author: GIFFEN, J. JELKE, J.

text:
    STREETS — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    February 26, 1904.]
    Giffen, Jelke and Swing, JJ.
    Joseph C. Butler v. Cincinnati.
    1. Municipalities Hold Streets in Trust for Street Purposes — Nature op Title.
    Municipalities own the land between street lines in trust for street pur-. poses, but their title thereto is not a fee simple, hut rather in the nature of a base, qualified, or determinable fee; and so long as the purpose for which it is vested with title is maintained, its estate therein is coextensive with the fee title of the owner of any other property. Hence, all property rights existent in land held by such a title, both above and under the surface, follows the fee and belongs to the municipality, subject to the abutting owners’ property rights of ingress and egress.
    2. Stringing Electric Wires Beneath Street not a Property Right of Abutter.
    The stringing and maintaining by an abutting owner of permanent electric wires under the street surface at a depth of nineteen feet for the purpose of supplying electricity to premises abutting on the opposite side of the street, is not within the abutting owner’s property right of ingress and egress, and cannot he done as a matter of right. (Giffen, J., dissents.)

      :j. iluxKU’AL Use and Control of Streets,Defined by Seo. 3471a Rev. Stat.
    The scope raid exLent oí a municipal corporation’s uso and control of land between street lines for street purposes can only be defined by the municipality itself or the state, and not by the abutting property owners. Hence, Sec. D471ct Rev. Stat., declaring, either for proprietary or police purposes, that the stringing of electric wires in the space between street lines, no matter how high above or far below the surface, shall be deemed within the municipality’s property and jurisdiction, and that the same shall not be done without its consent, defines the scope and extent of ‘the municipality’s use and control thereof, subject only to the limitation that such oc^imuiry shall rot trespass upon the property rights of abutting owners. (Giffen, J., dissents.!
    4. Removing Y'.Tr.r.s Rm'NG Beneath Street Without Municipal Consent not Enjoined.
    Injunction will not lie to restrain a municipality, its officers and agents, from removing electric wires strung below the surface of a street and there maintained for over two years by an abutting property owner without the consent of the municipality as provided under Sec. 3471a Rev. Stat. (Giffen, J., dissents.)
   GIFFEN, J.

Tbe plaintiffs seek to enjoin the defendants from cutting and removing certain wires maintained by the plaintiffs under and across Thorpe alley, at a depth of nineteen feet below the surface, for the purpose of supplying electricity to the premises of A. S. Taft from tbe premises of the plaintiff, each abutting upon said alley.

There is no substantial difference in the right of an abutting owner in the alley whether he or the city holds the title in fee. He has a property interest in the alley adjoining his lot which cannot be taken against his will except upon the terms provided by the constitution. Callen v. Electric Light Co. 66 Ohio St. 166 [64 N. E. Rep. 141; 58 L. R. A. 7821.

His essential right is an easement in the alley appendant and appurtenant to his lot for ingress and egress. This includes the right to convey by liorse and wagon or other suitable means such materials as he may require for the use and occupancy of his premises; and so long as he does not interfere with the right of the city and the public to the free and uninterrupted use of the alley, they cannot complain of the material thus conveyed nor of the means employed to accomplish it.

The wires are used to convey electricity from one to the other of the two abutting lots alternately. And while the mode of conveyance and the material carried are different in kind, they do not differ in principle as applied to the right of ingress and egress, from the conveyance of coal and other materials by horse and wagon from one lot to tbe other for the purpose of generating electricity. The fixed and permanent nature of tbe conduit is no legal objection to its maintenance, unless it does now or probably will in tbe future, materially interfere with tbe use of tbe alley by the public. .

It is averred in the petition and not denied in the answer:

“That said wires are many feet below all water and gas pipes and all sewers and conduits which have been laid or will hereafter be laid in said alley; that said wires have been maintained under said alley for more than two years; that the maintenance of said wires in such place and at the great depth of nineteen feet has in no way interfered with the use of said alley by the public or by the city of Cincinnati; that the continued maintenance of said wires at such depth cannot at any time interfere with the use of said alley by the public or by the city or its board of public service or its successors, or any agent or officer of said city, for any municipal purposes or use whatever. ’ ’

This being true, the plaintiffs, by maintaining the wires, are infringing upon no right of the city or of the public; but are exercising' a right incident to their easement of ingress and egress.

