author: PARKER, J.

text:
    PARTIES — RESCISSION—CONVERSION.
    [Lucas (6th) Circuit Court,
    June 20, 1903.]
    Parker, Hull and Haynes, JJ.
    Charles W. Isham et al. v. Buckeye Stave Co.
    1. Right to Rescind Contract Survives to Personal Representative.
    Upon a contract for the sale of growing timber, a right of action for damages by reason of fraud, or for rescission, being a personal right which the grantor may waive and elect to insist upon the performance of the contract, survives to his personal representative, and not to his devisees. Hence, where it is alleged that a devisor, through fraud, was induced to contract, at a grossly inadequate price, for the sale of growing timber upon land devised, a part only of which had been removed from the land, his devisees,_ upon tendering back the purchase money, will not be entitled to a rescission of the contract. In such a case there was no contractual relation, and, therefore, there can be no contractual obligation, between the purchaser of the timber and the devisees.
    2. Realty, Converted into Personalty, Goes to Personal Estate upon Rescission.
    Where recission is sought of a contract for the sale of growing timber, upon the ground of fraud, the timber being considered as already converted into personal property under the doctrine of equitable conversion, the right to the timber, upon rescission, devolves upon the personal representative for the benefit of the personal estate, and devisees cannot maintain such an action thereon.
    Appeal from common pleas.
    Ashton H. Coldham and Wilber A. Owen, for plaintiffs.
    Hon. J. J. Moore, for defendant.
   PARKER, J.

This case is in this court on appeal. When the action was begun in the court of common pleas in March, 1902, the plaintiffs were Charles W. Isham, Sarah Isham, John W. Stebbins and John F. Isham, administrator, with the will annexed, of the estate of John G. Isham, deceased, and the defendant was The Buckeye Stave Company. To that petition a demurrer was filed in the court of common pleas, on the grounds, (1) that there was a misjoinder of parties plaintiffs; (2) that several causes of action were improperly joined, and (3) that the petition did not state facts sufficient to constitute a cause of action.

The court below, in passing upon that demurrer, held that it was well taken, and sustained it, on the ground that there was a misjoinder of parties plaintiffs and on-the ground that it failed to state facts sufficient to constitute a cause of action. Thereupon an amended petition was filed, and from the amended petition Sarah Isham and John F. Isham as administrator, were dropped out. To this amended petition a demurrer was filed on the grounds that the plaintiffs, or either of them, had no legal capacity to bring the action, and also that the facts set forth in the amended petition did not, in law, constitute a cause of action in favor of the plaintiffs and against the defendants. That demurrer was overruled, and thereupon an answer was filed,, and to the answer a reply was filed. The case was submitted to the court below upon the merits, and from the finding and judgment of that court an appeal was taken to this court.

In this court the defendant asked for and was granted leave to withdraw his answer, for the purpose of again presenting the questions raised by the demurrer to the amended petition. Upon the first presentation of these questions a majority of the court were so clearly of the opinion that the demurrer was not well taken, that we resolved to proceed to ■trial upon the merits, reserving, however, a right to give this subject further consideration, and when the case came to be finally submitted, there was more argument heard upon the demurrer, and, after a full consideration of the matter, we are unanimously of the opinion that the court below erred in overruling the demurrer; and that this court was in error in proceeding upon its first impression. We hold that the demurrer must be sustained on the ground that the facts stated do not constitute a cause of action in favor of the plaintiffs and against the defendant. I will read the averments of the petition :

“The defendant is, and at the time of the occurrences hereinafter set forth was, a corporation organized and existing under the laws of the state of Ohio, and has a place of business in the village of, Waterville, Lucas county, Ohio.
“Plaintiffs say that on or about the sixth day of April, 1899, and during the lifetime of John G. Isham, deceased, he was and for a long time prior thereto had been the owner of a tract of land known and described as the west one-half of the southwest one-quarter of section No. 31, in the reservation of twelve miles square in Waterville township, Lucas county, Ohio; and that said land was covered with standing timber.
“Plaintiffs further say that on or about said sixth day of April, 1899, John Fraser, the duly authorized agent of the defendant company, called at the home of said John G. Isham, deceased, and with intent to deceive and defraud said John G. Isham, deceased, and for the purpose of inducing 'him to part with his said timber at a grossly inadequate price, represented to him that he, the said Fraser, was an expert in estimating the quantity of standing timber; that he was regularly employed by said defendant in buying standing timber and making said estimates; that he had carefully gone over and examined the said piece of property above described and the timber thereon, and that he estimated the said piece of timber land to contain 60,000 feet of timber, and that it would not contain more than 60,000 feet at the outside.
“Plaintiffs further say that said piece of land at said time instead of containing fifty or sixty thousand feet of timber as so fraudulently alleged and represented by said Fraser, contained about 200,000 feet of timber, all of which said Fraser then and there well knew to be true.
“Plaintiffs further say that said John G. Isham, deceased, at the time said false and fraudulent representations were made to him by said Fraser, as aforesaid, was, and for a long time prior thereto had been, an invalid, was sick and unable to leave the house, and in a weakened condition of mind and body, and that said Fraser well knew said facts to be true; that believing in the honesty and integrity of said Fraser, and being unable to personally examine into the truth of said statements so fraudulently made on account of his said illness, and not being an expert in such matters himself, said John G. Isham, deceased, relied upon the statements and representations so fraudulently made by said Fraser, and so relying upon said statements and representations and believing them to be true, agreed to accept for said timber so standing on said land the sum of-$425, and sold the same to the defendant for said sum.
“Plaintiffs further say-that on the ninth day of June, 1901, said John G. Isham became deceased; that he continued to be an invalid from the said sixth day of April, 1899, up to the time of his death, and was unable to leave the house during said time; that prior to his death, the said John G. Isham, deceased, did not discover and had no means of discovering that said tract of land contained more timber than said Fraser had represented it to. contain as aforesaid; that the plaintiffs are the heirs of said John G. Isham, deceased; and that he left a will, by the terms of which said land upon which said timber stands was devised in fee simple to the plaintiffs in the following proportions, subject to the life'estate of Sarah Isham, the widow of said John G. Isham, deceased:
“To Charles W. Isham the east one-half of.the west one-half of the southwest one-quarter and the north one-half of the west one-half of the west one-half of the southwest one-quarter of said Section 31.
“To John W. Stebbin.s the south one-half of the west one-half of the west one-half of the southwest one-quarter of said Section 31.
“Plaintiffs further say that soon after said contract of sale was made the defendant entered upon and began to cut and remove said timber from said land, and that it has already cut and removed from said land about 82,000 feet of timber; that there still remains standing upon said land a much greater quantity of timber than has thus far been removed, and that said timber so remaining standing is partly upon the land of each of the plaintiffs; that said plaintiffs did not discover the aforesaid fraud of the defendant until after the said 82,000 feet of timber had been cut and removed; that neither of said plaintiffs is an expert in estimating the quantity of standing timber and had not the means of discovering the said fraud until they had learned that said defendant had already removed from said premises a much greater quantity of timber than its said agent had as aforesaid represented it to contain; that on March 19, 1902, shortly. after the discovery of said fraud, said plaintiffs tendered back to .said defendant in legal tender money of the United States the said sum of $425 paid by it for said timber, and notified said defendant that they elected to rescind said contract on account of said fraud, and demanded of it that it surrender-its said contract of sale and return to them the timber removed from said premises by virtue of said contract or account to them for the value thereof; and that said defendant refused to accept said sum of $425 and surrender its said contract and return said timber or account to plaintiffs for the value thereof.
“Wherefore plaintiffs pray the court for a preliminary injunction enjoining and restraining the defendant from cutting or removing any more of said timber, and that on the final hearing hereof the said injunction may be made perpetual; that the said contract for the sale of said timber be declared to be void and of no effect, and for all other proper relief.”

