author: HURIN, J.

text:
    WILLS — ADVERSE POSSESSION.
    [Hancock (3d) Circuit Court,
    June 21, 1905.]
    Vollrath, Norris and Hurin, JJ.
    Morris Hosler v. Leslie Haines et al.
    1. Lex Ret Sitae Controls Will Executed in Another State Devising Ohio Lands.
    In Ohio lex rei sitae controls in the construction of a will executed in another state by a resident thereof devising lands in Ohio.
    2. Rule in Shelley’s Case will not Apply as to Devise of Ohio Lands by Foreign Will, even if Rule in Force in Testator’s State.
    Where by a will executed in another state a testator devises land situated in Ohio to his daughter “during her natural life and at her decease to go to her lawful heirs,” although under the rule prevailing-in such other state such will would have conveyed a fee simple in accordance with the rule in Shelley’s case, yet under the rule prevailing-in Ohio, these words created only a life estate in such Ohio lands.
    3. Foreign Will not Probated for Forty Years Has no Validity as against-Title by Prescription.
    A will executed in Indiana by a resident of that state devising lands in Ohio, but not probated or recorded in Ohio for forty years after its execution, conveys no interest in said lands in favor of a remainder-man-as against the adverse claims of those who have held open and notorious-possession for more than twenty-one years claiming title.
    4. Possession Is Adverse to Those Claiming under Unprobated Will even it Deed under Which Acquired Recited that Grantor Held under Such Will.
    Such possession is adverse notwithstanding the fact, that the warranty-deed under which it was originally acquired from the devisee in said will recited the fact that the grantor held title by such devise. Such recital, while said will remains unprobated in Ohio, is not such notice to the one in possession as to prevent the statute of limitations from running, in his favor.
    5. Remainder-man cannot Postpone Running op Limitations by Refusal to-Perform Affirmative Act.
    A remainder-man who has full knowledge of his rights as remainder-man, or who ought to have had such knowledge, and who knows or ought to know that such rights depend upon an affirmative act on his part to be performed, can’not, by standing by and refusing or failing to perform that act, postpone the time at which the statute of limitations will commence to run against him.
    6. Certified Copy of Will will be Presumed to Be a True Copy as to Reproduction of Place of Signature and Marginal Item.
    When the original will is lost and a certified copy of the record of said will in a foreign jurisdiction is offered in evidence and it further appears that said original record contains a marginal item and that a part of said marginal item as recorded was below the signature of the-testator, the presumption is, that said record is a true copy and a true reproduction in form of the will as originally signed by said testator, and unless this presumption is overcome by evidence, such will is by reason of said marginal item, invalid in Ohio to pass title to property-in Ohio.
    [Syllabus by the court.]

      ERROR to Hancock common pleas court.
    G. F. Pendleton, for plaintiff in error, cited:

      Collier v. Qrimesey, 36 Ohio St. 17; Williams, Real Prop. (5 ed.), star pages 266, 269, 270, 271, 272; 2 Blackstone’s Commentaries 171; 2 Washburn, Real Prop. 260; Woodbridge v. Banning, 14 Ohio St. 328; Woodworth v. Paige, 5 Ohio St. 70; Card v. Patterson, 5 Ohio St. 319; Ingraham v. Hart, 11 Ohio 255; Smith v. Bartram, 11 Ohio St. 690; Niagara Co. Bank v. Baker, 15 Ohio St. 68; Kerr v. State, 36 Ohio St. 614; Larwell v. Savings Fund Soc. 40 Ohio St. 274; Rape v. Heaton, 9 Wis. 328 [76 Am. Dec. 269]; Hadley v. Gregory, (Iowa) 2 Ohio Law Jour. p. 275; Walsh v. Dart, 12 Wis. 635; Pierce v. Railway, 36 Wis. 283; Wheeler v. Constantine. 39 Mich. 62 [33 Am. Rep. 355]; Evans v. Reynolds, 32 Ohio St. 163; Barr v. Closterman, 1 Circ. Dec. 546 (2 R. 387) ; Alexander v. Pennsylvania Co. 48 Ohio St. 623 [30 N. E. Rep. 69]; Converse v. Starr, 23 Ohio St. 491; Irwin v. Jacques,.71 Ohio St. 395; Manuel v. Manuel, 13 Ohio St. 458; Jones v. Robinson, 17 Ohio St. 171; Mason v. Myer, Wright 641; Wilson v. Tappan, 6 Ohio 172;' Swazey v. Blackman, 8 Ohio . 18; Bailey v. Bailey, 8 Ohio 239; Carpenter v. Denoon, 29 Ohio St. 379; Statute Sec. 5942; Lehigh Water Co. v. Easton, 121 U. S. 388 [7 Sup. Ct. Rep. 916: 30 L. Ed. 1059]; Walker v. Whitehead, 83 U. S. (16 Wall.) 314, 317 [21 L. Ed. 357]; Bronson v. Kinzie, 42 U. S. (1 How.) 311, 317 [11 L. Ed. 143]; Antoni v. Greenhow, 107 U. S. 769 [2 Sup. Ct. Rep. 91; 27 L. Ed. 468]; Rairden v. Holden, 15 Ohio St. 207; Commissioners v. Rosche Bros. 50 Ohio St. 103 [33 N. E. Rep. 408; 19 L. R. A. 584; 40 Am. St. Rep. 653]; Sturges v. Carter, 5 O. F. D. 428 [114 TJ. S. 511; 5 Sup. Ct. Rep. 1014; 29 L. Ed. 240]; Nowler v. Coit. 1 Ohio 519 [13 Am. Dec. 640]; Douglas v. Dangerfield, 10 Ohio 152; Raymond v. Ross, 40 Ohio St. 343.
    A. G. Fuller, for defendant in error.
   HURIN, J.

These actions, Morris Hosler v. Leslie Haines et al. and Laura P. Barr v. Leslie Haines et al., were brought by Leslie M. Haines et al., one against defendant, Morris Hosier, and the other against Laura P. Barr, to recover possession of certain lands in Washington township, Hancock county, Ohio, which defendants and their grantors have held for about forty years past.

As the two cases are identical in principle and are based on the same state of facts, they will be considered together.

It appears by the evidence that one Joshua Kelly, late of Auburn, DeKalb county, Indiana, was in his lifetime seized in fee of the land in question consisting of eighty acres, more or less, in Washington township, this county:

That, by his last will and testament said Joshua Kelly devised said lands to his daughter, Elizabeth Haines, in the following terms:

“Eighth. I give, bequeath and devise unto my daughter, Elizabeth Haines, of Iowa, eighty (80) acres of land situate in Hancock county, Ohio, for her during her natural life and to be held by her to her separate use and in no wise controlled by her husband, and at her decease to go to her lawful heirs by whomsoever begotten. I also give Elizabeth Haines the sum of two hundred dollars in money to be by her expended and laid out in improving said eighty acres of land, ■and to be used by no other person and for no other purpose whatever. ’ ’

This item 8 was not written in the body of the will, but so far at 'least as the record shows (and the original will is .lost) was written transversely along the left hand margin of the paper, a portion of such transverse writing being below the signature of the will.

It appears further in evidence that in Indiana the familiar “rule in Shelley’s case” prevails, and that by this rule the estate so conveyed to Elizabeth Haines by this will would, if the land had been situate in Indiana, have been a fee simple. Teal v. Richardson, 160 Ind. 119 [66 N. E. Rep. 435].

In Ohio, the “rule in Shelley’s case” no longer applies to wills and the words used by the testator would, if the will were construed as an Ohio will, convey only a life estate to Elizabeth Haines, with remainder over to her heirs. See Rev. Stat. 5968 (Lan. 9507).

It further appears that Joshua Kelly, the testator, died April 16, 1862, in DeKalb county, Indiana; that on or about June 16, 1863, said will was probated at Auburn, DeKalb county, Indiana, and was not probated or recorded in Ohio until March 21, 1902, about the time of the filing of the petitions in these actions, and lacking less than one month •of forty years after the death of said testator.

On or about July 1, 1864, said Elizabeth Haines and Rudy Haines, her husband, deeded said eighty acre tract to Thomas Kelly of Indiana, by a warranty deed, which deed contained the following words:

“It being the premises held by grantor Elizabeth Haines in virtue of will of Joshua Kelly made on the 12th of April, 1862, and admitted to probate in the court of common pleas of DeKalb county, Indiana, and recorded in records of wills, Yol. 1, pages 112 and 113, said Joshua now being deceased in said DeKalb county, Indiana.”

Thomas Kelly and wife by warranty deed dated March 28, 1866,. conveyed this land to Peter Hosier who held open, notorious and adverse possession until April 19, 1883, when he deeded fifty acres to Morris Hosier by warranty deed, for a consideration of $2,000.