If the doctrine contended for by the city is the law, then an abutting owner may not lay a pipe in the pavement to drain the water from, his house to the gutter; nor excavate the ground under the pavement for purposes of storage; nor construct a bay window that will project over the pavement, although nineteen feet above the surface of the ground, each of which obstructions would more likely interfere with the public use of the street or alley than an underground wire.

Every individual’s property is subject to proper and reasonable, police regulations, as was attempted by Sec. 3471a Rev. Stat.; but applied to the facts admitted by the pleadings in this case the inhibition of the statute is not only unreasonable, but, without just cause, deprives the abutting owner of land of a substantial property right.

JELKE, J.

The nature of the title of a municipality in its streets has been much in doubt until recently. The New York elevated railroad cases have defined this ownership, and the Supreme Court of Ohio has adopted the modern doctrine in this regard in the cases of Callen v. Electric Light Co. 66 Ohio St. 166, 173 [64 N. E. Rep. 141; 58 L. R. A. 782], and Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St. 181, 190 [65 N. E. Rep. 1011; 60 L. R. A. 531].

It is now settled that the city owns its streets in fee, not in fee simple, but has a base, qualified, or determinable fee. The qualification of such fee is that the city owns the land between street lines in trust for street purposes. A ‘ ‘ qualified fee ’ ’ is defined by Blackstone:

“This estate is a fee, because by possibility it may endure forever in a man and his heirs; yet as that duration depends upon the concurrence of collateral circumstances, wliich qualify and debase the purity of the donation, it is therefore a qualified or base fee.”

So long as the city maintains the purposes for which it is vested with title, this estate is a fee and as such coextensive with a fee title in any owner of any other property.

■ This estate, of course, is subject to the property right of the owner of abutting property of ingress and egress. All property rights existent in the land between street lines and over and above the property rights or easement of the abutting property owner must follow the fee and belong to the municipality.

I agree that if plaintiffs’ right to maintain the wire in question exists at all, it must subsist in being a part of the abutting property owners’ right of ingress and egress. I do not think, however, that the establishment of a fixed wire is within this right of ingress and egress as those words are commonly understood. Bay, oi’iel windows, cellar extensions under the sidewalk, and gutter pipes, have in many instances been permitted to remain unchallenged. But they do not exist by virtue of any property right of the abutting property owner, but by the indulgence of the municipality.

I cannot follow the case of Henry v. Cincinnati, 25 O. C. C. 178,' for the reason that I do not think that it recognizes what is now the accepted modern doctrine as to municipal ownership in streets.

Such being the estate of the city, if, however, the city’s -control is to be limited to street purposes, only the scope and extent of such uses are to be defined by the municipality or the sovereign state and not by the abutting property owner.

If the state sees fit, as it has done in Sec. 3471a Rev. Stat, either for proprietary or police purposes, to declare that the stringing of wires in the space between street lines, no matter how high above or far below the surface shall be deemed within the city’s property and jurisdiction, such declaration defines the city’s occupation and makes the limit, always provided that it does not trespass upon the private property rights of the abutting owner.

“Provided, however, that in order to subject tl}e same to municipal control, alone, no person or company shall place, string, construct or 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 ail levels above and below the surface of any such public ways, grounds or places, as well as along the surface thereof.”

It is extremely difficult to define exactly what shall be included within the abutting property owner’s right of ingress and egress. All of the uses cannot, with certainty, be enumerated, and there is no exact rule of law to determine just what uses are within and without such right. But it does not seem to me that the stringing of a permanent wire across the street or to the middle thereof to meet a wire from 'the other side of the street at any height above or depth below the surface, is within the meaning of these terms as they are understood, in dividing a piece of ground into streets and abutting lots.

As it is within the power of ,the city through the police department to-remove anything improperly and illegally in the streets, I am of opinion that an injunction should be denied.

The two judges who sat at the hearing of this case, being unable to agree, as shown above, the same was submitted to Judge Swing, who is of opinion that Sec. 3471a Rev. Stat. controls, and that an injunction Should not be granted.