Plaintiffs say that John G. isham, in his lifetime, did not discover that this alleged fraud had been perpetrated; that is the only additional allegation of the amended petition, so far as we can discover, which .seems to be very material.

Now the contention of counsel for the defendant is that the right to bring and prosecute this action is not in the devisees of this land; that if such fraud as is alleged was perpetrated so that a right of action arose, it is a right of action'devolving upon the personal representatives of John G. Isham.

Plaintiffs, however, insist that it is a matter affecting the lands of which they are the owners, and that the right of action under this contract for the removal of the timber from these lands, which have been devised to them, survives to them, and that, because of their interest in the land, the taking of this timber from the land affects the value of the land and that therefore they have a right, by injunction, to require that no more of the timber shall be removed; that the result thereof will be that the value of the land will not be diminished by the removal of any more of the timber they have succeeded to; that the value of the timber will remain, the standing timber, as part of the value of their property — • part of their property. There is no averment in the petition or amended petition, I might say in passing, that the removal of this timber would affect the value of the land. For aught that appears, either by averment or proof, the value of the land would be increased by the removal of the timber; that is to say, the clearing of the land would be worth more to it than the preservation of the timber standing. But that is a matter that might be changed or corrected by further averment and proof. The objection insisted upon goes to the very bottom of the matter; it strikes at the root. If plaintiffs can maintain any action at all, of any character, it must be oh the ground of the alleged fraud. ■

Now it is evident that the right to sue cannot be in both the devisees and personal representatives, they being different persons; that fact appears to have been recognized by the court of common pleas, and so the demurrer to the original petition on account of misjoinder of parties was sustained. Thereupon, as I have said, the personal representatives were dropped out of the case and these plaintiffs undertook- to prosecute it. In our judgment the court below was right in sustaining this demurrer on account of mis-joinder. But the parties made a mistake in dropping out the personal representatives -and retaining the devisees under this will, instead of dropping out the devisees and retaining the personal representatives. If such fraud as is here averred was perpetrated, it was a fraud upon John G. Isham, and it resulted in a cause of action in favor of John G. Isham to recover damages on account of the fraud; and, no doubt also, a cause of action, if he chose to pursue it, to obtain a rescission of the contract. On the other hand, even though the fraud may have been perpetrated, and John G. Isham may have discovered it, it was within his power and his right to waive it and still insist upon the performance of the contract. But as I have said, this amended petition contains the averment that John G. Isham in his lifetime did not discover the fraud. Upon that I may say, however, there is no evidence submitted, except.perhaps the single circumstance that John G. Isham was an invalid from the time this contract was made up to the time of his death. Notwithstanding that, however, he may have discovered this fraud and may have waived it after he had discovered it. There is no evidence that he did not. But that is not important to the main "question that we are considering, i. e., whether a cause of action survives to the devisees.

Now these devisees, as we view the matter, stand in precisely the same relation to this contract that the grantees of John G. Isham, taking by deed of gift, or with knowledge of this contract, would have stood,. If timber were in fact standing under this contract the purchaser thereof would have the right to remove it. Such grantees could not hold it. The devisees are not in a position to complain that enough was not paid for this timber, whether too little or too much was paid or promised for this timber is of no consequence to them.

They acquired no right to any part or share in the consideration paid or promised. Both that paid and that promised, or that due by virtue of the fact that there was deceit, and enough was not paid, wherefore the seller might be entitled to more, was due to the seller, and upon his decease became due to his personal representative, not to the devisees; they were bound to take this land, as I have said, without the timber, and it was a matter of no consequence whatever to them whether half the price of the timber had been paid or promised, or double the price of the timber had been paid or promised. It is averred in the amended petition that they are heirs as well as devisees; but that does not change their standing as plaintiffs here; their standing as heirs would be tlie same.

The right under this contract to have compensation for the timber, either the compensation promised or further compensation or damages by reason of fraud, was a personal right. It was a chose in action which went, under the law, to the personal representative of John G. Isham. It was the right, as I have said, of John G. Isham., in his lifetime to waive the fraud and insist upon the performance of the contract. The same right survived to the administrator. We may suppose that the administrator is content with this contract. We may suppose that he is content to keep this $425, and allow the timber to be taken. What right have the devisees to object to that? What right have they to insist that instead of $425 the personal representative shall have $850, or some other sum; or that he shall have the timber ? Clearly the timber cannot g'o to the devisees. Under the doctrine of equitable conversion, if the devisees should prevail in this case, the timber would not go to them; it would go to the personal representative. Upon that doctrine I may make some further comment and cite some authorities farther on. We may suppose a situation of this kind — a promise to pay for this timber in installments as it is taken, say one-half down and one-half at another time; part of the timber has been taken during the lifetime of John G„ Tsham; part of it is now due to be taken and paid for; the administrator or personal representative is content that the timber shall be taken and the price paid; but the devisees stubbornly say, “No, there was a fraud perpetrated upon our devisor; he did not get, and therefore his personal estate has not received, as much for this timber as ought to have been paid for it; therefore we shall object.” We conceive it is not within the power; it is not the right of the devisees to make this objection; that the personal representative has a right to insist that the contract shall be fulfilled; that the timber shall be taken and the price paid for it The personal representative may not care to interfere. The same result would follow if the timber were to be taken and paid for at so much a thousand as removed. Various illustrations might be given to show the inconsistency of the position of these devisees here. It is made manifest by the attempt made by the devisees to place the purchaser in statu quo, so that the right to rescind might be perfected. The devisees undertook to restore to the purchaser by tendering the $425 paid for this timber. If they have never received it, it is not theirs to restore. What they are attempting to do is to interfere here and pay $425 of their own money to thereby effect this object. The $425 received is personal property in the hands of the personal representative. It is not the personal representative who is- here seeking to place the purchaser of the timber in statu quo by surrendering the same, but those who, we conceive, have no right in this 'contract.

Suppose a situation of this kind — that the purchaser were complaining that he had not received as much timber as lie had contracted for; that a fraud had been perpetrated upon him; against whom would he bring his action? Can he bring it against these devisees? Clearly not. If a cause of action survives to the purchaser of the timber as against the estate, it would survive against the personal representative as a personal obligation. There were no contractual relations between the purchaser of the timber and these devisees; no contractual obligations, and it is clearly manifest that if an action on the one hand must be by the purchaser against the personal representative, the action on the other hand must be by the personal representative against the purchaser. We think a fair test of that proposition is found in the fact that if the plaintiffs here should prevail, that would not bar the right of action of the personal representative to sue for damages on account of this alleged fraud. In other words, the devisees, claiming under this will, by beginning an action of this character, even though they may have begun it first, even though they may have been forehanded in the matter, cannot deprive the personal representative of the chose in action or of his right to recover damages on account of the fraud perpetrated upon the decedent. And we think the right to re.•scind is necessarily in the party having a beneficial interest adverse to the interests of the purchaser of the timber; the party therefore who may waive the fraud; the party therefore who may prosecute an action for damages instead of an action for rescission.

It may be thought, and has been suggested, that if an action of rescission were prosecuted by the personal representative and he should prevail the benefit would result to the owners of this land, in that it would preserve this timber upon their land; that they would become the owners of the standing timber. We do not think this is so. By this contract there has been an equitable conversion of this timber into personal property, and if this contract should be rescinded, the right to the timber would he restored to the personal representative, and as between the personal representative and the devisees, the former would have a right to go upon this land and take this timber. If the personal representative should prosecute an action of this character, he would be prosecuting it for the benefit of the personal estate and not for the benefit of the devisees. Upon this doctrine of equitable conversion I will cite 1 Pomeroy, Eq. Jurisp. Secs. 1G1 and 371, and 3 Pomeroy, Eq. Jurisp. Sec. 1159.

“The doctrine of ‘conversion’ is a particular application of the principle that equity regards as done what ought to be done. The doctrine itself was thus stated by an eminent English equity judge in the leading case upon the subject: ‘Nothing is better settled than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this, in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement or otherwise; and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed, the owner of the fund, or the contracting parties, may make land money, or money land. The cases es> tablish this rule universally.’ ”

Much more may it be said of property, like trees, which may be severed from the land and-made personal property by a contract. We hold that, as between .these parties, the trees would be and were converted into personal property, so that, if the purchaser of these trees should be deprived of them in consequence of fraud in the contract, they would remain personal property as between the personal representative of the estate and the devisees under the will.

I read from 1 Pomeroy, Eq. Jurisp. Sec. 371:

“One of the most direct and evident results of the principle is the equitable property which arises from the doctrine of conversion — when real estate is treated by equity as personal property, or personal estate as real property; land as money, or money as land — ‘nothing is better established than this principle that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement or otherwise, or whether the money is actually deposited, or only covenanted to be paid; whether the land is actually conveyed, or only agreed to be conveyed; the owner of the fund or the contracting parties may make land money or money land.’ A conversion may thus take place where, by a will, a deed or family settlement, land is actually assigned to trustees, with directions in the one case to sell the land and pay over the proceeds to the beneficiary, and in the other to invest the fund in the purchase of the land to be then conveyed to him; or it may, in like manner, take place where, by marriage articles or other executory agreement, land is covenanted to be conveyed, or money is covenanted to be assigned, in like manner and for like purposes. The effect of the conversion is a direct consequence of the principle in question. Personal estate becomes, to all intents and purposes, in the view of equity, real, and real estate personal. Money directed to be invested in land descends to the heir of the original beneficiary or passes under a general description of real property in his will, while land directed to be converted into money goes to his personal representatives, or is included in a residuary bequest of his ‘personal property.’ These are some of the incidents of a conversion, and are sufficient at present to illustrate its nature and'results.”

There is considerable more in this work on this subject and a good many cases cited. Of course, this is not a point we are called upon to decide here, but we mention it and discuss it as an illustration of the situation of the parties.

Now, in support of the contention on behalf of the plaintiffs that the right survives to the devisees, we are cited to certain authorities; but they consist of cases where the question, arose as to whether the right to set aside a conveyance of the land had survived to the devisees; the questions were not so much as to who could enforce the right of action, as whether it actually survived; and it was decided in those cases that it not only survived, in equity at least, but that it survived to the devisees. But those cases we regard as very different from the case at bar. There the whole equitable interest of the devisor in the land was devised; there was no equitable conversion; there could have been no question as to the right of the personal representative. The land being recovered in a case of that character, would necessarily be the land of the devisees or the heirs, as the case might be. I cite a case somewhat in point, decided not a great while ago by Judge Wildman, of the common pleas court of Huron county, Ohio. It is the case of Stang v. Newberger, 8 Dec. 80 (6 N. P. 60) :

“The plaintiffs alleg'e substantially that they are the sole beneficiaries under the will of Peter A. Stang, who died in June, 1895, seized in fee simple of certain realty described; that during the lifetime of said decedent, he had contracted with Magdalena Newberger, one of the defendants, to convey to her said realty for $2,785, payable in installments as evidenced by certain promissory notes; and that'said vendee had paid to said decedent something over ,$160, and defaulted as to the residue of the purchase price, as well as to certain other stipulations.”

Now the plaintiffs undertook to tender back the notes and so much of the purchase price as had been paid, and sought to set aside and rescind the contract, and .recover possession of the premises. A demurrer to the petition was sustained on the grourtd that the right of action was in the personal representative; there are other questions discussed in the case, but I will read from the opinion upon this particular question. The court says on page 63 :

“The plaintiffs sue upon the presumption that they own the land and have a right to remove clouds from their title. But have they any other than a naked legal title, as trustees for the equitable owner.s?
“I find no lack of uniformity in the expressions of the courts and text-writers that in this ¿lass of cases the doctrine of equitable conversion applies and governs the descent of the estate. By this phrase is meant that doctrine or legal fiction under which, for some purposes, land is deemed personalty and personalty land. Thus, as stated in 8 Sugden, Vendors (8 Am. Ed.) n. 188:
“ ‘When an estate is contracted to be sold, it is in equity considered as converted into personalty from the time of the contract,’ etc.
“This language received the approval of Judge Johnson, in Gilbert v. Port, 28 Ohio St. 276, 298, 299, who says, after quoting Mr. Sugden’s words:
“ ‘The learned author is discussing the effect of a devise of real estate on lands contracted to be sold and not conveyed.’
“The doctrine finds further recognition and approval in Smith v. Lowenstein, 50 Ohio St. 346, 357, to which I refer without quoting.
“A more elaborate elucidation of equitable conversion may be found in Pomeroy’s admirable work on Equitable Jurisprudence. See especially Vol. 1, Secs. 105, 368, and note on page 403; and Vol. 3, Sec. 1261. It is distinctly asserted by the author that the vendor’s interest in the contract to sell real estate is personal, and upon his death will descend, not to his heirs or devisees, but to his personal representatives. It is clearly indicated also that in case of payment of purchase money by the vendee to such heirs or devisees, the money belongs and should be paid to the personal. representative.
“Mr. Sugden (Vendors & Purchasers (9 ed.) n., star paging 178) says the same:
' “ ‘If the vendor die before payment of the purchase money, it will go to his executors, and form part of his assets.’
‘‘Assuming- this doctrine, which seems well settled, to be correct, does it leave any right in the devisees to a rescission of the contract ? At the best, they would seem to have received from their ancestor only a naked, legal title to land, while all other rights and interests of Peter A. Stang under the contract descended to the representatives of his personal estate.” '
“Under proper circumstances a right of election to rescind or affirm a land contract for default of the vendee resides in the vendor. He may elect to site for the purchase money or endeavor to reclaim the land. At his death, this right of election is entirely extinguished or descends to either his personal representative, or to his heirs or devisees. It is inconceivable that it can take both directions. If, as asserted by Mr. Pomeroy and Mr. Sugden, and recognized by our own Supreme Court, the estate of the vendor in the land became personalty by conversion, then as such it descended, and the right of election to affirm or disaffirm the contract descended with it. The executor or administrator acquired the right of the vendor to sue for the unpaid purchase money, or at his election to rescind the sale and recover the land. The land, when so recovered by the personal representative, would logically be treated as personalty in the distribution of the decedent’s estate. To hold otherwise and.permit the devisees to rescind the sale would either rob the personal estate of one of its assets, its chose in action for the unpaid purchase money, or subject the vendee both to the loss of the land and to a possible judgment on the notes in favor of the executor or administrator, an inequity which, of course, is not to be thought of.”

We have no question but this cause of action survived, but in our judgment it is clear that it survived to the personal representative and not to the devisees. Therefore the demurrer to the amended petition will be sustained. The petition will be dismissed, and there will be judgment entered against the plaintiffs for costs.


source: Caselaw Access Project

author: SIBLEY, J.

license: Public Domain

text:
    STREETS — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    June 18, 1898.]
    Sibley, Russell and Cherrington, JJ.
    Henry v. Cincinnati.
    1. Streets and Their Uses Defined.
    A street, in contemplation of law, does not consist simply of that part of the surface used for travel, but includes as much of the space above and that which underlies as is requisite and necessary for all proper street and municipal uses that are known to the period in which the street is occupied and used, within whatever height or depth that is necessary for the purposes of proper construction.
    2. General Power of Municipality to Regulate Streets.
    It is within the power of a municipal corporation to regulate the use of its streets and prescribe the mode and manner of such use, with a view to such regulations as are necessary for the safety and proper consideration of the general interests and rights that belong to citizenship in a community.
    3. Abutting Owner’s Right to use Space Above and Below Surface of Streets.
    An abutting owner may use the street and the space above and below the surface in any manner permissible by the city ordinances, so far as the mode of use is concerned, where such use contravenes no right of the city to its actual occupation and use for street and municipal purposes.

      i. Section 3471a Rev. Stat., Regulating Electric Wires in Streets, Prospective.
    Sec. 3471a Rev. Stat., prohibiting the placing, constructing and maintaining of wires through a street for conducting electricity for lighting purposes, without the consent of the municipality, has a prospective operation on acts accomplished before its passage.
    5. Section 3471a Rev. Stat. Prohibits Stringing of Electric Wires Through Street, but not “Across” Street.
    The stringing of electric wires - “across” a street at the height of eighty feet above the surface, is not a violation of Sec. 3471a Rev. Stat., prohibiting the placing and constructing of such wires “through” a street without the consent .of the city.
    6. Municipality Enjoined from Removing Electric Wires Above Streej Surface, .When.
    A municipal corporation has no authority, by virtue of its general control ovi r streets, to remove wires stretched across a street, at a height of eighty feet above the surface, from a private electric plant on abutting property to the property of another abutting owner, for the purpose of conveying electricity for lighting purposes, such wires not interfering with any street or municipal purpose, where the arrangement for the use of the electricity and its conveyance for the use of others áre in conformity with the requirements of the city ordinance, although the consent of the city has not been granted; and their removal by the city will be enjoined.
    Coffey, Mallon, Mills & Vordenberg, for plaintiff.
    Theodore Horstman, corporation counsel, for defendant.
   SIBLEY, J.

The action below is a case in chancery, seeking relief in injunction. It seems that the plaintiff, trustee, is the owner of certain real estate in this city, in one block, and in connection with her business thereon has made some sort of small electric plant, to be used for her own purposes, and has proceeded to extend the use of it to some of the neighbors within the block who wanted the benefit of the light, which she could furnish. That is one aspect of the case. Across the street from the plaintiÉ is another neighbor who wanted some benefit of this light, and so all arrangements were made. Wires at the height of eighty feet were stretched across the street — from house-top to house-top, about eighty feet above the street. The main body of the evidence is practically one of an agreed statement of facts; that the plaintiff is the owner; that these arrangements have been made; the wires are suspended for use, with a view to use, and that she is an abutter upon this street; that the arrangements for the use of this electricity, or the conducting of it for use to others, are in perfect conformity with the requirements of the ordinances of this city, regulating the use of the electrical power for lighting, furnished under the general authority of the state by others.

The sole contention on which the case is made to turn, is, that no right to do this has ever been granted by the ordinance of council. It is agreed the regulation of the use by plaintiffs are rather in harmony with the requirements of the city in that regard, and it at last resolves itself into the question whether they can make this use in the two features specified without the permission of the council. That resolves itself finally into what is the property right of a citizen under such circumstances in a city like this.

Plaintiffs don’t dispute the proposition made on behalf of the city that it is within the power to regulate the use, prescribe the mode and manner, with a view to such regulations as are necessary for safety and for the proper consideration of the general interests and rights that belong to citizenship in a municipality. One point of contention was that council has not authorized this, refuses to authorize it, and now threatens to cut down and tear away these wires. The lots are described as lots on that avenue, and we take it from the evidence, enough is shown to make it apparent that they are parts of a piece of land formerly abutting upon the old road, and therefore abutters on the street, and they are the owners of the fee to the center of it. The mere fact that a man sells a lot here, perhaps by metes and bounds as to the line of a street, would not necessarily accomplish that result, so far as the title is concerned. A case is cited in Lough v. Machlin, 40 Ohio St. 332, on that point. That, however, was where a party undertook to make a dedication, lay out an addition and make a dedication of -streets, and it never was accepted, and the- court held that the dedicators did not in effect describe the lot, as bounded by an alley, but by the east line. The rule in the construction of deeds making a stream or a road or a way the boundary does not apply.' That was a case where they sought to estop the dedicator, and it does not militate against the general effect of the evidence here, that this plaintiff may be regarded as the abutting owner, holding, at least so far as the city is concerned, the fee of this land which has been dedicated to a public use of this'nature.

Prior to going into the two points that I wish to state shortly, a statute passed in 1896 is cited with reference to such cases, and some one interested procured an amendment to Sec. 3471 Rev. Stat., designated Sec. 3471a Rev. Stat., which provides, that in order to subject the crossing of lots and alleys by persons in the way that is set out in this petition, through their'own private arrangements to subject the same to municipal control, no person or company shall place, string, construct and maintain any line, wire, fixture or appliance of any kind for conducting electricity for lighting, heating or power purposes, through any street, alley, lane, square, place or land of any city, village or town, without the consent of such municipality, and this inhibition shall extend to all levels, above and below the levels of such public way, as well as along the surface thereof.

Now, it may be said, in the first place, that this does not take it “through” a street. If I go “through” a street that is one thing. If I cut across the street that is another. This says through a street, and it does not say across, but be that as it may, manifestly from’the language of the proviso, it has a prospective effect on this act which has already been done, and which the city seeks to strike down, in view of the authority claimed to be vested in it. Furthermore, there is a penalty attached. It is made a criminal act, but I don’t see that that aids the city any. If that is a valid statute against the property owners’ right, and the maintenance of those wires violates it, the party becomes subject to the penalty.

All that is involved here is whether or not the city is authorized in virtue of its general municipal authority over streets, and as against the property right of an abutter upon a street, to tear the wire down. It is a case not free from difficulty perhaps, but we have considered it pretty fully, and this court is rather inclined to be with the property owner than with the city on this point.

What is a street to begin with? That is the first proposition to be determined. The city has plenary power to contrpl its streets, in the exercise of a proper discretion, as to what is needed for the general welfare of the city, and of those who shall use the streets. That authority ,is unquestionably conferred by statute, but it leaves open the question, what is a street. Is space ten thousand feet above any part of the street? If it is, the city can regulate the flying of balloons ten thousand feet above the street, if they cross the street, or make it a penal offense to fly a balloon along a street in this ctiy, at the height of ten thousand feet above it. Can the city prevent the owner of the fee from penetrating the soil from his lot, a depth of a hundred feet out under the street? Is that any part of the street? If the city were invested with the fee for street purposes, would that be any part of the street? The street is what the city has control .of. It has not the control above the street, except under limitation. Now, I don’t mean to imply that the mere naked surface is the street, or that the depth under it, to which a pavement may be 'laid alone, is the street, or that ten feet deep is no part of the street for purposes of control.' The proposition we lay down and conceive to be law is this: 'The surface, with as much of what underlies it, as is requisite for all the street uses, that are known to the period in which the street is occupied and used, not merely for travel upon it, but for sewerage purposes— nowdays for gas pipes and water pipes, and all things of that sort, within whatever depth is necessary for the purposes of the proper construction; and if the city were to see fit to tunnel, for the purpose of a tramway as is done in some parts of London, to the extent requisite for that, if it arose out of the necessities of travel, and subject to the right of use of this kind, to the extent necessary for the full and complete and safe enjoyment of -the streets, in the modes in which it may be used, the city has, I say, a complete and plenarv power over them, for the purposes of control, and beyond that it has nothing. So if I go up a thousand feet above the streets of this city, I don’t regard myself, although I may sustain myself by balloon or otherwise above the street, as being in it, and if I am the owner of an adjoining lot and see fit to dig a hole that will go down a hundred feet right under the street, at the end of it, and I go down there and occupy for proper purposes, in such a way that in nowise injures the street, I am not in the street; I am under the street in the one case, and I am above it in the other.

Now a court don’t draw fine lines upon this proposition as to the height or depth perhaps, and when the present case is cited it becomes apparent that a hundred feet below the surface is no part of the street, except as a right of support to it, and a thousand feet above the street is no part of the street, because b is too far for any practical regulation or control of the street: but fifty feet above, it may be. Tn modern buildings one hundred feet mav be — two hundred,-three hundred, for I believe erections of that height are found in some of the great cities of the country, and if we were to get a style of building that would carry us into the Eiffel Tower line of construction, we might go a thousand feet above, and the city have certain purposes of regulative control. Now the city says in effect, by its contention here, that when a private owner uses the street for the purposes of a wire to cross it, in order to convey electrical fluid which he is to generate, and passes it across the street to an adjoining owner, in conformity with the city regulations in regard to the management of that form of business in the city, which the petition shows is conducted here, and conducted largely and widely — this is not the introduction of a new use by the private owner, but it is a common use, which he seeks to exercise, b. crossing at that height, precisely as the city provides in its ordinances may be done by others, so that if the private owner has the right to' use, there is no contention that he has not conformed with the regulations for the use, or the mode in which the city has prescribed.

I don’t find anything, any authorities, except general propositions that are in the books, that aside from what is necessary to the city’s use of the streets, not only for actual occupancy, but for regulative control, indicating the private owner has no rights; he may dig his hole underneath the street, and as we think he may make his use above it if he sees fit until you reach the line of the limit of use, or if it is still within the city’s control as to the mode of use.

But the city seeks to have a right to monopolize this use, to absolutely deny it to the private owner. That is the real point in contention. Now, what we think is, that the private owner may use the street in any way that is permissible by the ordinances of the city, so far as the mode of the use is concerned, where i' is utterly impossible that it shall contravene any right of the city in its actual occupation and use. Now, that is the case here, and there is not anything in the authorities that perhaps exactly touch it. Only on general principles we have resolved it. We place it upon the ground that the property owner has á right to use it in any way that does not contravene the city’s use, and that conforms with its regulative control as to the mode of use. Upon that point there is no dispute between us. It is not worth while to prolong the discussion. It is not worth while for us to go into hair splitting distinctions on the authorities in the books. It is not our habit when we find a case resting upon a clear basis of principle and general doctrine, to spend time in undertaking to say that this case resolves this precise point, and that one that. We don’t regard it as our purpose to try and enlighten counsel in regard to the specific effect of our decisions, in order to make a general exegesis of all the cases that might in some remote way touch the matter. We think the decree of the court below substantially gives the relief to .which the plaintiff is entitled, and that decree may be entered in this court.


author: SWING, J.

text:
    ERROR — JUSTICE OF THE PEACE.
    [Hamilton (1st) Circuit Court,
    February, 1903.]
    Swing and Jelke, JJ.
    Roller v. Esman.
    Failure of Common Pleas to Comply With Sec. 6733 Rev. Stat. Error.
    Under the provisions of Sec. 6733 Rev. Stat. a judgment of the common pleas court reversing a judgment of a justice of the peace on error which does not retain the case for trial is erroneous, and the circuit court will reverse the judgment to that extent and remand the case for trial and final judgment.
    Gideon C. Wilson, for plaintiff in error.
    John A. Deasy, contra. ’
   SWING, J.

Section Rev. Stat. provides that when the proceedings of a justice of the peace are taken on error to the court of common pleas, and in such action the judgment of such justice is reversed, the court shall render judgment of reversal, and the subject of the action shall be retained by the court for trial and final judgment as in cases on appeal.

The judgment of the court in this case was simply one of reversal and for costs, and the court did not order the case retained for trial in said court. In not rendering -such judgment the court erred, and to that extent said judgment is reversed and said court is hereby ordered to render judgment in said action, retaining said action in said court for trial, and final judgment and a special mandate is ordered to issue to said court to carry this judgment into execution.


author: PER CURIAM.

text:
    APPEALS — MOTIONS.
    [Hamilton (1st) Circuit Court,
    February, 1903.]
    Giffen, Jelke and Swing, JJ.
    Wilder v. Wilder et al.
    Appeal Does not Lie to Overruling of Motion in Partition Cas
    Error, and not appeal, lies to the action of the court in overruling a motion for the allowance of attorney fees in a partition case.
    W. S. Little, for the motion.
    The judgment, or decree, from which an appeal may be taken, is that which finally determines the rights of the parties. It has not been the policy of this state to allow appeals from orders of the court of common pleas in proceedings, after judgment, such as confirmations of, or setting aside sales of real estate and the like. Thé action of the court of common pleas in such cases, is reviewable only by proceedings in error. McRoberts v. Lockwood, 49 Ohio St. 374, 375 [34 N. E. Rep. 734] ; Reeves v. Skenett, 13 Ohio St. 574; Browne v. Wallace, 60 Ohio St. 177, 178 [53 N. E. Rep. 957],
    Thos. L. Michie, contra.
   PER CURIAM.

The motion filed in this cause to dismiss the appeal should be granted.

The action in the court of common pleas was one in partition. On the issues joined between the parties the court rendered a final decree determining the rights of the parties on March 28, 1900. From this decree an appeal might have been taken. McRoberts v. Lockwood, 49 Ohio St. 374 [34 N. E. Rep. 734],

On January 22, 1903, Heilker & Heilker filed a motion in said cause for an allowance of attorney fees. This motion was overruled by the court on March 17, 1902; from the overruling of this motion, Heilker & Heilker prosecute this appeal. An appeal does not lie from the action of the court on a motion in an action of this character. Error is the only remedy.


text:
    WILLS — PARTITION.
    [Lucas (6th) Circuit Court,
    October 3, 1903.]
    Haynes, Parker and Hull, JJ.
    FREDERICK A. J. Weiland, an Infant, by his Guardian, v. Anna S. Muntz et al.
    1. Wills — Remainder to Children Generally not a “Provision” under Sec. 5961 Rev. Stat.
    A devise of real estate by a testator to his widow for life, with remainder to his children generally without naming them, is not a “provision” for an after-born child within the meaning of Sec. 5901 Rev. Stat., notwithstanding the interest in remainder may subsequently inure to the benefit of such child.
    2. After-born Child a Tenant in Common under Sec. 5961 Rev. Stat. — Not a Creditor — Partition—Intestate Property. >
    Where á testator disposes of his estate by specific devises to children living at the date of his will, without making provision therein for an after-born child, and subsequently thereto acquires other property of which he dies intestate, such after-born child is not a creditor of the estate or devisor under Sec. 5961 Rev. Stat., but is a tenant in common in each parcel specifically devised and in the undevised property, and is entitled as such to the partition of his respective interests in both. Hence, in an action for partition against a devisee, .or his grantee, such after-born child cannot be relegated, in the enforcement of his rights, to the undevised property or an interest in remainder in another tract, nor be compelled to work out and accept the value of his interest in money, in an action for contribution against the devisees or their grantees.
    3. Substitution of new Plaintiff for Disqualified Guardian; not Error.
    Where an executrix, who is disqualified from acting as guardian of the estate of a minor heir, has commenced an action in partition as guardian against a devisee under the will, it is not improper'for the court, on motion of the guardian and against, the objection of defendant, to substitute as plaintiff another person subsequently appointed guardian in her stead.
    Appeal from common pleas.
    Beard & Beard, for plaintiff.
    Smith, for defendant.
   PARKER, J.

This is an action for the partition of real estate. It comes into, this court by way of appeal. It is submitted to us upon the pleadings and an agreed statement of facts. There have been various parcels of land partitioned with respect to which no question has been made. It is now sought to partition a certain city lot and a part of another lot, of which the defendant, Gooderman, claims to be the owner in entirety. It is claimed by this defendant that the plaintiff has no title to or interest in this real estate; that plaintiff is not a tenant in common with defendant, and that plaintiff, therefore, has no right to have a partition.

It appears that John Weiland was the owner of this and other real estate, in his lifetime; that he died in the year 1889, in Wood county, Ohio, testate as to part of his estate and intestate as to part; that his will was executed in 1880; that a certain tract of land with respect to which he died intestate (a tract of about thirty-nine acres) was situated in Wood county, Ohio, and was acquired by him after he had made his will. It also appears that the plaintiff, who is one of his children (there being in all fourteen children) was born in the year 188G, some six years after this will was executed and some three years before the death of decedent.

It is contended on behalf of the plaintiff that no provision was made for this child in the will, and that therefore, by force of Sec. 5961 Rev. Stat., the will was revoked, pro tanto, or was invalid as to this child, and that this child comes in for a full portion of the estate, and that it takes by inheritance precisely as if no will had ever been made devising any of these lands, and that therefore it takes its share as a vested estate in each parcel of land of which the decedent died seized.

On the other hand, it is contended that this is not so; that, in the first place, there is provision made for this child, so that it takes nothing by force of Sec. 5961 Rev Stat.; also that, if provision were not made so that it takes an interest under that section,, what devolves upon it is a right to recover an aliquot part of the estate of the decedent, not in kind, not in specie, whether in land or in chattels, but as if it were in the nature of a debt of the estate to such heir, or a claim in her favor as a creditor enforceable against the estate and against the heirs as well.

By his will, the decedent devised one tract of land in Wood county, Ohio, to eight of his children, naming them, and devised this lot and part of a lot in controversy to five other of his children, naming them. This still left undisposed of a fifty-acre tract of land in Wood county, constituting the homestead, with respect to which his will contains a provision that his- wife (who afterwards became his widow) should have an estate for life therein, and that the remainder should go to his children generally without naming them. It is needless to repeat that the name of the after-born child did not appear in the will. The undevised thirty-nine acre tract was acquired by the testator after the execution of his will.

It is contended on behalf of defendant, Gooderman, that the plaintiff should be relegated in the enforcement of his rights to the undevised land in Wood county and to this fifty-acre tract of land; that he should not be permitted to recover anything out of either of the tracts specifically devised to the children named.

There was a preliminary question in the case which I have passed by, and which I will notice here. Suzanna Weiland is named in the will as executrix, and she has qualified as executrix. By the will she is made guardian of all the minor children, and by virtue and in pursuance of that provision of the will, she was appointed guardian of this plaintiff as well as of the other minor children of the decedent. Her right to prosecute this action as .such guardian was questioned by a demurrer filed in this case. It seems to have appeared to the court below that she was disqualified from acting as such guardian, and it seems to us very clear that, under the circumstances, she was, disqualified. It also appears by the decision in the case of Scobey v. Gano, 35 Ohio St. 550, which was a proceeding to appoint as guardian a person duly qualified, that the former action of the court in appointing a disqualified person might have been attacked collaterally — that is to say, it might be ignored —and it is urged here that the action of the court of probate in appointing this guardian may be and should be ignored, and that therefore the case is not properly in court. The court below, however, on motion of the plaintiff, permitted another person to be appointed subsequently as the guardian of the estate, and to be substituted for the person disqualified to act as such guardian. This was done over the objection of this defendant; but subsequently the .defendant answered, and the case went to trial, and was decided in the court below upon the merits, and from the judgment of that court an appeal is taken here.

Aside from the question as to whether or not the defendant waived-this objection by answering instead of allowing judgment to be entered and prosecuting error, we are of the opinion that the action of the court in allowing this substitution was strictly legal and regular; that the substituted guardian is duly in court; that the defendant is duly in court, and that the judgment of the court herein will be binding upon the parties, so that they need have no apprehension of such judgment as may be entered herein being ignored or treated as a nullity because of the action having been begun by Suzanna Weiland as guardian. Upon that point we hold against the defendant.

Coming back now to the consideration of the main question, as to whether plaintiff acquired any estate or interest so as to become a tenant in common in this property, I should state a few additional facts.

Part of the owners of the undevised thirty-nine acre tract in Wood county, soon after the will was probated, in 1890, conveyed their interests to a man by the name of Radcliff. ' Afterwards, Radcliff instituted an action, in partition, in Wood county, making this plaintiff a party defendant. Plaintiff, by a guardian ad litem, appeared and answered and claimed an undivided one-fourteenth. The land was partitioned and a one-fourteenth interest was set off to and received by the guardian of the plaintiff. Soon after the probating of this will the ■ owners of the lot and part of a lot here in controversy, conveyed the.same, by warranty deed, to one Brown. Brown subsequently conveyed the property by warranty deed to the defendant, Gooderman.

Among the claims of Gooderman is this, that this minor (this plaintiff) should have had his interest in the whole estate worked out for him upon the partitioning of the tract of land specifically devised to the eight heirs, or upon the partitioning of the thirty-nine acres of land not devised; or that it should be worked out of the fifty-acre homestead tract in which the widow has a life estate. The tract specifically devised to the eight heirs is not partitioned in this proceeding. The claim is that primarily it ought to have been worked out of the thirty-nine acres, and that it not having been worked out there, plaintiff is precluded from having it worked out of this land specifically devised; also that the plaintiff should seek satisfaction of his claim out of the fifty acres yet undis-posed of. It will be remembered, however, with respect to the fifly acres, that a life estate having been given therein to the wife, that during the existence of that life estate it cannot be partitioned as against her wish, or without her consent, and partition cannot now be had, so that if the plaintiff should undertake to work his interest out of that land, his right to do so probably would be postponed, until after the death of the widow. It might be affected by some form of decree, but it could not be occupied or enjoyed or the plaintiff could not have an interest in possession until after the death of the widow.

The language of the statute upon this subject does not seem to us to be entirely clear, or free from doubt as to the question made. It seems to us to afford very strong ground for the contention made by the defense. A preceding section (Sec. 5959 Rev. Stat.), making provision for a posthumous child (one born after the death of the testator), provides that the birth of such a child shall have the effect of revoking the will, if it were the only child. Section 5961 Rev. Stat. says nothing about the will being revoked or rendered a nullity, either pro. tanto or otherwise, and it provides for the cases of posthumous children where there are other children, and pretermitted children who are not posthumous, that is to say, such as are born after the making of a will and before the death of the ancestor, and the plaintiff comes within that class. It is not a posthumous child, but stands upon the same ground here, there being other- children. And this section of the statute reads:

“When a testator, at the time of executing his will, dhall have a child absent and reported to be dead, or having a child at the time of executing the will, shall afterward have a child who is not provided for in the will, the absent child, or the child born after the execution of the will, shall take the same share of the estate, both real and personal, .that he would have been entitled to if the testator had died intestate* * *.

In this case, the share would be one-fourteenth, and therefore he must take one-fourteenth of the estate; but whether in specie, or whether, as if there had been no will made, he would inherit an interest in each tract of land, the statute does not say. It provides further, following right along with the reading, that “toward raising which portion the dev-isees and legatees shall equally contribute in proportion to the value of what they shall respectively receive under the will, unless in consequence of a specific devise or bequest, or of some other provisions in the will, a different apportionment among the devisees and legatees shall be found necessary, in order to give effect to the intention of the testator, as to that part of the estate which shall pass by the will

That, I say, seems, upon the reading, to afford some ground for the contention of the defendant here that there is a portion to be raised by contribution of the devisees, respect being had to the will and the purpose of the testator, so that if a certain share should be exonerated from the burden, that circumstance should be respected in apportioning the obligation; that the portion should be made up by contribution, not necessarily in specie, as if it were a general claim, and that the after-born child will not inherit in the sense or in the degree that he would if the ancestor had died intestate. And there are other clauses of the statute bearing upon this point and adding force to this contention, in Secs. 5978 and 5979 Rev. Stat. And our attention is called to the fact that this statute is, substantially if not exactly, a transcript of the statute of Massachusetts upon the same subject, which has been in force in that state for a long time, and it is urged, that therefore, upon a principle applicable to a case of this kind, it should receive the construction that the statute in Massachusetts has received at the hands of the courts of that state, and in that connection, our attention is called to a case in Bowen v. Hoxie, 137 Mass. 527, where it is held, in effect, that the claim is in the nature of a debt of the estate. In that case there were not devises of real estate, but were bequests of personalty, and in working out the share of a posthumous child the court required that the property which constituted the residuum of the estate, that not specifically bequeathed, should be first exhausted before a specific bequest should be touched. I will not stop to read from the case. It appears to proceed upon a very fair course of reasoning.

Before proceeding further with this discussion, I should come back to a matter which I have passed; and that is, the question made as to whether or not provision was made for this child in the will? Now we have cited to us against the contention of the defendant, the case of Rhodes v. Weldy, 46 Ohio St. 234, 235 [20 N. E. Rep. 461], I read from the opinion, by Chief Justice Owen. The child not provided for in that case was named Elizabeth, and the judge says:

“If Elizabeth was provided for by the will of her father, it was not revoked by her birth after its execution, and the judgment below should be affirmed. If there was such provision made, it is to be found in these words: T will and devise to my wife, Harriet Young, all my real estate wherever situate, to use and occupy as to her may seem proper, during her natural life, and after her- death to the heirs of her body ■ begotten.’ ”

Substantially the same as the first provision of the will under consideration-; that is, item three of that will. He then continues, p. 236:

“It will not be contended that this is a specific provision for the plaintiff. If it is a provision at all, it is so because the language is comprehensive enough to include her. It was evidently written with a view only to the maternity of the ‘heirs of her body begotten,’ and without reference to their paternity. It was intended as a comprehensive direction of the course which the property should take after the immediate object of the testator’s bounty should die, unless she should die without issue, in which case, other direction is made in the will. Much learning and research have been expended in discussing the character of the devise in remainder, and whether it is a vested or contingent interest.
“In the view we take of the case, this is wholly immaterial. The question is, has Elizabeth ‘been provided for in the will’ in the sense of the statute. It is not ■ conclusive of this question to say that a ‘disposition’ has been made which may inure to her benefit; ‘Disposition’ and ‘provision’ are not necessarily convertible terms.”

He then proceeds to hold that, notwithstanding the fact that this general provision in favor of the children or heirs of the body of his wife would inure to the benefit of this after-born child, the same as for the benefit of the others, that could not, under the statute, be deemed a provision for that child. That was a decision under Sec. 5959 Rev. Stat, and not under Sec. 5961 Rev. Stat.; but according to our view, the statutes in this respect are alike, and therefore, the authority is in point.

A later case, German Mut. Ins. Co. v. Lushey, 66 Ohio St. 233 [64 N. E. Rep. 120], is under Sec. 5961 Rev. Stat., and is in point as indicating what the court regard as a “provision” for an unborn child. There the will specifically provided: “Should any child or children, we now having only one, George Gabriel, be born to me hereafter, it shall in no wise alter or revoke this will and testament.” Now the wife of the testator in that case was at the time enciente with this after-born child, and he seems to have had in mind the probability of its being born alive and attempted to cut it off and made a provision in respect to it; but the Supreme Court says that is not a provision fop it, but against it, and gave full force and effect to Sec. 5961 Rev. Stat., and so gave to it an undivided one-half of the estate.

Now I will say something more upon this question as'to the right or interest that the plaintiff inherited- — whether the right of contribution is to be worked out in a court of equity as if it were a claim, secured, perhaps, by an equitable lien, or whether it was an estate cast upon him by inheritance the same as if there had been no will.

I have already indicated the line of argument of the defendant and the chief authority relied upon, to wit, Bowen v. Hoxie, supra; and will say that we were very strongly inclined at first to follow that decision and that course of reasoning with respect to our statute; but, upon further consideration, we have concluded tlpat the question is set at rest, in the state of Ohio, by this decision to which I have just adverted, German Mut. Ins. Co. v. Lushey, supra, and that the decision there requires us to resolve this 'question against the contention of defendant. To be sure, in that case this precise point does not appear to have been debated or in any way called to the attention of the court, and perhaps was not considered by it. There was a single tract of land; the land was devised by the husband; the child living at the time the will was executed was cut off by the will, and the court decided that the child after-wards born was not cut off. The question arose between the after-born child and the mortgagee of the husband. The husband had undertaken to mortgage the entirety. _ The after-born child, in the action between it and the mortgagee, claimed an undivided one-half. The court held that the child was entitled to an undivided one-half. It does not hold, however, that it had a right to compel contribution or had a right to compel the mortgagee of the entirety to make up to it the value of this undivided one-half, he retaining the title to the land, but it holds that by force of this statute the title to an undivided one-half of this land was cast upon this child. After discussing the case, the opinion closes with this sentence, p. 241:

“It follows, therefore, that George Lushey, the husband of the testatrix, when he gave the mortgage to plaintiff in error, owned but one-half of the premises described in the mortgage, and that the judgment of the court of common pleas was right, and that the circuit court did not err in affirming the judgment.”

If the court had taken the view contended for by the defendants here, it would have been obliged to say that he owned the whole premises, subject to this charge, and would have been obliged to adjudge that the child could not recover in the form of action then pending before the court, but must enforce payment of an amount equal to the value of the estate. The action was by the grantee in a mortgage to foreclose the mortgage upon the entirety; it was in an action where the child appeared and answered with respect to that state of facts that the court says that the plaintiff in error owned one-half of the premises described in the mortgage. The syllabus reads as follows:

“Where a testatrix, having-a child living, devises all her estate to a third person (in this case her husband), without making provision in her will for an after-born child, such after-born child, if it survive the testatrix, by virtue of the provisions of Sec. 5961 Rev. Stat., will inherit from the mother as her heir at law, as if she had died intestate, notwithstanding, that by clear and explicit language in the will, such testatrix undertakes to disinherit such after-born child.”

Now in entering judgment here, as we shall, in favor of the plaintiff and against the defendant, adjudging that the plaintiff is the owner of an undivided one-fourteenth interest in this land and is entitled to partition, we believe that we are following the law as laid down by our Supreme Court. There, is much authority upon this question and in support of this conclusion, or, I may say, in harmony with this decision of the Supreme Court. We cite 2 Woerner, American Law Administration 1240, being the latter part-of Sec. 565, and cases there cited, which we have examined, and one especially, which I shall not take time to read from, but which seem to be very much in point — the case of Ward v. Ward, 120 Ill. 111 [11 N. E. Rep. 336].

There is a question presented in this case, as to improvements, rents and profits, but we understand that the rights of the parties as to these, will be worked out without the intervention of the court. The case will be retained in this court and an order of partition will be issued out of this court.


text:
    PAYMENTS — CRIMINAL LAW.
    [Lucas (6th) Circuit Court,
    October 3, 1903.]
    Haynes, Parker and Hull, JJ.
    Fred B. Brusoe v. The Retreat and Toledo.
    1. Money Deposited in Lieu of Bail in Unlawful Arrest, not a Voluntary . Payment.
    Money, voluntarily deposited by a person lawfully arrested, in lieu of bail for appearance and forfeited for nonappearance, cannot, be recovered, but this rule does not apply when the arrest is unlawful. Hence, where persons are arrested for the violation of a city ordinance without a warrant, and it does not appear that they were discovered by the officer in the commission of the crime charged or that the circumstances were such as to authorize an arrest without a warrant, a deposit of money by such persons in lieu of bail is not a voluntary payment of money and may be recovered from the city, or a charitable institution to which it ijas been paid by the. city.
    2. Forfeited Moneys Paid by City to Charitable Association Held in Trust.
    A charitable association to which all fines and forfeitures arising from certain offenses are paid over by a city’s courts under a statute, as for instance Sec. 781-30 Rev. Stat., receives such moneys as gratuities and acquires no better title thereto than the city which holds the funds in trust for the parties paying in the money, and is bound upon demand of the person entitled thereto to deliver them up.
    Peter Emslie and A. C. Bowersox, for plaintiff in error.
    M. R. Brailey, city solicitor, for defendants in error.
   PARKER, J.