At a subsequent date the remaining thirty acres were conveyed to Laura P. Barr, by the executors of Peter Hosier; and said Morrise Hosier and Laura P. Barr, are now in possession, claiming title.

It further appears that said Elizabeth Haines died on March 1, 1883, leaving heirs of whom the plaintiffs are the survivors, and representatives.

All of the children and heirs of Elizabeth Haines were of age at the time of her death except her daughter, Edna, one of the plaintiffs here, and she became of age July 20, 1888. more than thirteen years before the commencement of these actions. Two of those heirs have since died (one in 1889 and the other in 1902) and each of these two> is represented in this action by a daughter, one of whom is a minor.

On behalf of the plaintiff it is claimed:

First. That the will of Joshua Kelly, though under Indiana law, it would have conveyed to Elizabeth Haines a fee simple estate, yet, as it devised Ohio land to her, must be construed to convey only a life' estate under' the Ohio law; that therefore the warranty deed of Elizabeth Haines to Thomas Kelly could only convey her life estate,, which has terminated by her death, and that her heirs, who inherited as remainder-men under the will of Joshua Kelly, are now the rightful owners of the land devised to her and her heirs.

Second. That, as the deed of Elizabeth Haines to Thomas Kelly expressly recited that the property conveyed was that held in virtue of the will of Joshua Kelly and admitted to probate in DeKalb county, Indiana, such reóital was notice to Thomas Kelly and his grantees of the existence and contents of said will and that all subsequent purchasers .being charged with notice of that will, can not be held to be' innocent purchasers without notice but are bound by such notice.

Third. That as both the plaintiffs and defendants claim under the will of Joshua Kelly, their common source of title, the defendants, could not be permitted to attack the probate of that will in Ohio as that would be in effect an attack on the common source of title, and that it follows that defendants are bound by this will, and that plaintiffs” title by virtue of it is absolutely established.

The defendants, on the other hand, deny these claims and assert that as to Ohio lands said will was void and powerless to pass title until probated in Ohio.

That said will not having been probated o'r recorded in Ohio prior to 1902 was of no effect and was void, because of the statute of limitations; that a void will is never notice of its contents for any purpose whatever: and that therefore the recital in the deed to Thomas Kelly was not notice to him or to his successors of the existence of the will; that consequently the grantees of Thomas Kelly are innocent purchasers without notice, and unaffected by said will.

These facts and claims present many nice questions of law, to only a few of which we can now refer.

As to the third and last claim of plaintiffs below, it is sufficient to say that, while it may be conceded that defendants are estopped from denying the title of the person from whom both claim as a common source of title, an attack on the probating of the will in Ohio is not an attack on the title of Joshua Kelly. It is an attack on the title of plaintiffs perhaps — but the title of Joshua Kelly is conceded at all stages of this action.

As we understand the claims of defendants, they concede the title of Joshua Kelly and the only question is as to what if any title was conveyed by Elizabeth Haines, who was, as plaintiffs claim, only a life tenant, under the will of Joshua Kelly; or, as defendants claim, only one of the heirs of Joshua Kelly, the plaintiffs claiming not from her title, but from the title of Joshua; while the defendants claim solely through the title of Elizabeth, as one of the heirs of Joshua Kelly, repudiating any title by virtue of the will of Joshua Kelly. They never did claim under it as an Ohio will, therefore they had a right to object to its being probated or set up as an Ohio will, as against them.

As to the first claim of the plaintiffs. While the authorities are somewhat conflicting in various states, we are of the opinion that the weight of authority is clearly in favor of lex rei sitae as controlling in the construction of a will as to real estate in Ohio.

It is conceded, moreover, that under the Indiana law, the will devised to Elizabeth Haines, a fee simple estate under the rule in Shelley’s case.

If, then, the will of Joshua Kelly could be regarded as an Indiana will for the purpose of conveying Ohio land as well as Indiana land, the title of defendants would be perfect, for Elizabeth Haines would, under the Indiana law, have taken a fee simple estate, and by her warranty deed, she forever barred her heirs from claiming any interest through her.

It is conceded also on the other hand that, had the will been properly probated and recorded in Ohio before the. rights of defendants became fixed, it would have operated to convey only a life estate in Elizabeth Haines, with remainder over to the heirs, who would have inherited as remainder-men immediately upon her decease.

But it was not probated or recorded in Ohio for forty years. What effect did the delay have? '

For forty years the will was treated by all parties as an Indiana will, conveying title to Ohio land as if it were Indiana land.

Under the Indiana rule, the fee vested in Elizabeth Haines immediately on the death of the testator.

Therefore there could be no remainder-men under the Indiana law, for there was no life estate to support a remainder.

Elizabeth Haines attempted to convey this fee to Thomas Kelly by warranty deed executed two years after the death of the testator.

This deed undoubtedly did convey all of the title possessed by Elizabeth, whether a fee or a life estate.

Her grantee and his successors have ever since held open, notorious, adverse possession.

But if this will conveyed only a life estate as to Ohio lands to Elizabeth Haines, she had no power, by conveying her interest in the land, to destroy the rights of her heirs.

The supposed fee of Elizabeth Haines and her grantees, was subject at any time, unless prevented by the statute of limitations, to be divested of its character as a fee, and become merely a life estate, upon the probating of that will in Ohio. See Carpenter v. Denoon, 29 Ohio St. 379.

That will could have been caused to be probated in Ohio by anyone interested.

That will, construed under the Ohio law, as we think it must be construed if it is to convey Ohio lands, devised not only a life estate in Elizabeth Haines, but a remainder in fee to her heirs.

That remainder vested immediately upon the death of the testator. Dennis v. Mullane, 1 Circ. Dec. 223 (1 R. 399), affirmed by Supreme Court, without report, Mullane v. Dennis, 20 Bull. 472.

At any time after his death, any of the remainder-men, even before the death of the life tenant, could have filed the will for probate and record, and so fixed their rights.

Of the four heirs of Elizabeth who survived her, three were of age long prior to her death.

By the testimony of the- only one of these three who still survives,, it was common talk in the family that at the death of his mother, the children would inherit the Ohio lands through the will of their grandfather.

The query arises, why did th$y not immediately take steps to investigate this claim and do the one thing needed to fix their title; that is, record the will in Ohio?

This son Leslie was, at the death of his mother in 1883 a man twenty-eight or twenty-nine years of age. His sister Sara was twenty-six or twenty-seven years old. His sister Mary was thirty-one years old.

By Leslie’s testimony, it is evident that all the heirs knew all that he knew.

He says that he did investigate; that is, he went to Auburn, and employed a lawyer to look at the will and was misinformed by the lawyer as to its contents; was informed that it did not mention the heirs and so he dropped the investigation.

The will was a matter of public record; why did he not read it himself ?

If his hired agent misinforms him as to the contents and he trusts his agent and stop's his investigation, must others’ rights suffer and can he be excused for his own negligence?

But it is claimed that this makes no difference because the statute of limitations could not begin to run against the heirs until the death of their mother, Elizabeth; that their estate in remainder then took effect; that consequently the twenty-one years allowed by the statute had not run against these heirs when the petition was filed.

But suppose this will had never been probated or recorded in Ohio, there would never then have been any estate in remainder. A will speaks from the death of the testator, the estate in remainder vested, if at all, at the death of the testator. The remainder-men as we have seen, had the right at any time after the death of the testator, to cause this will to be probated in Ohio. They were charged with notice and actually had notice that others were claiming adversely to them through the' deed of their mother. They knew, or ought to have known, that until the will was so probated or recorded in Ohio, they had no rights enforcible in law or equity. Gould they stand idly by and' presuming on the questionable fact as to their being saved by a statute of limitations, wait until the near approach of the final moment of their possible claim, until twenty-five or thirty years after they had knowledge of their rights and until forty years after their opponents’ rights had accrued, and then for the first time take the preliminary step which they had the right to take thirty years before, but had neglected to take during all those years?

Such a course involved great risk. Was it fatal?

There can be no doubt, we think, that the right of action of the remainder-men, if they were remainder-men under the will, did not accrue until the death of the life tenant, Elizabeth Haines, March 7, 1883. Had the will been probated in Ohio they might, as remainder-men, have brought suit to enjoin waste of the estate, for their estate in remainder had vested on the death of the testator, but their right to sue for possession did not accrue until they were entitled to possession upon the taking effect of their estate in remainder, at the death of the life tenant. But 'this right to sue as remainder-men was contingent not only upon the death of the life tenant, but upon the probating of the will in Ohio, for until such probate was made, the will was not a will at all as to Ohio lands there was no estate in remainder. The right to probate that will and the power to do so existed in those heirs, as we have seen, long before the death of the life tenant — in fact, from the death of the testator. If they failed to probate this will and so fix their ■right, they cannot now take advantage of their own neglect; they could mot by such neglect postpone the time at which the statute of limitations began to run. It began to run against them and in favor of those holding adverse possession from the time of the vesting of their estate in remainder — i. e., at the death of the testator, subject only to their rights as minors. The statutory time for the protection of their rights as minors has long since passed as to all of the heirs living at the time of the death of the life tenant. The statute having commenced to run as, to these heirs, of course has continued to run as to their children and heirs which include all of the plaintiffs in this ease, See Williams v. Presbyterian Soc., 1 Ohio St. 478.