The order of the court will therefore be that plaintiff’s petition be dismissed.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    DESCENT AND DISTRIBUTION — WILLS—HUSBAND AND WIFE.
    [Cuyahoga (8th) Circuit Court,
    July 25, 1903.]
    Marvin, Winch and Laubie, JJ.
    (Judge Laubie of the Seventh Circuit sitting in place of Judge Hale of the Eighth Circuit.)
    John Coon, Exr., v. William B. DeMoore et al.
    1. Sections 417G and 59G3 Rev. Stat. Construed.
    When the wife dies leaving a will in which no provision is made for her surviving husband, her estate will be treated to him as if she had died intestate within the meaning of Secs. 4176 and 5963 Rev. Stat. In such event the husband will he entitled to a distributive portion of her personal estate as though the wife had died intestate, notwithstanding under a strict construction of the statutes such portion could not be claimed.
    2. Court Cannot Make Wnx — Must Ascertain Meaning and Intention Prom Testator’s Language.
    Courts are without power to make a will, or substitute something else for any of its provisions; hut it is their duty to ascertain the meaning and intention of testator from the language used, and then carry the same into effect if that can be done without violating the words of the will.
    3. Will Construed.
    Where testator who was a beneficiary of certain real estate under the will of her first husband (which interest is admitted by the parties, and held by the court to be personalty), bequeathed all her “interest in fee simple in all my realty wheresoever located” to two persons (naming them), and “all my personalty” to one of the persons named, but without mentioning or making any provision for her second husband who survived her, and it appears that testator was not the owner of any real estate and had no interest in any except as such beneficiary; in such case, the second husband is first entitled to a distributive portion of testator’s entire estate under Sec. 4176 Rev. Stat. as though she had died intestate; and carrying out her evident meaning and intention as ascertained from the will, the persons therein named will take the remaining estate in the portions therein respectively provided.
    Appeal by defendant, V. A. Coon.
    John T. Sullivan, for plaintiff.
    J. S. Grannis, John T. Sullivan, Caskey & Calhoun, for defendants.
   MARVIN, J.

The ease of John Coon, executor, against William B. DeMoore and others is here on appeal, and the purpose of the suit is to determine the rights of the several defendants in the property of which Ruth DeMoore was seized at the time of her death.

William B. DeMoore, since the suit was brought, has died, and one Snyder has been appointed as executor of his will, and he is made a party in the ease, the case being revived in his name in place of that of William B. DeMoore.

Ruth DeMoore was the wife of William B. DeMoore. She died in this county and left a will, a codicil of which is the matter to be considered here, for it is under this codicil that the rights of the parties are to be determined in connection with the will. It reads as follows:

“I hereby give and bequeath to Mrs. Verona Coon one-half interest in fee simple in all my realty wheresoever located of which I may die possessed, and the other half of said realty I give, devise and bequeath to Mrs. Julia Stevens, wife of A. J. Stevens, of Cleveland. I also give all my personalty, including, jewelry,, diamonds, clothing and furniture of which I may die possessed of to said Julia Stevens.”

In the will of Ruth DeMoore she nowhere mentions her husband.” She made no provision for him.

Section 4176 Rev. Stat provides for the distribution of personal property where one dies intestate, and it provides thatjme dying intestate, leaving a widow or widower, that said widow or widower shall be entitled to have distributed to him one-half of the first $400 of the personalty which shall be left after the payment of debts, and one-third of all the balance.

Section 5963 Rev. Slat, provides that where one shall die testate, owning personal property, and leaving a will in which provision is made for the widow or widower, such widow or widower, the relict of the testator, may elect whether to take the provisions of the will or the distributive portion to which said relict would be entitled in case the testator had died intestate.

It, of course, is conceded that mider the exact language of these statutes, this widower would be- entitled to no distributive portion, because the distributive portion is provided for only when one dies intestate or when a will is left in which some provision is made for the relict widow or widower. In this case neither of these two facts existed. The widow did not die intestate, and she did not die leaving any provision in her will for her surviving hüsband.

The Supreme Court of our state, in Doyle v. Doyle, 50 Ohio St. 330 [34 N. E. Rep. 166], have construed those statutes, and have said that the estate, when one dies leaving a will in which no provision is made for the surviving widow or widower, the estate in such case is to be treated as though the party had died intestate. Each of the sections which provides for a widow, provides, in the same connection, for the widower, and reads that when one shall die leaving a widow or widower, as in the case of Doyle v. Doyle, supra, it is provided that in whatever personal estate the testator (I say testator because I think it is the right word for either sex) leaves, the husband is entitled to a distributive portion as though the wife-had died intestate.

What was that personal property of which she was seized at the time of her death ?

She had certain moneys, certain chattels, and she had whatever came to her by the third item 6f the will of Robert M. Walduck, deceased. She, at the time of his death, was left his widow, and subsequently married William DeMoore.

The third item of the will of Robert M. Walduck provides: and after October 1, 1875, at an annual rent of thirty-nine hundred dollars, payable monthly. Also all the rest, residue and remainder of any other real and personal estate of what kind of nature soever, or wheresoever situated, other than that hereinbefore bequeathed in and by the second clause of this, my will, of which I may die seized ór possessed, unto David M. Walduck, as my executor and trustee as hereinafter named, to have and to hold the same upon trust, to take charge of, ■manage, collect and receive the rents and profits thereof, and out of the same to pay taxes, assessments, interest and insurance or other charges in relation thereto, and also pay all or any just debts — funeral and testamentary expenses, appertaining' or connected with the management of said estate, for,' during and until my said executor and trustee in his judgment shall deem it safe and for the interest of the cestui que trusts hereinafter named, to have a sale of said trust estate without sacrifice, and during such period until such disposition and sale of said trust property, my said trustee, or his successor after he shall have made said collections and payments as herein last above stated, he shall pay out of the net balance, if any remaining in his possession, the sum of seventy dollars per month to my dear wife, Ruth Walduck, for and during the present, period until the said property shall be sold as hereinbefore mentioned; and for and during the like period after the payment of the said seventy dollars per month out of said fund, the net balance of said revenue shall be equally divided and paid over by my said trustee to” certain parties named in this item of the will.

“I give, devise and bequeath-all that certain house and lot situate, lying and being at the northeasterly corner of Sixth avenue and Eighth street in the city of New York, being the same property as mentioned and bounded in a certain deed made and executed by Philo T. Ruggles, master in chancery, to me, the said Robert M. Walduck, bearing date March 24, 1847, and recorded in the office of the register of the city and county of New York in liber 48 of conveyances, page 161, March 24, 1847; the dimensions whereof being twenty-four feet three inches in width by seventy-seven feet seven inches in length, more or less, and which premises is now subject to two separate mortgages amounting together to the sum of fifteen thousand five hundred dollars as subsisting liens therein, said property being also subject to a certain lease to James W. Scott and John W. Earle for the unexpired term of eight years from

This property had not been sold by that trustee when Mrs. (Wal-duck) DeMoore died.

It is conceded by counsel representing all the parties here, and would be so if it were not conceded, that whatever interest Mrs. DeMoore had in this real estate described in the will "of Robert M. Walduck, was personal as to her. She had no title to any real estate. Hence all the personal property, other than this interest in this real estate — all this interest was as to her personal. That being true, the surviving husband was entitled to distribution out of the entire estate

But there remains still this question.

It should be said that when Mrs. DeMoore died she had no interest in any real estate in the world except so far as the evidence shows, whatever interest she had in this New York property. Yet, by her will, she says:

“I hereby give and bequeath to Mrs. Verona Coon one-half interest in fee simple in all my realty wheresoever located of which I may die possessed, and the other half of said realty I give, devise and bequeath to Mrs. Julia Stevens, wife of A. J. Stevens, of Cleveland. I also give all my personalty, including jewelry, diamonds, clothing and furniture of which I may die possessed of to said Julia Stevens.”

Now it is said on behalf of Julia Stevens 'that since Sirs. DeMoore left nothing but personal property, her interest in the New York property being personal, there was nothing for Airs. Coon; Mrs. DeMoore had no realty and as she gave all her personal property Jo Mrs. Stevens, Mrs. Coon was left without anything. If this language of the will is to be held to this strictly technical meaning, that result would follow.

It is evident that Mrs. DeMoore, when she executed this will, meant something when she used this word "bequeath” applicable to personalty and real estate. When she bequeathed this to Mrs. Coon, she meant something to give her. It could mean nothing if by the construction of this codicil it is to be said that her interest in that properly in New York was treated by her as personalty. It was, technically, personalty.

Iler husband was entitled to distribution in it as personalty.

The first consideration in the construction of wills is to give such construction as will carry out the intention of the testator, if that can be done without violating the words of the will.

It is said that Airs. Coon can get nothing, for this woman had no real estate; she had no realty; her estate in this property was not real; that she only had personalty. It is true that’Mrs. DeMoore had no fee title; all the interest she had was an equitable one.

Can it be doubted that she meant by this item in her will, that whatever interest she had in this realty should go one-half to Mrs. Stevens and one-half to Mrs. Coon? The language'in which Mrs. Coon’s name is mentioned would be idle, would be meaningless, unless this woman had this in her mind.

Without going further into this, the authorities are numerous that in the construction of a will one must look into the meaning. Another is, that you must not make a will for the testator, or substitute anything, but if you know just what the testator meant and intended to do and can ascertain that from the language of the will, you can cany,that into effect.

Numerous authorities have been examined, but we have not had time to write out an extensive opinion in this case.

The authorities are so well collected in Underhill, Wills, and especially in Chap. 14, and the authorities so fully cited there, that we think, in that chapter arid the authorities there cited, and especially in Sec. B19, as I recollect it, that they fully justify the conclusion at which we have arrived.

There is not a particle of doubt in my mind, or in that of any of the court, that the authorities authorize us to make this finding: That Snyder, the executor of Wm._B. DeMoore, take the distribution to which DeMoore would have been entitled if his wife had died intestate, including his interest in this will; that Mrs. Coon take one-half and Mrs. Stevens one-half, together with all the other personal property, and the decree will be drawn accordingly.


author: WINCH, J.

text:
    CONTRACTS — MORTGAGES—NOTICE—LiS PENDENS.
    [Cuyahoga (8th) Circuit Court,
    November 23, 1903.]
    Hale, Marvin and Winch, JJ. ■
    Wood Sash, Door & Paint Co. v. A. W. Burrows et al.
    1. Executory Land Contract or Mortgage From Executory Vendee not Entitled (ro Record — Not Constructive Notice.
    Neither an executory contract for the sale and purchase of real estate, nor a mortgage given by a vendee in possession before receiving a deed, is entitled 1 c record under Secs. 4133 and 4134 Rev. Stat., nor is a mortgage given by the vendee, before receiving a deed and which has been recorded in the office of the county recorder, constructive notice to a subsequent assignee of the contract or to those claiming under him.
    2. Bona Fide Purchaser Claiming Through Executory Contract Given in Judicial Proceeding Protected Against Prior Mortgages.
    Where a trustee, appointed by the court in a proceeding commenced under Sec. 5803 Rev. Stat., to sell an entailed estate, executes an executory contract for the sale of the land, which is confirmed by the court and recorded upon the court record, and possession is given thereunder to the vendee, and such vendee, before completing his contract and receiving a" deed, gives a mortgage upon the land to a third person, which is recorded but is not brought to the notice of or confirmed by the court, and thereafter the vendee, with the approval of the trustee, assigns his contract to another who has not actual knowledge of the mortgage, which assignment is confirmed by the court, and such assignee completes the contract and receives a deed from the trustee, which is confirmed by the court, and the land is subsequently conveyed to a tona fide purchaser who is without actual knowledge of the mortgage: Held, such tona fide purchaser is not bound to search the records for mortgages from a vendee who has not received a deed for the land, nor is he charged with constructive notice thereof, but takes the land free and clear from such incumbrance.
    3. Prior Equitable Right Lost by Laches.
    The rule in equity that he who is first in time is first in right has no application where the former has been guilty of laches which vitiates his right to enforce it against the other who has been more vigilant; and a fortiori where the latter has perfected his title in law. Hence, although in the case above stated, the mortgage was an equitable assignment to the mortgagee of the interest of the vendee in the land, and was prior in time to the assignment of the contract and the delivery of the deed, yet the mortgagee lost his priority in failing to bring his mortgage to the attention of the court and having it confirmed and entered upon the record of the court proceeding before the assignment of the executory contract and the execution and delivery.of the deed to the assignee.

      4. Doctrine of Lis Pendens.
    The doctrine of Us pendens is notice to the world of the rights claimed by the parties in the subject matter of an action during its pendency, and rights acquired therein during the pendency of the action are bound by the final judgment; but such doctrine has no application to persons acquiring rights ill accordance with, and relying upon, the final decree.
    Appeal from the court of common pleas. ,
    Samuel Williamson, executor of the estate of Thomas Bolton, deceased, began proceedings in the court of common pleas for the purpose of selling some entailed real estate belonging to said estate.
    The court found upon due hearing that it would be for the best interest of the estate and of all parties interested therein to sell said property, and appointed C. C. Bolton trustee to plat and sell the same and r.eport his proceedings to court for confirmation. This order was made in July, 1895.
    On October 8, 1897, said C. C. Bolton, trustee, contracted to sell to the defendant, A. W. Burrows, sublots Nos. 1 to 22 for $20,800 and agreed to give deeds for each sublot separately upon payment for that sublot. The price of'sublot number nine in question in this case was $1,000.
    The contract between Burrows and Bolton was reduced to writing and signed and witnessed and on October 11, 1897, was duly approved by the court of common pleas as being for the best interest of all parties and was duly confirmed. That contract was recorded in Vol. 541, page 25 i of the records of said common pleas court.
    Burrows took possession of said property under this contract and began the erection of certain houses thereon.
    In February, 1898, he paid Bolton the sum of $600, of which $300 were to be applied to the payment of sublot number nine.
    He began the erection of a house upon lot No. 9 as well as other houses on other sublots of this same property.
    While in possession of the property under this contract, BurroXvs gave to the plaintiff, in this action, a note for $580, and to secure the payment thereof, executed and delivered to plaintiff a mortgage on sublot No. 9. The mortgage was executed in all particulars in accordance with Sec.' 4106 Rev. Stat. and was handed to the county recorder for record, on the same day and was duly recorded.
    At -the time of giving this note and mortgage the house being erected on sublot No. 9 was reasonably worth $2,000.
    After the execution and delivery for record of this mortgage, Burrows assigned to Clark and Benton all his right, title and interest in his land contract and this assignment was duly approved by the court of common pleas. He delivered possession of the premises to Clark and Benton.
    Thereafter Clark and Benton paid to' Bolton the balance of the $1,000 purchase price of sublot No. 9 and received from him a deed therefor, reciting his authority under the aforesaid order of the court.
    To secure money to pay this balance due for this sublot under the contract, Clark and Benton gave a mortgage to The Permanent Savings & Loan Co. and afterwards sold the house and lot to defendant, Grace Heyner, and she, to pay Clark and Benton and The Permanent Savings & Loan Cov gave a mortgage, to The Cleveland Trust Co.
    Clark and Benton gave Grace Heyner a warranty deed.
    At the time Clark and Benton took possession of these premises, they knew of the possession of Burrows and of the buildings which were in process of erection by him, but there is no evidence that Grace Heyner had any actual knowledge of either the land contract or the mortgage which Burrows had given to plaintiff.
    Plaintiff claims that this mortgage executed to it by Burrows was such a paper as was entitled to record, and that the record of the mortgage is constructive notice to the world of the rights of plaintiff therein, and that, therefore, all who succeeded to the title to sublot No. 9 after this mortgage had been left for record took subject to plaintiff’s claim.
    Defendants claim that this mortgage is not an instrument that was required to be recorded and that, therefore, no constructive notice could be chargeable to defendant, Grace Heyner; that the land contract between Bolton and Burrows was not entitled to record, and that, therefore, this mortgage, having for its source only this contract, stands necessarily upon the same ground; that, if the contract is not entitled to record, neither is the mortgage.
    Allison M. Gibbons, for plaintiff:
    The land contract was entitled to record. Section 4134 Rev. Stat.; 16 Am. & Eng. Enc. Law (2 ed.) 158; Newcomb v. Fiedler, 24 Ohio St. 463; Jones v. Lewis, 8 Re. 368 (7 Bull. 211) ; Baldwin v. Boole, 74 Ill. 97; Smith v. Price, 42 Ill. 399; Kicker v. Moore, 77 Me. 295.
    Vendee’s interest in the land. Sites v. Keller, 6 Ohio 483, 484; Pollard v. Kinner, 6 Ohio 528; Brock v. Hidy, 13 Ohio St. 306; Jones v. Lewis, 8 Re. 368 (7 Bull. 211); Thayer v. Howard, Wright 700; Churchill v. Little, 23 Ohio St. 301.
    Vendee is in possession under land contract. