuit—Columbiana Co., O., Circuit Court
    January Term, 1899.)
    Before Frazier, Burrows and Marvin, JJ.
    MARIAN SAMPSELL, Administrator of the Estate of Ira E. Sampsell, deceased, v. JAMES A. SAMPSELL.

      Garnishment of executor as administrator for money coming to legatee admissible—

    (1). Under sec. 5531, R. S. of Ohio, process of garnishment may he served, in a proper case, upon an executor, or administrator with the will annexed, in a suit brought by a creditor of a legatee under the will, against such legatee, and such service will have the effect to bind such legacy for the payment of the judgment which the plaintiff in attachment shall recover, provided that upon final settlement of the testator’s estate there shall be money in the hands of such executor or administrator with which to pay such legacy.

      Same — Effect—
    (2). Where garnishee process has been served upon an executor or an administrator with the will annexed, in a suit brought against a legatee, and it appears from the answer of the garnishee that, though the estate has not been settled, there will upon settlement, be money in the hands of such executor or administrator with which to pay the legacy, a motion to ^dissolve the attachment and discharge tne garnishee, where the only ground for such motion is that a legacy so held is not subject to garnishment, should be overruled.
   MARVIN, J.

This is a proceeding in error brought in this court seeking to reverse the judgment of the court of common pleas.

The facts in the case are, that Marian Sampsell is the administrator of the estate of Ira E. Sampsell, deceased. That Catharine Sampsell and Rebecca C. Miller are administrators with the will annexed of the ¿state of Abraham S. Sampsell, deceased. The plaintiff in error was the plaintiff in the court of common pleas. She filed her petition claiming a judgment against the defendant on a contract made between her intestate and the defendant. The defendant is a non-resident of Ohio. The plaintiff filed her affidavit sufficient in form, and did all things necessary to entitle her to have garnishee process issued against Miller and Sampsell as administrators of the estate of Abraham S. Sampsell, deceased, and such process was issued against these administrators. To the order issued in such process Catharine Sampsell, as one of the administrators of the estate of Abraham S. Sampsell, deceased, made answer, stating that Abraham S. Sampsell died testate; that his will was admitted to probate; a copy of such will is attached to her answer, and made a part of it; that letters of administration with the will annexed were issued to herself and Rebecca 0. Miller upon the estate of said deceased; that the debts payable out of the estate, including costs of administration, funeral expenses, and widow’s allowance, are unknown, but estimated at $900.00; that the value of the personal property is not known, but estimated at $8,000.00; that the value of the real estate, exclusive of certain real estate named in the answer, and which is specifically devised in the will, i@ estimated at $300.00; that Catharine Sampsell, the widow of A. S. Sampsell, deceased, is now living, and is about eighty years of age, No account of administration has been filed, and no order of distribution of said estate has been made by the probate court. These garnishees have been sued as such in a case in said common pleas court by the same plaintiff against Homer A. Sampsell.

The will of Abraham S. Sampsell, deceased, so attached to, and made a part of, the answer of the garnishee, among its items, has, as the second item, this: ‘

“I give, devise and bequeath to my beloved wife in lieu of her dower all my property,' both personal and real or mixed, remaining after the payment of my debts, to use during her natural life or so long as she remain my widow.”

There is no evidence anywhere in the case as to whether the widow elected to accept the provisions of this will or not. In our view of the case, however, the result would not be different whether she elected to take under the will or not.

The eighth provision of the will is:

“I give to my son James A. .Sampsell $900.00, and tc my son Homer A. Sampsell $800,00.”

By a previous item in the will the testator bequeathed to a grandson the sum of $250.00, and there is a provision also that after the payment of debts and the legacies named, the balance of the property shall be divided equally among four of his children named, including James A. Sampsell, the defendant in this action, and Homer A. Sampsell.

From the answer of'the garnishee in connection with the will,it appears that the administrators of the estate of Abraham S. Sampsell have money in their hands in their said trust capacity, which will, at the expiration of the widowhood of the widow o.f said Abraham, whether such widowhood be determined by death or by marriage, be payable to the defendant. And though there may be a possible doubt as to the amount so to be paid, it is reasonably certain that the condition of the estate, in the hands of these administrators, is such that the entire bequest to James Sampsell of $900.00 will be paid.

Upon the filing of the answer of the garnishee a motion was filed to dissolve the attachment and discharge the garnishee, and such motion was by order of the court of common pleas sustained. The present proceeding is brought seeking to reverse such order.

The facts being as has been stated, the question presented, is, can this bequest to James A. Sampsell be subjected by garnishee process to the payment cf any judgment which the plaintiff may recover in this action.

It is urged in support of the order of the court of common pleas that, attachment being a statutory proceeding unknown to the common law, the remedy thereunder must be pursued strictly. That the proceeding is in rem in a case like the present where personal service is not made upon the defendant, so that judgment is good only in so far as it can be satis Sed out of tbe property taken. That the jurisdiction of the court extends only to property which has been attached, and authorities are cited in support of each of these propositions. There is no claim, however, in this case, that the proceedings have not, on the part of plaintiff, been in all respects regular and in conformity with the letter of the statute. Section 5530 of the Revised Statutes prescribes in what cases, and against whom, the order of garnishment may be issued, and that section reads:

“When the plaintiff, his agent or attorney, makes oath, in writing, that he has good reason to believe, and does believe, that any person, partnership, or corporation in the affidavit named, has property of the defendant in his possession’’,' — and I emphasize thÍ3 a little, 'to show that although the legislature were quite particular to name “person”,and then an artificial person, and a partnership, it forgot it when it got to the last pronoun and said in Ms possession, instead of Ms or its — '“describing the same, if the officer cannot get possession of such property, he shall leave with such garnishee a copy of the order of attachment”, etc.

It will be noticed that the order of garnishment may be issued against any person, partnership, or corporation, who has property of the defendant in his possession. Section 5538 provides that:

“An order of attachment shall bind the property attached from the time of service; and the garnishee shall stand liable to the plaintiff in attachment for all property of the defendant in his hands, and money and credits due from him .to the defendant, from the time he is served with the written notice mentioned in section fifty-five hundred and thirty. ”

The word “due,” as used in this section, clearly means “owing”. The language of the section, as will be noticed, is, “money and credits due from him to the defendant”, but that it means simply owing from Him to the defendant is clear, and has been adjudicated in Ohio. See The Ohio Auxiliary Fire Alarm Co. v. William Heisley, Trustee, found in the 7 C. C. Rep. 483; and The City of Newark v. Funk & Bro., 15 Ohio St., 462. The court, in the last case named, say: “It must be a subsisting claim, due or to become due.” That is, it must be something which is owing. We find no direct adjudication by the supreme court of this state upon the question of whether an administrator or executor may be garnisheed by a creditor of a distributee or a legatee, who will, upon settlement of the decedent’s estate, be entitled to receive some part of the funds in the hands of such executor or administrator.

In the case of Bently & Sons v. C. P. Strathers, found in the 5 Weekly Law Bulletin, at page 288, it is said by the district court of Trumbull county,

“The plaintiff undertook to garnishee money due the defendant from an administrator before an order of distribution was made.
“This cannot be done,as there is no indebtedness between the administrator and the defendant (who was an heir) until after .the order of distribution is made.”

No report of the case is made, and nothing is said about it except as above quoted. Whether the court would have made any distinction between the heir of an intestate and a legatee under a will does not appear.

Quite a good many authorities, to which we have given, attention, seem to make a distinction between the garnisheeing of an administrator for some debt due from a dis-tributee after the order of distribution is made and a like garnisheeing before such distribution is ordered. It seems, a little difficult to understand why such distinction is made, for the order of distribution in this state is simply an order that the administrator pay the balance in his hands to the parties entitled by law to receive the same, without determining who the parties are to whom payment is to be made.

In the case of Flora Arbaugh v. Joseph Myers, found in the 9 Weekly Law Bulletin, page 64, the court of common pleas of Pickaway county held, that money in the hands of a guardian might be attached for the debt of his ward. This, though not an authority binding on this court, seems to us to be well supported in the reported opinion, and the reasoning surely applies with as much force to a case like ■the one before us, as to the case then being considered by the court. By Section 5520, as already seen, the process may be issued against any person, corporation, or partnership having property of the defendant in his possession. Under similar statutes it has very generally, perhaps universally, been held that public officers, such as sheriffs, clerks of courts, and the like, could not be held as garnishees, and many similar holdings have been made in reference to executors and administrators, and apparently the reasoning in reference to the latter is the same as in reference to the- former. There is a very full discussion of the subject in Drake on Attachments, at page 21. In Brooks v. Cook, 8 Mass. 246, it is said by the supreme court of that state, that no person deriving his authority from the law, and obliged to execute it according to the rules of law, can be charged as garnishee in respect of any money or property held by him in virtue of that authority. To the same effect are Barnes v. Treat, 7 Mass. 273; Wentworth v. Whittemore, 1 Mass. 472, and other decisions by the same court. At section 477, of Drake on Attachments, it is said that the same considerations which forbid garnishment of executors, administrators, and guardians, require that all ministerial officers having official possession of property or money, should be exempt from that proceeding. The proposition, in substance, is that where money or property is held by one under the orders or authority of a court whose orders with reference to the disposition of such money or other property the one so holding it is under obligation to obey, it would be an unwarranted interference to allow another court to make an order as to the disposition of the same property. Drake, at section 245, states the proposition that property in the custody of the law cannot be attached, and gives the reasons for the proposition, using this language:

“To allow the course of legal proceedings to be interfered with in such a manner, would, of necessity, greatly protract litigation and produce continual conflict of jurisdiction.”

Our legislature, however, by the enactment of section 5531 of the Revised Statutes, has declared that these reasons are not sufficient, but that sheriffs, coroners, clerks, constables, master commissioners, marshals of municipal corporations, and other officers, shall be subjects of garnishment. The section reads:

“The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of a municipal corporation, or other officerhaving in his possession any money, claim, or other property of the defendant, or in which the defendant has an interest, shall bind the same from the time of such service, and shall be a legal excuse to such officers to the extent of the demand of the plaintiff, for not paying such money or delivering such claim or property to the defendant, as by law, or the terms of the process in his hands, he would otherwise be bound to do.”

It is difficult to understand, as is well said in Arbaugh v. Myers, supra, why, since all persons, corporations, partnerships, and officers, are proper subjects for the service of this writ, there should be held to be an exception as to executors and administrators. The language of section 5530 is broad enough to include,them, and although it is probable that they would not be held to be so included in that section, we are of the opinion that they are included in section 5531. Certainly they come, as it seems to us, within the spirit and reason of that section. It may be urged that the section should be interpreted as though it read, after the enumeration of the several officers, “or other like officers”. And this is doubtless correct. But “like” in what respect? In many respects there is great dissimilarity between the duties of the officers specifically named in the section. But they are similar in the one respect, to-wit, that of having money, claims, or othea: property in which another party has an interest. And in this respect it would seem that an executo'r having an estate in his hands, out of which, under an order of court, which must some day be made, there will be money to be paid to a legatee,may well be said to be “like” those specifically named in the section. Surely such legatee has an interest in the property in the executor’s hands, and no greater inconvenience can come to the executor, by making him the subject of garnishment on account of a debt due from such legatee, than must come to a sheriff, clerk of courts, special master commissioner, or other ministerial officer, in making him the subject of this process.

In the case of Shewell v. Keen, 2 Whart. 332, the supreme court of Pennsylvania, in discussing the question of whether a foreign attachment would lie for a legacy, used this language:

“An executor or administrator is, to a certain extent, an officer of the law, clothed with a trust to be performed under prescribed regulations.”