Having slept on their rights, rights of which their own testimony proves them to have had full knowledge, they are now estopped from claiming those rights as against those claiming title and holding adverse possession for more than twenty-one years.

Whether, therefore, the will be construed as an Indiana will or as ran Ohio will the claim of plaintiff under the will is barred.

But what is the will on which they base their rights? To convey -to them any title, it must be a will enforcible under the Ohio law. Is this such a will?

As stated in the outset, this clause under which plaintiffs claim was apparently written in the margin of the will, not in the body of it. Photographs of the records of the will in DeKalb county, Indiana, were offered in evidence and disclose the appearance of the will as recorded.

The original will may or may not have been written in the exact •form in which it was copied into the record. The presumption is, that the record is a true record. It is offered by plaintiffs to sustain their ■claim. They are bound by it.

vA part of this marginal will as far as the record shows — and that is the only evidence we have to guide us — was written below the signature of the will.'

The Ohio law, Rev. Stat. 5116 (Lan. 8631), requires that every last will and testament shall be signed at the end thereof by the party making the same.

Our Supreme Court in the recent case of Irwin v. Jacques, 71 Ohio St. 395, held that a will containing such marginal matter, a part of which was below the signature, was not signed at the end thereof. True, in that case the marginal portion was not numbered so as to show just where it was to be inserted as was done in the ease at bar, but, on the other hand, the proof was positive that the marginal portion had been written at the request of the testator and before he signed the will, making a case much stronger for claimants than the case at bar.

In the case at bar, there was no such proof.

The original will was not produced. The proof shows that the marginal portion not only extended below the signature but that it was recorded in a different handwriting from that of the body of the will. The evidence is conflicting as to who was the real writer of the different portions of the record, but the apparent preponderance of testimony is, that the marginal portion was not written by the officer having, at the time, authority so to do, nor by his deputy.

The proof as to this is not, I say, convincing, but under the decision of Irwin v. Jacques, supra, it seems clear to us that this will cannot be held to be a valid will under the laws of Ohio, unless we can give to the record of the will a different interpretation and greater validity than we could have given to the original will if produced. We know of no rule of law justifying such a course.

How then does it affect the case? The plaintiffs’ rights depend entirely on the Ohio probate or record of an Indiana will. The will gives plaintiffs no rights as an Indiana -will, but we are asked to enforce, it as an Ohio will.

Under the Indiana law, it conveyed a fee simple estate, and the grantee of that fee simple estate attempted to convey the fee which she presumably supposed that she had a right to convey, and which the testator, having his will drawn, and skilfully drawn, under the laws of Indiana, with which alone he and his scrivener were presumably familiar, evidently intended to give her the right to convey.

We are asked to decree that this will is of no validity as an Indiana will, so as to declare the will void so far as it purports to convey a fee, but to declare it valid as an Ohio will, so as to recreate a life estate-under which plaintiffs can claim. Before we can do this, it must first be necessary to produce a will which, if made in Ohio, would satisfy the laws of Ohio.

This, we think, has not been done. But this conclusion is not essential to the decision of this case. Whether this will was originally properly executed or not, the statute of limitations has completely barred plaintiff’s claim.

If these conclusions are correct, it follows that the will is now void as an Ohio will, and that as to the eighty acres in Ohio,.Joshua Kelly died intestate.

His estate in these eighty acres then descended to his heirs generally. The record discloses that there were at least seven of his heirs-mentioned in his will. One of these, Elizabeth, conveyed her interest, whatever it was, by her warranty deed.

The plaintiffs, as heirs of Joshua Kelly, are, in the absence of a will, heirs only of the portion of their mother, Elizabeth, and her interest is lost to them by her warranty deed, as well as by the statute of limitations.

The remaining six heirs of Joshua Kelly have made no claim and their rights are now barred by the statute of limitations.

The question of notice raised by the recitals of the deed from Elizabeth Haines to Thomas Kelly becomes immaterial in view of the conclusions we have reached.

It follows therefore that the court below erred in directing a verdict for the plaintiff, that the verdict was against the weight of the evidence and should have been for defendant.

The judgment of the court below, will therefore be reversed, and this court proceeding upon the undisputed facts, to render the judgment which ought to have been rendered by the court of common pleas, the petition of the plaintiff, Leslie M. Haines et al., is dismissed at plaintiff’s costs, and the title of defendants, Morris Hosier and Laura-P. Barr, to the real estate described in the petition will be quieted as against plaintiff. Judgment against plaintiff, Leslie M. Haines et al.,. for costs, for which execution is awarded and cause remanded for execution.

VoIIrath and Norris, JJ., concur.


source: Caselaw Access Project

author: JELKE, J.

license: Public Domain

text:
    ASSESSMENTS — NOTICE.
    [Hamilton (1st) Circuit Court,
    May 19, 1905.]
    Jelke, Swing and Giffen, JJ.
    Jacob H. Clemmer v. Cincinnati (City).
    Service of Notice of Street Improvement upon Lessee with Option is Sufficient, when.
    Service of notice of a street improvement upon, and the signing of a petition by,- a lessee for ten years with privilege of purchase, is sufficient to bind all interests with reference thereto, when it appears from the testimony that the lessor considered the property sold, had it transferred on the tax duplicate to the lessee, and looked to him to pay all taxes and assessments.
    F. C. Ampt, for plaintiff-.
    C. J. Hunt, city solicitor, for defendant.
   JELKE, J.

We are of opinion that by the terms of the lease for ten years, with the privilege of purchase given by Mr. Clemmer to Mr. Miller, Mr. Miller was constituted the agent of Mr. Clemmer, and the representative of the corpus of the property sufficiently to bind all interests therein of both Miller and Clemmer, by the service of notice upon Miller and the signing of the petition by him.

This interpretation of this lease is borne out and sustained by Mr. Clemmer upon the witness stand; after he had surrendered the possession of his property to Mr. Miller, and the same had been transferred on the tax duplicate of the county to Mr. Miller, Mr. Clemmer says that he paid no attention to the property, but considered the same sold so-far as he was concerned, and looked to Mr. Miller to provide for and pay all taxes and assessments.

Although the lease herein involved is not of the same permanent nature as that involved in-the.ease of St. Bernard (Vil.) v. Kemper, 60 Ohio St. 244, 253 [54 N. E. Rep. 267; 45 L. R. A. 662], and we do not undertake to lay down any general rule in regard to all leases, we feel that the real estate itself in this case was so handled and disposed of by the lessor to the lessee as to make the language of the opinion of Judge B'urket on page 253 particularly applicable:

“The rules of taxation are prescribed by the statutes, and the persons must make their contracts with reference thereto, and if the power is given to a lessee to deal with property as owner, and to have it stand in his name for taxation, the lessor becomes bound by the acts of his lessee, and has no cause for complaint.”'

We further think that original See. 2304 Rev. Stat, which obtained at the time this improvement was undertaken, is applicable on this point. We think the same reasoning applies to the signing of the petition for the improvement of Fairview avenue, and the improvement of Straight street.

In regard to the second Straight street improvement, we are of opinion that the lien for this assessment should not extend beyond the average depth of lots in this vicinity, which is about 125 feet, and, limited to this depth, the property will not stand a sewerage assessment to exceed one dollar per front foot, and be within the 25 per cent limitation.

In regard to the third Straight street assessment we are of opinion that the original grading and the recent bowldering should be taken as one improvement and confined within the 25 per cent limitation, and having held that the first assessment on Straight street was binding by reason of the signing of the petition, and as the amount there held to be binding upon the property is in excess of 25 per cent of what we ■find the value to be, we are of opinion that the assessment for bowlder-ing is an unlawful burden upon the property and is. invalid.

A decree disposing of these four assessments may be had in accordance with the above views.

Giffen and Swing, JJ., concur.


author: WINCH, J.

text:
    EXECUTIONS — SUBROGATION.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Marvin, Winch and Henry, JJ.
    Dieboldt Brewing Co. v. Walentz Grabski et al.
    1. Execution will Issue against 'Deceased and Surviving Judgment Debtors fob the Sake of Conformity.
    If one of two judgment-debtors dies before the issuance of the execution, the writ will be issued, for the sake of conformity, against both the survivor and the deceased defendant, although as a matter of law it is an execution against the survivor alone.
    2. Purchaser Agreeing to Pay Mortgage as Part of Consideration, not Sub-rogated to Mortgagee’s Rights.
    A purchaser who agrees to pay a mortgage on property as a part of the purchase price will be personally liable to the mortgage holder as the transaction is not a purchase of the equity of redemption subject to the mortgage, but of the land in fee; he is not, therefore, subrogated to the rights of the mortgagee so as to have a lien on the premises superior to that of a judgment accruing subsequent to the execution of such mortgage, but prior to his purchase.
    [Syllabus approved by the court.]
    Appeal from Cuyahoga common pleas court.
    J. M. Pindras, for plaintiffs.
    Herrick & Hopkins and H. DuLaurence, for defendants;
   WINCH, J.

This ease was brought to foreclose a mortgage, was heard on appeal and the sole question for the consideration of the court is the determination and marshalling of liens as between the defendants, Loew & Sons and Walentz and Maryanna Grabski.

From the evidence, it appears that on November 20, 1897, Loew & Sons recovered a joint judgment in the common pleas court of Cuyahoga county against Maciej Stasiak and Katarzyna Stasiak, his wife, in the sum of $444.80; at that date, the husband was the owner of the premises in question; no execution was issued on said judgment until June 9, 1899, when execution was issued against both said defendants and levied on said lands. At the date of said execution Mrs. Stasiak was dead, although the fact was unknown to the judgment creditor, and the first proposition is that such fact vitiates said execution and leaves the judgment without valid execution for five years, whereby said judgment has become dormant and ceased to be a lien ■upon said lands.

The authorities seem to rule against this proposition:

"Where a judgment is rendered against two, and one dies before the issuance of the execution, the writ for the sake of conformity, should, be issued against both the deceased defendant and the survivor, although in law it is an execution against the survivor only, and his goods alone can be levied on.” 8 Enc. Pl. & Pr. 422; Freeman, Execution 936; Martin v. Bank, 15 Ala. 587 [50 Am. Dec. 147]; Wade v. Watt, 41 Miss. 248; Hardin v. McCanse, 53 Mo. 255; Reed v. Garfield, 15 Ill. App. 290.

The next proposition involves a consideration of the law of sub-rogation under the following facts:

On October 26, 1898, the premises in question were subject to a mortgage for $600 to the Union Building & Loan Company, and on said day Mr. and Mrs. Stasiak united in a quitclaim deed of said premises to their nephew, .Grabski, and his wife, in which a consideration of $1,200 was recited as received by the grantors from the grantees, but no money actually passed between the parties. The evidence shows that the property was then worth $1,200.

The following language occurs in the deed:

"The conditions of this deed are such that the said grantees hereby agree to give the said grantors a lease on the above described premises to live there during their natural life, and furthermore the said grantees, hereby agree to furnish the grantors with the necessary food and clothing during their natural life' if necessary, and it is agreed by said grantors- and said grantees that all assessments and taxes that now and after shall be due or become due shall be paid by said grantees, and if the said grantees shall not perform the above agreement the said deed shall be-, void. ’ ’

Grabski also testified that he agreed with his uncle at the time he delivered the deed, that he would pay the mortgage to the Union Building & Loan Company, and also informed said company that he had so-agreed.

Mrs. Stasiak lived in the premises until she died on February 4, 1899; then the Grabskis moved into the place and Mr. Stasiak continued to live there with them until he died on October 4, 1900.

Grabski says he didn’t furnish Mrs. Stasiak with any food or clothing, as she didn’t need or ask for any; he furnished part of his; uncle’s food, until he died, and paid his funeral expenses. He also paid the taxes and assessments, and some time after the death of Mr. Stasiak and .before the bringing of this suit, Grabski paid the mortgage referred to. By reason of such payment be claims to be sub-rogated to all rights under said mortgage and to have a lien on the premises prior to the judgment. 1

We think the facts in this case show that Grabski agreed witñ his grantor that he would pay said mortgage as part of the purchase money. If we are right in this conclusion, the transaction was not a purchase of the equity of redemption, subject to the mortgage, but of the land in fee, and the mortgage debt became Grabski’s debt. If it was his own debt and he paid it, the doctrine of subrogation has no •application to the case.

The following Ohio cases fully elucidate the law applicable to such situations: Thompson v. Thompson, 4 Ohio St. 333; Brewer v. Maurer, 38 Ohio St. 543 [43 Am. Rep. 436]; Emmitt v. Brophy, 42 Ohio St. 82.

We are therefore of the opinion that the case of Joyce v. Dauntz, 55 Ohio St. 538 [45 N. E. Rep. 900], cited by counsel for Grabski, is not in point. That case holds that,

“Subrogation arises by operation of law, whenever a mortgage debt is extinguished by one entitled to redeem, other than the mortgagor or person ultimately liable for the mortgage debt.”

We think Grabski, by his promise to pay the mortgage, became ultimately liable .therefor and the view we take of the facts of the ease renders any further consideration of authorities cited by counsel unnecessary.

Decree may be drawn finding the Loew & Sons’ judgment a lien ■upon the property and marshalling the liens in their order, as agreed by counsel, with no relief awarded Grabski under said mortgage, which he has paid.

Marvin and Henry, JJ., concur.


text:
    COURTS — EXECUTORS AND ADMINISTRATORS — PARENT AND CHILD.
    [Hamilton (1st) Circuit Court,
    November 18, 1905.]
    Jelke, Swing and G-iffen, JJ.
    Peter Spink v. Alphonsa Spink.
    1. Special Jurisdiction Conferred on Proeate Court by Rev. Stat. 6100 (Lan. 9639) et seq., Includes Necessarily Incidental Equitable Jurisdiction.
    The jurisdiction of the' probate court provided for by Rev. Stat.' 6100' (Lan. 9639) et seq., to allow or reject claims made by an executor or administrator against the estate he represents, carries with it such equitable jurisdiction as is necessary to a full and complete exercise of the powers specifically conferred.
    2. Court will make Allowance to Mother out of Deceased Child’s Estate for Past Support, under Extraordinary Circumstances.
    While it is the general rule that no allowance will ordinarily be made to either a father or mother out of the estate of their deceased minor children for their past maintenance and support, yet where it appears that a mother was furnishing such support, and has no estate, or an estate small and trifling in comparison to that of the minor, and that the maintenance given to the minor for his benefit was under circumstances practically coercive on the mother, and that in doing so she was compelled to assume a burden not naturally and legally her» alone, such allowance may be made.
    3. Defect in Application under Rev. Stat. 6100 (Lan. 9639) may be Cured by the Evidence.
    Even should an application under Rev. Gtat. 6100 (Lan. 9639), for an award to a mother out of the estate of her deceased minor child be insufficient to make out a case for the application of the special equitable jurisdiction of the court, the decree will not be disturbed on review if the evidence adduced was sufficient for that purpose.
    ERROR to Hamilton common pleas court.
    O. H. Fisk, for plaintiff in error.
    Bates & Meyer, for defendant in error.
   JELKE, J.

These [two] cases arose in the probate court on the application of Alphonsa Spink, administratrix of the estates of Alfred Spink am? Alphonse Spink, respectively, under provision of Rev. Stat. 6100 (Lan.. 9639) :

“Whenever an executor or administrator shall present to the-probate court for its allowance, any debt or claim of which he is the owner, against the estate which he represents, amounting to fifty dollars or more, the court shall fix a day, not less than four weeks nor* more than six weeks from the presentation of the said debt or claim* when the testimony touching said debt or claim shall be heard; and the court shall forthwith issue an order, directed to said executor or administrator, requiring him to give notice in writing to all the heirs, legatees, or devisees of said decedent interested in said estate, and such creditors as are therein named, which notice shall contain a statement of the amount claimed, and designate the time fixed for hearing the testimony, and shall be served upon the persons named in said order at least twenty days before the time fixed for such hearing; and ,if any of the persons mentioned in said order are nonresidents of the county, service of said notice may be made upon them by publication for three consecutive weeks in a weekly newspaper, published or circulating in said county; all of the persons named in the order shall be deemed parties to the proceeding, and any other person having an interest in the estate, may come in and be made a party thereto.”

Said application is in words as follows:

“Alphonsa Spink, administratrix, represents that she is the mother of the decedent, who died April 29, 1902, at the age of thirteen years, leaving no brother or sister nor descendants thereof.
“That on June 14, 1897, this applicant was divorced from Peter Spink, the father of decedent, for his aggression, and that ever since then and for over three years before, in all over eight years, she has had the sole care and expense of clothing, supporting, housing and schooling of said minor by her own efforts and out of her own means, which are very small. That said expense has amounted to over one hundred and fifty dollars per year. That there are now unpaid debts of said estate, and she therefore prays the court to allow her said claim.”

On said application, these claims in due course were allowed and approved by said probate court, error to which allowance was prosecuted to the court of common pleas, and there affirmed, and error to such judgment of affirmance is now prosecuted to this court. It is contended:

First. That the probate court has no jurisdiction under- the provision of Rev. Stat. 6100 (Lan. 9639) to pass upon question necessarily involved in the allowance of these claims, but that the same could only have been adjudicated in separate actions for that purpose, brought in a court- of chancery.

Second. Under Rev. Stat. 3140-1 (Lan. 4841), “When husband and wife are living separate and apart from each other, or are divorced, and the question as to the care, custody and control of the offspring of their marriage is brought before any court of competent jurisdiction in this state, that the father and mother of said children shall stand upon an equality before the courts as to the care, custody and control of said offspring, so far as it relates to their being either father or mother of said children.” The mother and father as to the support and maintenance of children after divorce, stand on an equality before the law, and are equally bound to support and maintain their minor children, and that by reason of this provision, Alphonsa Spink could ^acquire no claim against the estate of her children for their support and maintenance.

It is contended on behalf of the plaintiff in error that Alphonsa Spink might in a proper case have had a claim against Peter Spink, the father, for the amount expended in the maintenance and support of their minor children, under the rule of Fulton v. Fulton, 52 Ohio St. 229 [39 N. E. Rep. 729; 29 L. R. A. 678; 49 Am. St. Rep. 720], the syllabus of which is as follows:

“Where a divorce, a vinculo, has been granted to a huband on account of the aggression of the wife, and the minor children of the parties assigned to the custody of the divorced wife, without an order respecting their maintenance, and while so in her custody she furnished to them necessaries, she cannot recover against her former husband, their father, for her expenditures in this behalf, in the absence of proof of a promise by him to pay for such necessaries or of a request that they should be furnished to the children.”

Or still a stronger claim and case under Pretzinger v. Pretzinger, 45 Ohio St. 452 [15 N. E. Rep. 471; 4 Am. St. Rep. 542]:

“The obligation of the father to provide reasonably for the support of his minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which- divorces the wife a vinculo, on account of the husband’s misconduct, gives to her the ■custody, care and nurture of the child, and allows her a sum of money as alimony, but with no provision for the child’s support.”

Third. It is further contended that whatever order a court of chancery or a court of probate in a proper case might make in regard to the continuing maintenance, support, and education of minors, and-expenditures of their-estate for these purposes, that under no circumstances would an allowance be made charging such minors’ estate for past maintenance and support! The rule in this regard as most generally observed in this country is laid down in Kane, In re, 2 Barb. Ch. 375; opinion per Chancellor Wallworth:

“The English court of chancery formerly adopted a very rigid rule in relation to past maintenance by the father, by refusing to make a retrospective order in any case. It seems however, that the proper rule here is for the court to direct an inquiry as to the propriety of allowing for past maintenance, where a special ease is made; but not to •direct such an inquiry, as a matter of course, upon a mere petition showing the inability of the father to support his children, at the time such support was furnished them.
“To entitle the father even to an inquiry as to the propriety of making an allowance for past support of his infant children, he should state a special case, showing the extent of his means at the time such ■support was furnished, and the particulars of the extraordinary expenditures, for the actual benefit of the infants, which create an equitable claim in his favor.”

Also see the case of Wilkes v. Rogers, 6 Johns. 566, at page 594:

“As to the objection that an allowance cannot be made for past time, the respondent’s counsel appeared to abandon it. The decisions are, conclusively, that an allowance may retrospect. Lord Thurlow, who first laid down the rule that allowances should-not be for time-past, stands alone. Those who went before, and came after him, upon solid and just principles, made no distinction between the time past and the time to come.”

In Smith v. Geortner, 40 How. Pr. 185, the second proposition of the syllabus is as follows:

“To entitle a father to an inquiry as to the propriety of making ¡an allowance to him for the past maintenance of his infant children, he must state a special case, showing the extent of his means at the time •such support was furnished, and the particulars of the extraordinary expenditures for the actual benefit of the infants which created an •equitable claim in his favor.” ■ •

In Besondy, In re, 32 Minn. 385, 387 [20 N. W. Rep. 366, 367; 50 Am. Rep. 579]:

“The obligation of parents to support their minor children having a separate income is thus summarily stated: ‘The father is bound to support his minor children if he be of ability, even though they have property of their own; but this obligation in such a case does not extend'd» the mother,’ 2 Kent’s Commentaries 191. In other words, the rule is not so rigorous in the case of the mother; and if the child has property, the mother is not bound to provide for its maintenance where the father would be. 1 Parsons, Contracts 309. ’ ’

In Osborne v. Van Horn, 2 Fla. 360:

“It may be regarded as established by the English and American. decisions, that a mother is entitled to an allowance for the maintenance-of her children out of their fortunes, especially where her own fortune-is inadequate.
“In general this allowance is to be confined to the annual income,, and should not extend beyond it; but where the property is small and more than the annual income is necessary for the- maintenance of the-infants, the court will sometimes allow the capital to be broken in. upon.”

In Freybe v. Tiernan, 76 Tex. 286, 290 [13 S. W. Rep. 370]:

“It is a sound principle that the corpus of the estate of an infant should not be entrenched upon for his support and education, so long as the income is sufficient for that purpose; but it is held that, when the means of the parent are not ample, expenditures by the parent for the support and education of a minor child may be made a charge upon the body of the estate, provided it be so small that the income is wholly inadequate for the purpose. Bostwick, In re, 6 Johns Ch. 100; Osborne v. Van Horn, 2 Fla. 360.”

And Otte v. Becton, 55 Mo. 99, 101:

‘ ‘ The law seems to be well settled, that where the father or mother,, or a step-father, maintain infant children, they have no legal right to recover for past maintenance in an action at law,-unless it be upon an express promise to pay the same after their arrival at years of maturity. But a court of chancery may allow it out of their estate, where the parents are poor, and the infants are entitled to estate large enough to admit of it and leave enough for their future education and maintenance. Each case must depend on its own facts. Here are three infant children to be educated out of this fund, and it is not more than sufficient for that purpose. The guardian has the right to appropriate it towards their education and future support, and he ought to do so with the approbation of the probate court having jurisdiction over him. We do not feel at liberty on the facts of the case to order anything to be paid to the plaintiffs.”

It appears from' these cases that the general rule is, that no allowance should be made to either father or mother out of the estate of ' their1 deceased minor children for their past maintenance and support / except in special cases.

Counsel for plaintiff in error misconstrues these authorities when he-contends that this means that there must be brought a .separate action in a court of chancery to secure the allowance, of these -claims, or the samé cannot be állowed under Eev. Stat. 6100 (Lan. 9639).

The special case which makes the allowance of a claim an exception to tbe general rule is one of special circumstances in which it must appear that the parent, mother or father, who was furnishing such support, had little or no estate, or an estate small and trifling in comparison to the estate of the minor, and that the support and maintenance was given to the minor for the minor’s benefit under circumstances; and conditions which were coercive upon such mother, and where in doing so she was compelled to assume a burden which was not naturally and legally hers alone. When such claim is made and presented in a probate court, under Rev. Stat. 6100 (Lan. 9639), we are of opinion that it is properly within the jurisdiction of that court.

Clapp v. Banking Co. 50 Ohio St. 528 [35 N. E. Rep. 308], opinion per Spear, J., at page 537:

“Although the probate court is of limited and statutory jurisdiction, it is, we think, a mistake to suppose that it has no equity powers unless the same are expressly conferred. A power given to make a particular order implies authority to hear and dispose of all questions which it is necessary to have settled before the making of such final order, unless the needed authority is distinctly denied.”

The jurisdiction conferred by Rev. Stat. 6100 (Lan. 9639) must draw to it such chancery jurisdiction neeessary to a full and complete exercise of the jurisdiction specially conferred. Hence, in the consideration of an application properly brought under Rev. Stat. 6100 (Lan. 9639), the court of probato exercises all necessary and sufficient chancery powers to work out full and complete justice in the premises.

The question has been raised as to whether the application in this case contains sufficient allegations to make out a special case, and we are inclined to think that it does; but whether it does or not, an examination of the record shows that at the hearing, the evidence fully made out a special case justifying the probate court in applying the exception rather than the general rule. In the absence of particular objection and exception, the decree cures whatever insufficiency there may have been in the application. , , , .

It appears from the record that Alphonsa. Spink Was ‘divorced from her husband for his aggression, and that the custody pf.'the two children, Alphonse and Alfred, was confided to her, and that she.for more than eight years supported and maintained these infants' without any assistance from their father. During all this time Alphonsa Spink had almost no estate, but was dependent upon her own labor and exertion. While the duty of the father and his culpable dereliction im this regard would not be competent in a suit at law between Alphonsa Spink and the legal representative of the estates of said minors, yet in chancery in considering whether or not such special ease has been made out as to justify the chancellor in applying the exception as to past maintenance and support it is competent for the chancellor to remember that in the event of the application being denied, one-half of the small estates of these deceased minors would go to the father, Peter Spink, who had at all times been neglectful and derelict in his duty as to their maintenance and support, and who by his aggression had thrust this unnatural and heavy burden upon Alphonsa Spink.

We are, therefore, of the opinion that these eases come fairly within the exception as to special cases, and the probate court did right in allowing these claims, as likewise did the court of common pleas in affirming said judgment; and its judgment is affirmed.

Swing and Giffen, JJ., concur.


author: GIFFEN, J.

text:
    EVIDENCE — MUNICIPAL CORPORATIONS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    May 27, 1905.]
    Jelke, Swing and Giffen, 'jJ.

       William G. Kittredge v. Cincinnati (City).
    1. Opinion op One having Knowledge of Stallions is Proper as to theik Propensity to Jump Pences.
    The opinion of a man having experience with horses, as to the propensity • of young stallions to jump out of their pastures, is proper to go to the jury where the sufficiency of a fence to keep a young stallion in a pasture is in question.
    2. Question of Lapse of Time to Chabge City with Notice of Defective Stbeet Depends upon Pabticular Circumstances.
    The question of the sufficiency of lapse of time to operate as notice to a municipality of a defect in a street will depend upon the location thereof with reference to whether the same is unfrequented or in a closely populated district, and will he determined by the circumstances in each particular case.
    3. To Charge City with Notice of Defect in Street, it must have been Received in Time to Make tile Necessary Repairs.
    In order to charge a municipality with negligence in failing to repair a street, it must be shown, not only that notice, either actual or constructive was received, but that it was received in time to make the necessary repairs or otherwise provide against accident.

      i. Degree of Care in Maintaining Pence rs such as Would be Exercised by Ordinarily Prudent Man. -
    The degree of care required in maintaining a fence around a pasture is not such as will be reasonably sufficient to restrain stock, but such as would be exercised by an ordinarily prudent person under like circumstances.

      ERROR to Hamilton common pleas court.
    D. V. Sutphin, for plaintiff in error;
    A. H. Morrill, assistant city solicitor, for defendant in error:
    The ,city contends that it is not liable for an improbable or extraordinary accident. Village v. Kallagher, 52 Ohio St. 183 [39 N. E. Rep. 144]; Dillon, Mun. Corp. Sec. 1020, p. 1287.
    The city further contends that the duty laid upon it by Rev. Stat. 2640 (Lan. 3923; B. 1536-131), “to keep its streets open and in repair,” only requires that degree of care which would be necessary to protect from harm any traveler or other person using the street for street purposes, and that it would be requiring too great and reasonable care if the city would be liable as an insurer for any accident which might occur, whether the street was being used for street purposes or otherwise. 2 Elliott, Roads & Streets Sec. 431; Blodgett v. Boston, 90 Mass. 237; Bicharás v. Enfield. 79 Mass. (13 Gray) 344; Gregory v. Adams, 80 Mass. (14 Gray) 242; Stickney.Y. Salem, 85 Mass. 374; Deering, Negligence Sec. 191; Shearman & Redfield, Negligence Secs. 346. 358, note; Moss v. Burlington, 60 Iowa 438 [15 N. W. Rep. 267; 46 Am. Rep. 82]; Gribble v. Sioux City, 38 Iowa 390; Himgerman v. Wheeling (City), 46 W. Va. 761 [34 S. E. Rep. 778].
    The defendant’s contention here is that no matter what degree of negligence the city was guilty of, as regards travelers on the street here in question, the plaintiff cannot recover for an injury which resulted directly from the fact that his horse was illegally running loose upon a public highway, which illegal act contributed immediately and approximately to the injury; that the plaintiff’s horse, when he ran loose upon the highway was putting the highway to a use for which it was not made, and, although the horse escaped without negligence of the plaintiff yet the plaintiff cannot recover for such resulting injuries. Hunger-man v. Wheeling (City), 46 W. Va. 761 [34 S. E. Rep. 778].

      Affirming Kittredge v. Cincinnati, 14 Dec. 504.

   GIFFEN, J.

The plaintiff in error in his original petition alleged that his horse, without the knowledge of plaintiff and without any negligence on his part, escaped from pasture, and while on a public street fell into a large hole in the street whereby he was killed; that the defect in the street existed for more than three weeks prior to the happening of the injury; that the city had notice of the same for more than two weeks but failed to repair the same or place any protection around it.

The defendant, by answer, denied all negligence on its part and charged contributory negligence upon the plaintiff. The jury returned a verdict in favor of, the defendant upon which judgment was entered.

It is competent to prove by one acquainted with the habits and dispositions of horses that the class to which the plaintiff’s belonged was •accustomed to jump over fences or break out of pasture. The court therefore did not err in receiving the testimony of the witness, Morris.

The three special charges given by the court at the request of the defendant state the law correct y and were properly given.

The first special charge requested by the plaintiff makes the. ques- ■ tion of notice of the defect to the city depend entirely upon the existence of the same for a period of three weeks. In certain parts of the city densely populated and where streets are frequently used, the existence of a defect for a period of three days might be sufficient to charge the city with notice of a defect, while on the other hand, in another part of the city where the streets are seldom used, the existence of the defect for a*period of thirty days might not be sufficient to charge the city with notice of the same. The question necessarily depends upon the circumstances of each particular case. In this ease the defect existed in that part of the street which was seldom used, and at a point near the edge of the traveled way which, together with other facts, tended to rebut any presumption arising from lapse of time, and the question of notice was properly left to the jury.

The second special charge leaves out of consideration entirely the question of notice, and was properly refused.

The third special instruction, although providing for notice either actual or constructive, ’ fails to require that the notice be received in time to make the ' necessary repair or otherwise provide against accident;

The fourth special charge is defective in limiting the kind of fence the plaintiff was required to maintain around his pasture to one reasonably sufficient to restrain stock, such as' that of the plaintiff. Reasonably or tolerably sufficient is not the nature of care required but it is such as would be exercised by an ordinarily prudent person under like circumstances.

The géneral charge of the court on the question of notice through a police officer is more favorable to the plaintiff than would now be sanctioned under the case of Cleveland v. Payne, 72 Ohio St. 347, since the trial of this case and reported on May 22, 1905.

The verdict was not against the weight of the evidence, and the judgment will be affirmed.

Jelke and Swing, JJ., concur.


text:
    CHATTEL MORTGAGES — CONVERSION.
    [Cuyahoga (8th) Circuit Court,
    December 1, 1905.]
    Marvin, Winch an,d Henry, JJ.
    Economy Building & Loan Co. v. W. C. Newman.
    1. Revised Statutes 4155-1 (Law. 6852) as to Foreclosure of Mortgage on Household Goods Inures to Benefit of Single Man.
    Revised Statutes 4155-1 (Lan. 6852), which prescribes the formalities for the foreclosure of a chattel mortgage on necessary household goods, wearing apparel, etc., was passed for the protection of the mortgagor and should be liberally construed in order to promote its object, and its protective features will apply as well to the necessary household goods of a widower without any family as to those of a married man.
    2. Mortgagee cannot Take Household Goods Except as Provided by Statute, even though Mortgagor be without a Family and Goods be Stored.
    An action for damages will lie for the conversion of household goods, where the evidence shows that mortgagor, a widower, stored the same temporarily and left the city with the intent, however, of returning and keeping house in the near future, and that during his absence defendant mortgagee took possession of the same without following the statutory formalities for the foreclosure of a chattel mortgage on necessary household goods.
    •3. In Action for Conversion of Secondhand Chattels, Testimony of Plaintiff as to Value is Admissible.
    In an action for damages for the wrongful conversion of certain household goods, the market price thereof as shown by other evidence, will not be considered as the sole criterion of value, as they may have a peculiar worth to plaintiff, and it is not erroneous therefore to admit his testimony as to their value.
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas court.
    Foster, Foster & Howells, for plaintiff in error.
    Richard H. Lee, for defendant in error:
   WINCH, J.

Wm. C. Newman, defendant in error, brought bis action against plaintiff in error for damages for the conversion of certain household goods alleged to have been wrongfully taken from him by said plaintiff in error. The plaintiff below recovered judgment against the defendant below, and from the bill of exceptions filed with the petition in error in this court, it appears that Newman was the owner of said household goods which he had mortgaged to the loan company. While said chattel mortgage was still in force, with a balance due on the note secured by it, Newman’s wife died; he had no children living with, or dependent upon, him, and he himself being sick, he stored said furni-ture and went to Detroit to recuperate, with the intention, however, of returning and resuming housekeeping, as he states. Newman was gone about six months; when he returned to Cleveland his deceased wife’s sister accompanied him and he married her the day after they arrived at Cleveland. When he and his new wife went to the storage' warehouse to get his furniture, with which they proposed to go to house keeping, he found that it had been replevied by the loan company in an action prosecuted before a justice of the peace and disposed of by it in satisfaction of the mortgage debt, the conditions of the mortgage having been broken.

. Thereupon this action was brought, the unlawful conversion being based upon the loan company’s violation of the provisions of Bev_ St at. 4155-1 (Lan. 6852), which reads as follows:

"No chattel mortgage on the necessary household goods, wearing apparel or mechanic’s tools of any person or family, except chattel mortgages given to secure the whole or some part of the purchase price thereof, shall be foreclosed except in a court of record. No such-household-goods, wearing apparel or mechanic’s tools covered by a chattel mortgage shall be seized or taken out of the possession of the mortgagor before foreclosure, except by a sheriff, or constable, and then only after the mortgagee or his agent has presented an affidavit, to a judge of some court of record or justice of the peace, setting forth that the mortgage is due, or that the mortgagee is in danger of losing his security, giving the facts upon which he relies, and after obtaining an order from such judge or justice of the peace, directing such sheriff or constable to seize such household goods, wearing apparel or mechanic’s tools and hold them subject to the order of the court,” etc..

The loan company admits that it did not comply with this law, but says that Newman was not entitled to the benefits of the law, because, at the time the loan company took his goods Newman was a single man with no family and the household goods taken, having been stored by him, upon his departure from the city, were no longer necessary household goods, as specified in the statute.

It will be noticed at the outset of this inquiry that the statute under consideration is merely remedial in its nature; it in no wise affects the rights of the parties to the chattel mortgage, but only specifies the-form, in which, and the procedure by which, those rights are to be worked out. Manifestly the statute was passed for the protection of those who are so unfortunate as to be compelled to pledge their necessary household goods in order that they may procure loans from those who have money to lend. The statute, then, should be "liberally construed, in order to promote its object. ’ ’ Revised Statutes 4948 (Lan. 8463).

It contains no requirement that only married persons or those who are the heads of families 'shall be benefited by it. The language is: “person or family;” that includes persons of all descriptions, married and single, with or without families; the disjunctive “or” makes this perfectly clear. No exemption is provided by this law and a reference to the exemption laws of the state throws no light upon the subject. Indeed, we can see no reason why a single man should not need household furniture, as much as a married man. One can board as well as the other, but why emphasize by law the misfortunes of many single persons who are by their circumstances alone and not by choice, relegated to “furnished rooms.” On the other hand, as suggested by Judge Wilde, in the case of Brown v. Wait, 36 Mass. (19 Pick.) 470 [31 Am. Dec. 154], it is not necessary for even the head of a family to own household goods and keep house, and to say that such goods are necessary, only when one keeps house, would be a very strained construction of the statute.

But, it is said that these goods lost their character as necessary-household goods, when Newman stored them and left the city. The trial judge appreciated the force of this suggestion, but understood that any temporary abandonment of the goods to'have such effect, must depend upon the intention of the owner, so he permitted all facts and circumstances shedding any light upon that intention, as well as the statement of the owner with reference thereto, to go to the jury under a charge which fully covered the law of the case, in which, among other things, he said:

“If you find from the evidence that the plaintiff stored these goods with the intention of resuming the use of them again for household purposes within a reasonable time in the future, then you should find that the same continued to be necessary household goods; otherwise they would cease to be necessary household goods after he stored them, and.hence would not be within the protection of this statute.”

The jury under this charge and the evidence, found for the plaintiff, and we are not disposed to disturb its verdict.

Something was said upon argument as to error in permitting the plaintiff himself to testify as to the value of the goods taken, although it is not urged that the verdict was excessive. It is said that these goods having been used, were secondhand goods and as such had a value in the market easily ascertainable. The defendant below was permitted to bring such market value before the jury, while the plaintiff stated that be did not know whether or not there was any market for the goods and could not give their market valúe. He was permitted to say that he knew what they cost and what he considered them worth. He may not have shown very clearly that his furniture had a peculiar value to him, but we all know that furniture that we have been accustomed to use and wearing apparel that fits us, has a greater value to us than the price they will bring as secondhand articles.

“In such cases it is evident that to refer to the market as the sole standard of value, may work serious injury to the party complainant.” Jonas v. Noel, 98 Tenn. 440 [39 S. W. Rep. 724; 36 L. R. A. 862].

The authorities on this subject are collected in a note to the case of Watt v. Railway, 23 Nev. 154 [44 Pac. Rep. 423; 46 Pac. Rep. 52, 726; 62 Am. St. Rep. 772, 792].

The defendant was permitted to introduce several witnesses who •qualified as to their knowledge of the value in the market of secondhand household goods, and they gave their estimate of such market value.

Sedgwick on Damages, Sec. 243, says:

“The market price is merely one of the commonest tests by which to ascertain this value. Tt is by no means the only one. ’ ’

The plaintiff’s evidence together with the defendant’s evidence as to the measure of damages, was all submitted to the jury, under a charge which seems to us eminently fair and expressive of the law on the subject:

Said Judge Lawrence, who tried the case:

“If you find for the plaintiff, you will award to him such damages not exceeding the sum of $1,042.50 as you may find from the evidence he has sustained. Such damages, if you find for the plaintiff, would be the reasonable value of the goods taken and disposed of by the defendant less the amount of the chattel mortgage.held by the defendant, which is the sum of $123.90.

If you find that the goods in question had a market value at the time they were sold, that value would govern; but if said goods have no market value, then you should find what was the fair and reasonable value to the plaintiff of the goods sold, at the time they were sold, having in view the character of the goods and the purpose to which they were applied by the plaintiff. Testimony has been offered by both sides as to the value of these goods. You are not bound to adopt the opinion or estimate of any. particular witness on this subject. You should consider what has been said by them, but in determining the value, if you come to that question, you should also consider the kind, quality and description of these goods, the uses for which they were adapted and were applied and all the facts and circumstances in regard to them as shown by the testimony. As I have said to you, you have no right to take into consideration any claim for damages of the kind alleged in that portion of the petition which I excluded from your consideration, to wit, the plaintiff’s claim that he was deprived of the use of this property and his alleged humiliation. I say to you, gentlemen, that issue is not in this case and should not be considered by the jury. If you come to the question of the value of these goods, you should deduct the amount’of the chattel mortgage, because the interest of the plaintiff in the goods was not absolute but was subject to such morrgage, and the value of his interest in the goods would be the fair and reasonable value thereof less that to which they were subject; that is. this chattel mortgage.”

We find no error in the case and the judgment is affirmed.

Marvin and Henry, JJ., concur.


text:
    COMPROMISE — RELEASE.
    [Cuyatoga (8th) Circuit Court,
    November 24, 1905.]
    Marvin, Winch and Henry, JJ.
    Arthur E. Gilbert v. Wilmer A. Timms.
    COMPROMISE with ONE JOINT TORT FEASOR RELEASES OTHERS, IF ACTION FOR UN-LIQUIDATED Damages.
    A compromise with one joint tort feasor, containing an express reservation of the right to prosecute the other defendant for a balance in excess of the amount so received will operate to release the latter if the action be for unliquidated damages; where, however, the damages are measurable under fixed rules of law, and it is therefore easy to determine whether or not the amount paid is full compensation and satisfaction, for the injury complained of, whether such agreement will discharge the other tort feasor only pro tanto, quaere.

    [Syllabus approved by the court.]
    Error to Cuyahoga common pleas court.
    Smith, Beardsley & Morgan, for plaintiff in error-.
    Squire, Sanders & Dempsey, for defendant in error;
   WINCH, J.

Plaintiff brought his action against Dr. Wilmer A. Timms and Dr. Charles B. Parker to recover damages alleged to have been sustained by reason of malpractice in the setting of a broken arm. After filing his petition, plaintiff settled with defendant, Charles B. Parker, and this fact was set up by Dr. Timms, in a supplemental answer, as a bar to any recovery against the latter.

Thereupon plaintiff replied, admitting the settlement with Dr, Parker, but alleging:

“In making said settlement with defendant, Charles B. Parker,, however, the plaintiff expressly stipulated that in receiving said consideration from the said Charles B. Parker he expressly reserved all rights he may have against defendant, Wilmer A. Timms, to prosecute the said action and recover such damages as he may be able to show have accrued to him on account of the facts set up in the said petition, in excess of the amount so received from defendant, Charles B. Parker. ’*

Upon motion of the defendant, Timms, judgment was rendered by the common pleas court for defendant, upon the pleadings.

To reverse said judgment the case is here on error, and must be affirmed on authority of Ellis v. Bitzer, 2 Ohio 89 [15 Am. Dec. 534], unless the provisions of an act for the relief of partners and joint debtors, passed April 8, 1857 (54 O. L. 94), apply. Said act is now found as Rev. Stat. 3162 to 3166 (Lan. 4881 to 4885) inclusive. The first four sections refer to partnerships and provide that after dissolution of a partnership, one partner may compromise with the firm’s creditor, for his share of its debt, and be released from all further liability thereon, without releasing the other partners therefrom or affecting their right to call on the member who makes the compromise; or composition for his ratable portion of such partnership debt.

, The last section reads as follows:

Bevised Statutes 3166 (Lan. 4885). “The above provisions in reference to partners shall extend to other joint debtors, who may individually compound or compromise for their joint indebtedness, with the .like effect in reference to creditors and to joint debtors of the individual, so compromising, as is above provided in reference to partners.”

We are inclined to think that the legislature, when it passed this; act, was fully advised of the ruling of the Supreme Court in the case above referred to, but did not intend by said act to change the law as there announced. Had its intention been as broad as is contended for by counsel for plaintiff, language more apt for the purpose could have been used, and the reference in Rev. Stat. 3166 (Lan. 4885) to “joint debtors of the-individual, so compromising,” is for the purpose of preserving to them the right of contribution, which exists in the case of joint obligors, but not in the case of joint tort feasors.

New York state has a similar statute, but the courts of that state, where the rule expressed in Ellis v. Bitzer, supra, is not the law, have based their holdings upon principle and not upon the statute.

In the case of Gilbert v. Finch, 173 N. Y. 455 [66 N. E. Rep. 133; 61 L. R. A. 807; 93 Am. St. Rep. 623], Judge Haight says, on page 466:

“It thus appears that the decisions of this court are in accord with the English rule, and in harmony with our statute in reference to -joint debtors.”

So also, Judge Folger, in the case of Irvine v. Milbank, 15 Abb. Pr. (N. S.) 378, suggests the nonapplieability of the statute, but does not so adjudge.

We are doubtful whether the severity of the rule announced in 1825 by the Supreme Court of this state in the case referred to, should be relaxed in the case of all joint tort feasors. The modern holdings seem to make a distinction between the eases where there is no fixed legal measure of damages, as here, and those where there is a fixed legal measure, as in the case of Ellis v. Esson, 50 Wis. 138 [36 Am. Rep. 830], where there was a trespass upon real estate and the carrying off of certain saw logs.

The ground for the distinction lies in the fact, that in a ease where the damages are to be measured by the discretion of the jury, there is no way to determine whether the amount received from one joint wrongdoer is in full satisfaction of the whole wrong, while in a case like the saw log case, where the damages are measurable under fixed rules of law, it is easy to determine whether or not the amount paid by one is full compensation and satisfaction for the injury complained of.

This distinction also furnishes a cogent reason for, denying the application of the statute to the case of joint tort feasors, and leaves the courts free to make such distinction in a proper case.

Judgment affirmed.

Marvin and Henry, JJ., concur,


author: HAYNES, J.

text:
    DEEDS — EJECTMENT.
    [Wood (6th) Circuit Court,
    December 19, 1904.]
    Parker, Hull and Haynes, JJ.

      Toledo, St. L. & W. Ry. v. Lafayette M. Turney.
    Ejectment will not Lie at Instance of Vendok who has Failed to Make Deed to Vendee.
    A plaintiff in ejectment cannot recover on the weakness of the defendant’s title, but only on the strength of his own; hence one who purchased certain realty from a railway company and took possession, making a part, payment for the same and giving his notes and mortgage for the balance, but who never received a deed therefor from such company and who never paid the notes or any of the taxes cannot be dispossessed in an action of ejectment brought by such company, inasmuch as it never performed its part of the contract.
    [Syllabus approved by the court.]
    Error to Wood common pleas court.
    J. O. Troup, for plaintiff:
    As to the Ballou deed. 2 Beach, Equity Secs. 544-7, pp. 1261-8; Sec. 554, pp. 1261-2; Sec. 555, p. 1264; 2 Pomeroy, Equity Sees. 988-9; 1 Lewin, Trusts 210 et seq.

    As to the Shaffer deed. Bishop, Contracts Chap. 55, Secs. 1420, 1433, 1440; Gilbert v. Port, 28 Ohio St. 276; Campbell v. Gittings, 19 Ohio 347; McCoy y. Bixbee, 6 Ohio 310; Dustin v. Newcomer, 8 Ohio 49; Bauda-baugh v. Hart, 61 Ohio St. 73 [55 N. E. Rep. 214; 76 Am. St. Rep. 361]; Cutter y. Powell, Smith L. C. 17; Mowry v. Kirk, 19 Ohio St. 375.
    As to the argument of plaintiff in error. Buchanan y. Boy, 2 Ohio St. 251; Conover y. Porter, 14 Ohio St. 450; Quinlan v. Myers, 29 Obio St. 500; Brown v. Witter, 10 Ohio 142; Katz v. Bedford, 77 Cal. 319 [19 Pac. Rep. 523; 1 L. R. A. 826]; Lake Shore & M. 8. By. v. Bicharás, 152 Ill. 59 [38 N. E. Rep. 773; 30 L. R. A. 33]; Showers y. Emery, 16 Ohio 294'.
    A. W. Eckert and B. F. James, for defendant.

       Affirmed, without report, Toledo, St. L & W. Ry. v. Turney, 73 Ohio St. 400.

   HAYNES, J.

The ease of the Toledo, St. Louis & Western Railway Company against Lafayette 1VL Turney is brought in this court for the purpose .of reversing the judgment of the court of common pleas. The original action was brought by the railway company against Turney for the purpose of ejectment; to dispossess Turney of a certain lot in the village of Grand Rapids, Wood comity. It appears from an examination of the record of the case and from the facts that were stated, that Turney purchased at one time the lot in question from a railway company, that, railway company was afterwards merged in The Toledo, St. Louis & Western Railway Company. The property had been originally deeded to the president of the railway company, Ballou by name, who held it, as trustee, and at the time it was sold by the then company, there was a contract in writing. That contract is not in existence so far as we can learn, the copy that was held by Mr. Turney having been burned at the' time the Chamber of Commerce building in Toledo was destroyed by fire, it being in the possession of Turney’s attorney,■ Mr. Eckert, whose-office and its contents were destroyed by that fire. But the evidence-tends to show that the sale was made upon a contract in writing whereby Turney was to pay a certain sum of money for the lot, two hundred and fifty dollars I think. He was to pay fifty dollars down and the balance in payments of six months and a year apart, to be secured by a mortgage, and the railway company was to execute at the same time a deed of the premises. He paid the fifty dollars down on the execution of the contract. The railway company, sometime afterwards sent him a deed; it was a quitclaim deed, which Turney refused to accept, and returned it. Turney executed at the time he made the payment the note and mortgage that were required, and delivered them to the officers of the-railway company, and they held them and have produced them here in court upon the trial of the ease. Turney testified that he had from time to time written to the railway company demanding that they send him a deed, and he shows a letter written by the general manager of the railway company to him in which he says that the deed has gone forward to be signed by the president and will be returned, but this in fact, was never done. This transaction occurred in the year 1882: Turney testified that he had written to the railway company one or more times that the amount of money that was due had been deposited by him with a merchant in Grand Rapids who was a well-known man, to be kept for the railway company, and they could have it any time they executed the deed. Subsequently however, it appears, he withdrew that money. Turney never paid any taxes or any further part of the purchase money while he stood upon his rights as he claimed, saying that he would do nothing towards paying the amount and paying the taxes, until the deed was executed to him according to the contract. A deed was made by Ballou to the present plaintiff, The Toledo, St. Louis & Western Railway Company, after some time, and it brought this suit. The defendant sets up these various facts in his answer and he claims that he was put into possession by the contract and has held possession of the premises from that time to this, and that the railway company has never performed the obligations on its part to be, performed. He claims his possession is lawful and that the railway company has no right to take' possession of the property against him, because it has failed on its part to perform the agreement to make and deliver to him a good and sufficient warranty deed at the time that the notes and mortgage were made, and at the time the fifty dollars was paid. Around that defense hangs the principal question in the case. The statute (R. S. 5782; Lan. 9319) provides that the defendant may make any defense, legal or equitable, and this is a contest for the possession of this property, the question for the court to determine being whether or not the possession of the defendant was unlawful and whether the plaintiff had the right to dispossess him in an action in ejectment, and after mature consideration we are of the opinion that the contention of-the defendant Turney is right and that this plaintiff had no right to dispossess him for the reason that it had failed on its part to perform the part of the contract that it agreed to perform. The railway company never tendered to him a good and sufficient deed and demanded payment of the purchase money, and without discussing the matter to any great length, and holding this view, we find that the judgment of the court of common pleas was erroneous, and it will be reversed and sent back for further proceedings according to law.

Parker and Hull, JJ., concur.