This action was brought by Brusoe in the court below against The Retreat and the city of Toledo, to recover back $160 which he had deposited in lieu of bail, in the police court of the city, and which money had been forfeited and. withheld from him. It appears that on August C, 1900, Mr. Brusoe and his wife, and some other women who were said to have been living at a place kept by himself and wife, were arrested by a police officer and taken to the police station on a charge of keeping a house of prostitution; that is to say, Brusoe and his wife were arrested on that charge and the others were arrested on the charge of being in.mates. They were arrested without affidavits having been previously filed charging them with these offenses and without warrants having been issued and put into the hands of the officers for their arrest.

It is charged in the petition in the case that these moneys were wrongfully and unlawfully exacted from Brusoe and such money unlawfully detained and delivered to The Retreat, an institution established in the city of Toledo for a home for friendless girls, which, under a certain statute of the state of Ohio, is authorized to receive all funds or forfeitures arising from the prosecution of houses of ill fame or prostitution. It is not charged in the petition that the arrest was made without warrant, but the evidence in the case tends to show that that was true. Upon trial of the case in the court of common pleas, a verdict was returned by the jury in favor of both defendants — both Toledo and The Retreat. On motion of plaintiff, that verdict was set aside as to The Retreat, but it was allowed to stand as to the city. Error was not prosecuted to that ordef or to the judgment founded upon it in favor of the city, 'and the petition in error in this case was not filed within four months from the date of that judgment, so that the case against the city came to an end. Subsequently the case was retried as against The Retreat, and after the evidence was in on behalf of the plaintiff, a motion was made to rule the evidence from the jury and to enter judgment in favor’of The Retreat. It does not appear from the bill of exceptions that this motion was acted upon, and witnesses were then called on behalf of the city, who gave some testimony, and thereupon the motion was renewed and the court ruled in favor of The Retreat and directed the jury to return a verdict in favor of The Retreat, which was done. A motion for a new trial being made and overruled, judgment was entered, and now error is prosecuted here by Brusoe.

The testimony in the case tends to show that Brusoe and his wife were arrested without a warrant having been legally issued, no proper affidavit having been filed; it tends to show that the arrest occurred about 11:30 p. m. of August 6, 1900. Mr. Brusoe testified that he was in custody not to exceed about twenty minutes; that then the bail was fixed by some officer, in his case at $100, and in his wife’s case at $100; they having previously searched him and taken from him about $117, or, as other witnesses say, $122; that he de'sired them to retain $100 of his money as the. bail in his case, and as he was not able at the time to furnish bail in his wife’s case, the $100 was retained and the excess was returned to him. Upon the next day, the bail in his wife’s case having been reduced to $50, he produced $50 and paid it over in lieu of entering into a bond, and thereupon his wife was released. The records Introduced in the case tend to "show, from their dates, that the affidavits charging these offenses upon Brusoe and his wife, were made out and signed upon the following day, to wit, upon August 9, and that the warrant was issued upon August 9. The cases were continued by the police court for a few days to a time set for trial, and neither Mr. Brusoe nor his wife appearing to answer to the charges, the bail was declared forfeited. The evidence tends to show that this money was paid over to The Retreat in pursuance of the provisions of the statute which I have mentioned.

Now it is insisted on behalf of The Retreat, that the evidence shows clearly that this money was voluntarily paid into the hands of the city officers in lieu of bail, and, that, therefore, it cannot be recovered back, and that therefore the direction of the court to the jury was right. And the testimony does tend to show, and perhaps it would not be out of place to say that, as it stands it does show, that Mr. Brusoe was not unwilling, under the circumstances, to deposit this money to obtain the freedom of himself and his wife; indeed that he was quite willing to do so. He did not tender a bail bond; there is nothing tending to show that he tendered such a bond and that it was declined and that the money was exacted in lieu thereof, but it tends to show that it was at the suggestion of Mr. Brusoe that the cash was taken in lieu of a bond.

Now that such an exaction of cash is illegal and that it may not be retained by the city, is decided in the case of Reinhard v. Columbus, 49 Ohio St. 257 [31 N. E. Rep. 35]. It is also decided in the case of Columbus v. Dunnick, 41 Ohio St. 602, that where one is arrested and at his own request makes a deposit of cash in lieu of bail, such deposit of cash, being voluntary, it may be retained and cannot be recovered back. It appears, however, in that case that the arrest was lawful, that is to say, legal. In the case at bar, however, and in the case of Reinhard v. Columbus, supra (as held in the case), the arrests not being upon affidavit and warrant, were prima facie unlawful; and’ it is therein held that where an arrest is unlawful it cannot be said that if cash or a bond is exacted, that the cash is voluntarily paid or the bond voluntarily given. The case of Reinhard v. Columbus, supra, seems to us to answer every legal question submitted to us in this case, and I read from the syllabus:

“It is illegal, unless authorized by statute, for a police officer or magistrate, to receive money in lieu of bail for the appearance of a person accused of a criminal offense.
“A police officer arrested a person for an alleged misdemeanor under a state law, before any charge had been preferred against him or warrant had been issued for his apprehension; and demanded from him, while under arrest, a deposit of money in lieu of bail for his appearance before the mayor, which deposit was made by the person arrested, to avoid imprisonment. The money was paid into the city treasury, and afterwards the city, by its promissory note, paid the same to the county; but while the money was in the hands of the city, the party who was arrested demanded of the city that it pay over the same to him, which the city refused to do. In an'action against the city by the party arrested, to recover the money, in which the legality of his, arrest became a material issue, it was incumbent on the defendant, to show, that such a. state of facts existed as justified the officer- in making the arrest without the previous issue of a warrant, and that he did not detain the party arrested an unreasonable time before obtaining a legal warrant.
“Unless established by satisfactory evidence that the circumstances were such as to authorize the officer to make the arrest without the previous issue of a¡ warrant, the payment of the money by the party arrested as a substitute for bail for his appearance, and to avoid imprisonment, is to be deemed an involuntary payment, and the sum so paid may be recovered by him in an action against the city, as money by it had and received for the use of the plaintiff.”

The matter is fully discussed by Dickman, Judge, and in the course of his opinion a number of authorities are cited in support of the decision and of what is set forth in the syllabus.

In the case at bar there was no evidence submitted tending to prove that the defendants in the police court (Brusoe and his wife) were in the commission of the crime charged, or were discovered by the ■officer in the commission of the crime charged, at the time he made the arrest without a warrant. Therefore, there being in the case at bar no testimony tending to show that there had been a legal arrest and it appearing prima facie to have been an illegal arrest, the exaction of the money, under such circumstances, cannot be said to have been a voluntary payment or delivery of the money. Precisely what the court below had in view, precisely what defect it found in the plaintiff’s case, we are not advised.

It is argued that even though the plaintiff had a cause of action against the city of Toledo, he has none against The Retreat; that the money cannot be followed, into the hands of this institution. Now it appears - that the money was not received by The Retreat in the ordinary course of business, as that phrase is used in law — it was not received for. a consideration. The Retreat was the beneficiary'; The Retreat received the money as a gift, a gratuity, and the court holding in this case of Reinhard v. Columbus, supra, that, in a case of this kind the money can be recovered back as money had and received to the use of the. person paying it, the city became substantially a trustee for the parties paying in the money, and was bound to hold the money for them, and one receiving these funds from the trustee without consideration, acquires no better title thereto than the trustee had, and is bound upon demand of the person entitled to the fund, to deliver it up, and, therefore in our opinion, a prima facie case was made out against The Retreat, and the action of the court in taking the case from the jury was wrong and erroneous, and for that reason the judgment of the court below will be reversed and the cause remanded for a new trial.

It may be that upon the first trial there was so'me testimony that convinced the jury that the arrest was legal and that therefore the city was exonerated. Unless that were true, we cannot understand why the city should have prevailed.