And again in the same-opinion this language is used:

“The case of an executor or administrator is analagous to that of a sheriff or prothonotary. He has funds in his hands as an officer or trustee authorized by law. ”

Attention has already been called to the decisions of the supreme court of Massachusetts to the effect that moneys in the hands of one deriving his authority from the law, and obliged to execute it according to the rules of law, cannot be charged as garnishee. After those decisions were made, however, a statute of that state was enacted — 'Revised Statutes, chap. 109, sec. 301, providing that any debt or legacy due from an executor or administrator, and any other goods, effects, or credits in the hands of an administrator or executor, may be attached by the trustee process. Under this statute it has been held in Cady v. Comey, 10 Metcalf 459, that a legacy could be attached, although there was not money in the hands of the executor to pay it, but that process should be stayed until real estate could be sold to raise the money, and the creditor in the attachment proceeding required to give an undertaking to refund, if necessary to pay' other demands. In Hoar v. Marshall, 10 Metcalf 251, under the same statute, it is held, that an executor is chargeable, in a trustee process, for the amount of the legacy in his hands at the time of service. In the case of Holbrook v. Waters, 19 Pickering 354, it is held that a legacy can be attached before an order of distribution is made.

In Wheeler v. Bowen, 20 Pickering 563, this language is used: “The interest of an heir in an estate in the hands of an administrator is liable to be attached before the order of distribution is made, even when it is uncertain whether there will be anything to distribute; the case being continued to give opportunity for the settlement of the estate.”

It will be noticed that the statute under which this decision was made does not provide that the portion of a dis-tributee of the estate of the decedent may be the subject of garnishment, but that any debt or legacy due from an administrator, and any other goods, effects or credits in the hands of an administrator, or executor, may. be attached by the trustee process. The provision then is, that a debt due from an administrator may be attached, and that a legacy may be attached, and that any other effects or credits in the hands of an administrator may be attached. But the supreme court of Massachusetts say, that the distributive portion to which one may be entitled out of an estate may also be attached, and that before any order of distribution.

On page 564 this language is used in the opinion:

“The object of the statute giving this remedy against executors and administrators is very obvious, it being designed to carry out more perfectly the means of enforcing the principle, that all the property of the debtor shall be made subject to legal process for the payment of his debts. Previous to the enactment of this statute, executors and administrators could not be summoned as trustees; and the effects and credits of others in their hands were beyond the reach of the attaching creditor. To remedy this evil the statute was passed, and it will be our duty to give such effect to it, so far as the provisions of it will admit, as will secure this object,”

Assuming that our supreme court, without section 5531, would hold, as seems to have been the holding in most of the states, that a distributive portion in the hands of an administrator, or a legacy in the hands of an executor could not be attached, for the reasons hereinbefore stated, the reasons being the sarpe as those given why such funds in the hands of a sheriff, clerk of court, coroner, constable, and the like, can not be so taken, does it follow that in giving a construction to sec. 5531 it would be held that it does not include executors and administrators, who are ministerial officers, and who, as the supreme court of Pennsylvania has said, in the case to which attention has already been called, have duties which are analagous to those of the prothonotary or the sheriff? Exactly the same reasons exist for including executors and administrators as exist for the including of the other officers named in the statute, and the same reasons which would make it troublesome and involve difficulties if it be held that executors and administrators may be held to answer as garnishees, exist as to the requiring sheriffs, coroners, clerks, and the like, to be held to answer as garnishees. The case of Woodworth v. The State, 26 Ohio St., 196, is instructive on the proper meaning to be given to the words “or other officers”. In addition to authorities already cited, attention is called to the following: Stratton v. Ham, 8 Indiana, 84; Palmer v. Noyes, 45 N. H., 174; Fenton v. Fisher, 106 Pa. St., 418; Simonds v. Harris, 92 Indiana 505; The City of Newark v. L. S. Funk et al., 15 Ohio St., 462.

Carey, Boyle & Mullins, for Plaintiff in Error.

W. (?. Wells, for Defendant in Error.

Entertaining these views, we hold that there was error on the. part of the court of common pleas in sustaining the motion to dismiss the attachment and release the garnishees, and for these reasons the judgment of the court of common pleas is reversed, and the cause remanded to that court for such further proceedings as are provided by law.

The same reasoning applies to No. 16, the case of Marian Sampsell v. Homer A. Sampsell, and for these reasons the judgment in that case is reversed and the cause remanded.


author: NORRIS, J

text:
    (Third Circuit—Hancook Co., O., Circuit Court
    Dec. Term, 1897.)
    Before Day, Price and Norris, JJ.
    THE WINDISCH & MUEHLHAUSER BREWING CO. et al. v. CLARA OPP.

      Contest of will — Issue—
    (1). The only issue that can be submitted to the jury in an action involving the setting aside of a will is, whether the writing produced by the proponents is the last will of the testator or not.
    Same—
    (2). In such an action, if the petition sufficiently directs the attention of the court to the fact, that the validity of the will is challenged and that the proper parties are before it, it is for the court to see that the issue is made up, and submit that phase of the litigation to the jury, no matter what other causes of action may be asserted in the petition, or what other parties are drawn into the controversy by the pleadings.

      Evidence of mental incapacity—
    (3). Manifestations of mental disturbance by the testator, though remote as to time,are not remote to the issue if, when connected with other evidence of mental weakness of recent date, they tend to reflect light upon testator’s condition at the time the will is made.
   NORRIS, J

The defendants in error were the plaintiffs, and the plaintiffs in error were the defendants- in the court of common pleas.

The action was brought in the court below to set aside the will of one Ida E. Opp. The plaintiff, Clara Opp, and the defendants Dora Alspach, Wilber Opp, Ida Opp, Blanch Opp, and Hazel Opp are the only children and heirs at law of the testatrix, Ida E. Opp. Willoughby E. Opp was the husband and is the widower of Ida E, Opp, and is the sole legatee and devisee under her will.

The validity of the will is attacked in the amended petition of plaintiff, upon the ground that at the time the will was made, Ida E. Opp, from protracted illness, was mentally incapacitated, and was not of sound mind, and that she was coerced into signing the paper which purports to be her last will, by the influence of her said husband, Willoughby F. Opp; and by false representations made by him that said paper was not a will.

The other parties made defendants to the action, are parties who claim title to parts of the property to which Opp succeeded by this will, and who claim title under or through him.

To the amended petition a demurrer was filed by the Brewing Co. First: Upon the grounds that said pleading does not state facts sufficient to constitute a cause of action Second: That several causes of action are improperly joined. The demurrer was overruled, by the court below.

Answers are filed by the Brewing Co., Charlotte Fill-wock and August Rusinger and others, setting up their respective titles, denying the salient allegations of the petition, asking that the will be sustained, and for such proceedings as may protect their interests and prevent loss. The other defendants do not answer.

The issue made upon the journal of the common pleas was, whether the writing mentioned in the petition is, or is not, the will of the testatrix, Ida B. Opp. This issue being submitted to a jury, resulted in a verdict not sustaining the will. The motions of the answering defendants for new trial were overruled, and the court entered judgment on the verdict. To reverse this proceeding the defendants except the Opps prosecute error.

The reasons assigned for reversal are, that the verdict is contrary to law, and is not sustained by sufficient evidence; error in admitting evidence over defendants’ objection, and in rejecting evidence offered by the defendants, and error in overruling the demurrer to the amended petition.

As to the overruling of the demurrer.

The issue to be submitted, and the only issue that can be submitted to the jury in an action to set aside a will, is:

“Whether the writing produced by the proponents is' the last will of the testatrix or not”.

The issue to be tried having been prescribed by statute can not be — says 52 Ohio St. 520- — varied and restricted by averments in the pleadings. So it would appear that if the petition sufficiently directs the attention of the court to the fact that the validity of the will is challenged and that the proper parties are before it, the court submits that phase of the litigation to a jury, no matter what other causes of action may be asserted in the petition, or what other parties are drawn into the controversy by the pleadings. We think the demurrer was properly overruled.

The validity of this will ia directly assaulted by the’ amended petition, and there was no other way but to submit the issue, as was done by the court.

As to the error assigned in the court admitting and rejecting evidence, it is held, 52 Ohio St., 519, '‘that the specific ground of contest to which the evidence relates need not — to render the evidence admissible — be alleged in the petition, but that any evidence — competent—tending’ to prove that, for any reason, this instrument in contest is not the valid will of the testatrix, is admissible.

There is no testimony in the record tending to show that Willoughby F. Opp falsely represented to the testatrix that the paper she was signing was not a will; so that ground of contest is not considered.

The reasons urged for the invalidity of this will are, that the testatrix was, at the time the paper was signed, of unsound mind to a degree that precluded testamentary capac- ’ ity, and that she was coerced by the undue influence of her husband. And the evidence appears to have been directed to these grounds.

The first objection to evidence urged as error is found on page 5 of the bill of exceptions. About a month before she was taken with her last sickness, one of her younger children (Wilber), was- away from the house during the prevalence of a heavy storm. This occurrence appears to have affected her strangely. The relation of it by the witness was objected to by defendants as remote, and the court admitted the testimony over the objection. As related by the witness, it appears the boy was away from the house during the storm, and that testatrix became very anxious and much excited, but when the boy returned safe she quieted down until evening, when her condition became so alarming to her family that a Doctor was sent for; her mind was filled with vagaries and alarm. She imagined that her daughter Dora, the witness, Mrs. Alspach, was being killed at the school house. When Dora presented herself, the testatrix failed to recognize her, but still insisted that her hallucination was a reality; she then imagined that her son-in-law was being killed, and the next day tried to jump out of the window. The witness says from that time cn she appeared on occasions to be flighty. She seemed to be very jealous of her husband, and would insist that he was away talking to some one else when he was standing before her. She imagined that her people from a distance were in the next room waiting for her, and wanted to go to them; at one time she claimed her step-son was going to kill her. This was a month before she took her last sickness, but from that time on she complained, says the witness. She would wrap herself in a heavy blanket, even though the weather was exceedingly warm; she appeared gloomy and in low spirits. About two weeks before her last sickness she made known her intentions of poisoning herself, and her preparations to so do were discovered by her family. And shortly after this she fancied her husband had been hurt in a fight and insisted on seeing blood on his face when there was no blood there. In ten days or two weeks, the disease which ended in her death manifested itself; from this time she lived about eight days and she died on the 12th of October in the morning. We think that her condition at the time and immediately following the storm was so recently before her death and so followed by other manifestations of mental disturbance, as to reflect some light upon the condition of her mind at the time the will was signed, and facts that thus tend to enlighten the jury are admissible whether the dates of such manifestations are a long time or a short time before the making of the will. Such facts, though they may be remote as to time, are not remote to the issue.

On page 100 of the bill of exceptions is the cross-examination of Dr. Van Horn, who was called by the plaintiff as an expert. A series of questions had been put to him by counsel for defendants, as to the probability of erysipelas- — ■ of which disease the testatrix died — inducing delirium. After answering the question, he was asked, “whether or not a physician in charge of the case would know more about the condition of the patient, than a physician to whom a hypothetical question was put.” The court sustained the plaintiff’s objection to this question, and we think properly. The inquiry would involve and provoke investigation as to the knowledge and experience and skill and judgment of the physician in charge, and the balance of the medical profession, and when answered would be but the opinion of a man who didn’t know. And at any rate, his opinion (on the subject) was reached farther on.

The last ruling objected to is found on page 109 of the record, To Dr. Ewing, who was offered by plaintiffs as an expert, the condition of the testatrix for the week preceding her death had been described, and he was asked that, “if when she was well she was accustomed 'to drink beer, whether or not that fact would increase or diminish the probability of her being delirious in her last sickness.” He answered, “that the fact that she drank beer at all would increase the probability.” This answer was objected to, and the objection was overruled, We see no error in this. There is testimony tending to show that while in health preceding her last sickness she did drink beer, not to excess however, but the answer carries with it its own pertinency, and was properly allowed.

There is no objection to the charge, which is a clear ex-' position of the law of the case.

This woman died on the 12th of October, Saturday morning, at about 3 o’clock. Her disease was pronounced by the physicians to be erysipelas. It manifested itself on her face and head; it became noticeable on Friday the4th, and grew more virulent until it killed her. The will was signed on the Thursday before her death. At this time the testimony shows her head was swollen to nearly twice its natural size, and her eyes were nearly closed, she had the fever that naturally attended such a condition. On Monday she did not .know her son Wilber, the boy whose reaj or fancied danger from the storm had so distracted her a month before. On Wednesday, she fancied that Mrs. Mc-Oall, a friend who had been long dead, was in the room with her. On Thursday forenoon, the day. the will was signed, she imagined that her people from Pennsylvania who were dead, sat in the next room waiting for her. A. neighbor woman whom she well knew called to see her in the afternoon, and she did not recognize her. From the time the will was signed to her death she was generally quiet except when aroused to take medicine or nourishment, and then she fancied they were giving her poison.

For a time before the will was signed she did not take much notice of anything. She was an affectionate and attentive mother, yet she paid no attention to her children when they came to her. In the forenoon before the will was signed she did not know her neighbor, Mrs. Levan. She thought she was away from home, and was lost, and wanted to get home to her baby, yet when the baby was brought to her bed side, she didn’t know it. Along between 3 and 4 o’clock of that day, she insisted on going home, tried to get out of bed and wanted to go home. She had made her will the same afternoon, and this appears to have been the true condition of this woman at and about the time the will was signed. She never got better, but grew worse from the day she was.taken until she died. The Doctor, Dr. Gius, recognized the gravity of the situation early in the week, when he told Opp if be had any business to transact with her he had better be about it.

Opp is the sole-legatee and devisee of this will, her children whom she appeared to love so well, the little son for whose safety she evinced such solicitude, the little baby from which in her delirium she fancied she was separated and to which she wanted to return, were not remembered in that will. It was a ready-made document when it reached her; her husband had it prepared; her husband held her up in bed when she signed it. She barely assented to the questions put to her by a nod of the head or by a yes or a no.

James 0. Troup, for Plaintiff in Error.

John Poe and Elisha Dunn, for Defendant in Error.

Dr. Gius swears that he never saw her when she was delirious, and that he thinks she was of sound mind when she signed the paper. Mr. Phelps, who saw her for only a few moments, says that from what he saw he thinks she was of sound mind,

The jury concluded that the woman when she signed that paper did not know what she was doing, and that she was not of deposing mind and memory, as defined to them in the excellent charge of the trial court. We cannot say the verdict was wrong, and finding no error in the record to the prejudice of paintiff in error, affirm the judgment at costs of plaintiff in error, without penalty.


author: KiNG, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    March Term, 1897.)
    Before King, Haynes and Barker, JJ.

    ANNA C. MOTT v. THE CITY OF TOLEDO.

      Under the law of Ohio, o party may acquire title to real estate as against the municipality by adverse possession—
    The occupation by abutting owners, of a street, by taking possession of the whole, including it within the boundaries of their land, using and occupying it as a part of their premises, selling and conveying it to purchasers for a valuable consideration, establishes adverse possession.
    While am encroachment upon a street by a permanent building would establish adverse possession, a mere incroachment up•on the street by the erection of a fence, or even a stonewall, would not do so. But the occupation of the entire street, to 'the exclusion of the public for all purposes for which the street was dedicated, constitutes adverse possession,and if continued for twenty-one years, will bar the rights of the public to the street.
    ■(Affirmed by supreme court without report, April 18,1899.)
   KiNG, J.

This case was submitted to the court with that of Thomas Rowland against the city of Toledo. I shall first notice -the Mott case.

This action was commenced in the court of common pleas, October 29, 1894, for the purpose, as alleged by plaintiff, of quieting her title as the owner and in possession of a •strip of land fifty feet wide by two hundred and sixty-six feet long, lying southeast of Nineteenth street, and asking for an injunction enjoining the city of Toledo from entering ■upon the premises described, and taking them and improving them for use as a street.

The petition averred that the city was about to do that, and by its council had passed a resolution having that as its purpose.

There is an answer denying the allegations of the petition, and the case was submitted to the court upon the evi-denee offered and an agreed statement of facts,

The property in question, with other land adjoining it, was owned by Henry W. Hicks and Richard Mott, and on February 20, 1866, they executed and acknowledged a plat that had been prepared for them of this tract of land, which ■they presented to the council of the city, and it was by the council duly accepted, and on March 21, 1866, was recorded in the records of plats in the office of the county recorder. The whole tract ran from Nettie street on the west to Sixteenth street on the east, which are now and were at the time of the plat opened and traveled streets, and was bounded on the north by Monroe and on the south by Washington streets, which were and are opened and traveled streets, Monroe street running through the city from the Maumee river in a westerly direction and is one. of the most important streets of the city. They laid out on the plat certain streets crossing this tract from north to south, notably Seventeenth and Nineteenth streets, which were shortly opened and have been repeatedly improved by the city. They also laid out between Washington and Monroe a street called Bartlett street, which was opened from Nettie to Nineteenth street and improved by the city, and the lots abutting thereon sold off to various owners and built upon. Bartlett street from Nineteenth street east was not opened by these dedicators, nor their successors in title, nor has it been opened by the city or the public, or any attempt made in that direction until July 13, 1894, when the council adopted a resolution providing for the improvement of Bartlett street from Nineteenth to Sixteenth. 1 may as well say here that Washington and Monroe are thoroughfares running through the city, and that the opening of Bartlett street as now proposed by the council would not benefit in the way of shortening travel or otherwise any of the owners of the property abutting on that street further west. By the plat referred to, the lots laid out as fronting on Monroe extend back to Bartlett street, a distance of two hundred and twenty-one (221) feet, while the lots between Bartlett and Washington are made substantially one hundred feet in depth with an alley running parallel with Bartlett street between them, but no lots have ever been sold by the proprietors of this tract abutting on the south side of Bartlett street between Nineteenth and Sixteenth streets.

On October 25, 1866, the said owners by a warranty deed expressing a consideration of nine thousand dollars, conveyed a portion of these premises to James M. Hicks by this description: Oommencingon the southerly corner of Monroe and Nineteenth streets and extending easterly along the sotíthwest line of Monroe street, two hundred and sixty six feet; thence southwesterly at a right angle from said last named street three hundred and forty-six feet; thence northwesterly on a line parallel with Monroe street two hundred and sixty-six feet to Nineteenth street; thence northeasterly along Nineteenth street, three hundred and forty-six feet to the place of beginning on Monroe street, being in Mott’s addition, and comprising lots 23, 24, 25, 26, 27, 28, 86, 37 and 38 of said addition.

The lots 36, 37 and 38 abutted upon Monroe and ran back to Bartlett street. Lois 38 and 37 were each one hundred feet wide, and lot 36, sixty-six feet, and these lots are 221 feet in depth. The other lots named abut on the south side of Bartlett street and run back to an alley, and are from forty to sixty-six feet in width. These boundaries, it will be observed, include the whole width of Bartlett street extending east 266 feet from Nineteenth street, and also~include the lots abutting upon Bartlett street in the plat seventy-five feet from their northerly ends.

This deed, executed October 25, 1866, was recorded December 23, 1870. On July 1, 1873, James M. Hicks, the then owner of that rectangular piece of land, by his deed conveyed the same, by the same description, to Anna 0. Mott, the plaintiff, This deed was recorded August 4,1873, in the recorder’s office, and since that date Anna 0. Mott, plaintiff, has been the owner of all that property,and so remained at the time of the commencement of this action.

In 1873 she commenced the erection of a dwelling house on this property which fronts on Monroe street, and that year, and the year following, erected a dwelling house, and some time after erected a barn upon lots 36- and 37, the southerly line of which corresponds, very nearly at least, with the northerly line of Bartlett street; but the premises described in her deed were used by her ever since she began to live there, as they had been to some extent before, by the owners of this property, as a part of the entire piece of property there. In other words, the land lying south of ■ the three lots fronting upon Monroe street was used as adjacent and contiguous to the barn and house. It was used for pasturage of cattle and horses kept by Miss Mott, as a yard or place wherein they could be turned out, and some of the land was used for garden purposes. There was a fence built by the plaintiff along the northerly part of Bartlett street from the barn to Nineteenth street, substantially on the northerly line, and that has remained there ever since. There was also another fence on the south line of Bartlett street at the time plaintiff acquired her title which ran back as far as this property, 266 feet. That fence was moved two or three years ago, but the property between that fence and the alley which I spoke of has always remained as a part of the premises belonging to the estate of ■Miss Mott. In other words, she holds her property as taken in the deed 346 feet in one direction and 266 in the other. Along Nineteenth street, between these premises and the • street, there has been a fence all the timé since before the execution of this plat, and it remains there now, with suitable gates for ingress and egress in and upon these premises. The facts further show that this part of these premises has been, during all the time that Miss Mott was the owner, and ever since the execution of this plat, in the possession of the owners of this property. Other facts might be •cited, but they would not bear upon the question raised, and that is^whether Miss Mott has acquired title to that part of Bartlett street passing through her premises by adverse possession against the city and the public. This has been very|jfully and ably argued by counsel on both sides, and a great^many authorities have been cited, many of which we^shall be unable to review

The claim is'made on the part of the plaintiff that under the law of Ohio a party may acquire title to real estate as against a municipality by adverse possession. This we do not understand to be disputed by the city, but the claim is made that the law is limited by the authorities and decisions in this state to an actual occupation by permanent improvements. In other words, that what has been said, if anything, by the courts of this state that would seem to bear a different construction, must be limited to an actual occupation of the property for twenty-one years, by improvements that are designed to be permanent in their nature. We are left to determine between these conflicting opinions as to what is the law in this state relating to this single question. There are many decisions which refer to it. Commencing back as far as 1838 in the 8th Ohio Reports, at page 299, is a case in which the court, by Judge Lane, on page 310, very briefly stated the Jaw of this state to be as follows:

“No case is found in the books which exempts any other description of person, whether natural or artificial, from the operation of the laws; and none of the reasons for the exemption apply with much force to municipal corporations. The law imposes upon them the duty of defending the interests which they are created to hold, and has conferred every power necessary to this end, When the property is their own, the statute has been always held as binding; when their land or franchises are of public character, the public which they represent are principally members of their own body, sufficiently vigilant to watch their own interests, and sufficiently powerful to defend them. The rights of the corporation, therefore, seem well enough protected without invading the letter of the statute. ”

That was the first case in which the court was called upon to pass upon this question. They affirmed this doctrine in a ease in the 1st Ohio St., 478-510, and again in the 5th Ohio St., 594-602-3.

In the 5th Ohio St., Judge Ranney refers to the decisions in the 8th Ohio and 1st Ohio State Reports as establishing the doctrine in this state, and says in addition that they have his unqualified sanction and approval. The case in the 5th Ohio St. relates to a public highway.

In the 13th Ohio St. the court were again called upon to pass upon the question where it was raised, and this was an obstruction to only a portion or strip of the land along one side of it which did not interfere with the public use of the street. The court in that case, on page 48, says:

“It must be borne in mind that, in the case at bar, the road was not closed up, and the public thereby excluded from any use of the street. In such case, the entire exclusion of the public would doubtless be such an ouster or dis-seizin, as would require a suit to be brought within the statutory period, upon the principles settled in Lessee of the City of Cincinnati v. The First Presbyterian Church, 8 Ohio Rep., 298. Nor is it like the case of The City of Cincinnati v. Evans, 5 Ohio St. Rep., 594, where the purpose of the possession and intended permanency were indicated by the erection, within the bounds of the street,of the front of a large and costly ware-house. The erection of such a building, in such a place, was ample notice to the city authorities to his private and individual benefit of a portion of the public easement, and called for immediate and effective measures upon their part to prevent it.”

I notice particularly that language where the court say,in the 13th Ohio St., that in the case before them there was not an entire exclusion of the public. If there had been, it would doubtless be such an ouster as would require the suit to be brought within the statutory period. And saying further it was not like the case in the 5th Ohio St., where it was an encroachment, but of the character of a notice to the public of an' intention to occupy. Now there are several more of these cases: 28 Ohio St., 488, is also the occupation of a strip of land on one side of a public highway, and, ■also 38 Ohio St., 87. This was the occupation by a private individual of a lot of land that it was claimed had been conveyed or patented to Oxford township for school purposes, and the court there considered the question whether an individual might acquire title by adverse possession, and say, on page 96:

“The remaining question, then, is whether the statute of limitations applies, assuming that the plaintiffs, as trustees of Oxford township, acquired title to the premises, by donation from the general government in 1841 for the benefit of •schools. That the maxim ''nullum tempus oeourrit regi’ is applicable to the general and state government is not denied; but it was held in Cincinnati v. First Presbyterian Church, 8 Ohio, 298, upon the fullest consideration, that the maxim did not apply where a city prosecuted an action of ejectment to recover possession of lots dedicated to public use, the defendants in the action having been in the adverse possession of the lots for more than twenty-one years. I am aware that cases may be found in opposition to that decision. Several of them are collected in a note to the case as reported in 32 Amer. Dec., 718, 721. But that decision has been repeatedly approved in this court, and, as applied to a case like the one under consideration, it is amply supported here and elsewhere.” Citing 1 Ohio St., 478; 16 Ohio St., 11; 50 Mo., 195; 2 Dillon on Mun. Cor., sections 668, 674. “As to the application of the rule to adverse possession of public ways, see Cincinnati v. Evans, 5 Ohio St., 594; Fox v. Hart, 11 Ohio, 414; Lane v. Kennedy, 13 Ohio St., 42; McClelland v. Miller, 28 Ohio St., 488; Railroad v. Commissioners, 31 Ohio St., 338.”

There is a case in the 52 Ohio St., page 460, which follows out the established line of these decisions:

“The right of an adjacent land holder to inclose by a fence, however constructed, a portion of a public highway, can not be acquired by adverse possession, however long continued.”

And the court say, on- page 467:

“More recent cases place the right of the public as against encroachments on its highways, however long continued, on the ground that they are public nuisances in favor of which the statute of limitations does not run.”

Recently there was a case before the circuit court in the second circuit, 6 C, C., 142, and Judge Shearer in announcing the decision of the court has this to say, having discussed one of the claims made which might have been decisive of the case. He adds, at page 140:

“But if the views above stated are wrong, it is clear that the plaintiffs must fail upon another ground, namely, that Taylor’s title is established by adversé possession. ■ After Ramsey’s dedication, which was in 1856, he remained in said adverse possession until the year 1860; and although the city had accepted the grant, by ordinance, it did not, nor did it ever take possession of said streets, etc. In 1860 Ramsey conveyed his title to all said lots, and his grantees and said Taylors have been in the possession thereof ever since, and until within two years kept the same enclosed, used them for pasturage, and treated the same as their own, without objection on the part of the city or of said plaintiffs. No steps were ever taken by plaintiffs, or those under whom they claim, to terminate such use and occupation, or to enforce the trust created by the dedication, or to prevent the ripening of Taylors’ title. They stood by and acquiesced in the open, notorious, continuous, peaceable and exclusive possession of the occupants. And as the statute began to run as early as 1860, and .continued to run without interruption until this action was brought in 1890, the Taylors have acquired a valid title to said property.”

The case is referrd to by the supreme court in deciding two other cases, which are affirmed on its authority, 31 W. L. Bull., 156.

We assume that the decision by the circuit court is approved on both points decided, and that the supreme court in affirming the other judgments affirmed them upon the second ground as well as upon the first. If tb.at be so, the case in the second circuit court, as far as possession is concerned, is like the one before us, as the lots were fenced in and used for pasture. There is some evidence here to show that some of the time plaintiff used a portion of this land for garden purposes, and ie was a use incident to the occft-pation of the balance of the property by the, person who owned it. The case in the second circuit court is no stronger, so far as possession is concerned,than the one before us. It has in it the same element as that here, having been dedicated for public purposes, as evidenced by a plat which was shortly after accepted and recorded and the title thereto vested in the city for street purposes merely, and in effect that dedication was repudiated by making a deed therefor and conveying it to another. So far as this defendant or this property is concerned, such conveyance by the dedicators is an act which should be notice to anyone who thereafter acquired or claimed rights in this property, to the effect that they did not propose to recognize the dedication any further.

The grantors described this land by metes and bounds, which govern; giving the length of each line and the location, “being in Mott’s addition, and comprising lots numbered 23, 24, 2o, 26, 27, 28, 36, 37 and 38.’’ The word “comprising” is used to mean “embracing” or “including;” including these lots and the street as well. The grantee purchased them and paid for them and entered into possession under the deed which was to him color of title, and since that time has occupied those premises for all the purposes for which the occupier has any occasion to use them. Now, if there be any adverse possession against a municipal corporation, we do not see why, in a case like ■this, it is not made out.

The occupation by the owners of the street by taking possession of the whole, including it within the boundaries of their field and their land, using and occupying it as a part of their premises, selling and conveying it to purchas-era for a valuable consideration, it seems to us a pertinent way of establishing an adverse possession.

■ It is not essential that there should have been a permanent building upon this street in order to establish adverse possession. The supreme court has not yet said so, and we leave that for them to decide. They have held that an encroachment upon a public street by a permanent erection would establish adverse possession. They have held in one-case that a worm fence, and in another, a stone wall encroaching upon the street is not such an occupation as constitutes adverse possession; but where they have given any expression upon the question, they have held that the occupation of the entire street, and the exclusion of the public for all purposes for which it was dedicated, is such an occupation as will bar the rights of the public thereto, if continued for a period of twenty-one years, and we think we are bound to follow these decisions and to hold that the title to this property has been acquired by adverse possession. We hold that the plaintiff has acquired title to this property by adverse possession, which has continued the statutory length of time, and that' thereby the right of the public to take possession thereof for the purposes of a street is barred.

In the Rowland case the facts are substantially the same, The Rowland property adjoins the Mott property on the east, and is. bounded by Monroe and Seventeenth streets. The dedicators conveyed their title in the two lots, which comprise the Rowland property, about the time of making the plat, and in their deed simply conveyed the lots by the numbers upon the plat, and did not undertake, as in the Mott case,to convey any part of Bartlett street; but the owners of the two lots who have succeeded in title to those who made the plat have enclosed within their premises one-half of Bartlett street from the Mott property east to Seventeenth street. Next south the adjoining owners have included the other half of Bartlett street in their property, but these. owners are not involved in this action, and for more than twenty-one-years before the commencement of this action and before the adoption of the resolution by the city council, the owners of the Rowland property have kept it enclosed and have improved it as residence property by filling it up and raising the level somewhat above that of the streets and of surrounding property, and have effectually excluded the public from any use of that part described on the plat as Bartlett street. And we find that Rowland has an adverse possession of the strip of land twenty-five feet in width described in his petition within the definition in such cases sufficient to give him title to that strip.

J. Kent Hamilton, Attorney for Anna 0. Mott.

Emery Potter, Attorney for Thomas Rowland.

C. W, Watts, City Solicitor, J. H. Tyler and H. 8. Merrill, Attorneys for Defendant.

Ifte do not intend to decide now that the owner of land who dedicates it for street purposes, may himself set up a tille^against the public claiming to hold by adverse possession, unless he shall hold by such possession of the property after the dedication, as to have made it notice to the public and to the city that he intended to hold that property against the city and to ignore or to set aside his deed of dedication. In other words, we do not intend to hold in this case that the dedicators of this property for Bartlett street, without changing the nature.of the possession, might occupy it substantially as it was occupied before, and then set up title to that street by adverse possession. Whether such a possession would be adverse in Ohio, we do not undertake to decide; but we do say that a grantee who has purchased and is not bound by the deed of dedication, may set up title by adverse possession if he has occupied, enclosed and used the land for the statutory length of time, and has excluded the public therefrom.

Decided March 25, 1897.


author: Sheakee, O. J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Shearer, C. J. ; and Haynes and Parker, JJ.
    (Judge Shearer, of second circuit, sitting in place of Judge King.)
    GITSKY v. NEWTON.
    A “judge and justice of the peace”, elected, commissioned and qualified under section 621-1 et seq., Revised Statutes, (93 O. L., 322) is at least a de facto officer, colore officii, and against all but the state an officer de jure; and the title of his office cannot be questioned otherwise than by proceedings in quo warranto.

    (Affirmed by the Supreme Court without report.
    See 41 Bulletin, 268.)
    Error to the Court of Common Pleas of Lucas County.
   Sheakee, O. J.

The original action was in forcible detainer before a “judge and justice of the peace” of the city of Toledo— locally called a “city judge”. Judgment was rendered in favor of the defendant in error, and affirmed in the court of common pleas. To reverse these judgments is the object of the present proceeding.

The grounds assigned for error, among others, are the overruling of a motion to quash the service of summons and a motion to dismiss the action for want of jurisdiction by reason of the alleged unconstitutionality of the act authorizing the election, in cities of the third grade, first class, of “judges and justices of the peace.” Revised Statutes, sec. 621-1 et seq., (93 0. L. 322). In other words, that the statute being invalid,the judgá and justice of the peace (or city judge) had no legal existence nor power to hear and determine the cause.

This contention is disposed of adversely to plaintiff in error in The State v. Gardiner, 54 Ohio St., 24, the syllabus of which case reads as follows:

“In a prosecution for offering a bribe to an officer, who is acting as such under a statute providing for the.government of a municipal corporation, the defendant cannot question the constitutionality of such statute.”

Gardiner was indicted for attempting to bribe one Hugill, who held the office of City Oommissioner of Akron. A demurrer was interposed to the indictment on the ground that the statute under which Hugill was acting was unconstitutional. and that, assuming the invalidity of the statute, the office had no existence in law or in fact, and there could be no officer defacto or de jure.

The court of common pleas sustained the demurrer, and this action was made a ground of exceptions in the supreme court, where the exceptions were sustained.

In the course of the concurring opinion Spear, J., says, quoting from Campbell v. The Commonwealth, 96 Pa. St., 344.

“The prisoner had been convicted in Fayette county of arson in burning a dwelling house and other buildings.
“Two associate judges, not learned in the law, but who had been elected by the people of the county and commis-. sioned, sat with the president judge and participated in the trial and sentence. The validity of their title to the office, and hence of the composition of the court, was questioned on the ground that, under the constitution of 1874 and subsequent legislation, the people had no power to elect associ- ' iate judges in Fayette county. It was held that they were judges defacto, and as against all parties but the commonwealth they were judges de jure,and,having at least a color-able title the their offices, their title thereto could not be questioned in any other form than by quo warranto at the suit of commonwealth”—

So here, the city judge and justice of the peace had at least a colorable title to his office,and was an officer de facto was in possession of his office,performing its duties, and until he is in some direct way adjudged to be without authority, his official acts are to be regarded as valid. They can not be collaterally attacked.

The admission of certain testimony is the basis of one of the assignments of error. It tended to question the title of the landlord, defendant in error. This could not be allowed unless it were shown that the defendant in error-had parted with his title, or the like, after suit was brought. It was not claimed that anything of the kind had taken-place.

Moses G. Bloch, for Plaintiff in Error.

Kinney & Newton, for Defendant in Error.

It is also asserted that the trial court erred in excusing one of the jurors summoned in the cause, without the consent and against the objection of plaintiff in error; but no prejudice appears to have resulted from such action.

Finding no error to the prejudice of the plaintiff in error, the judgment will be affirmed.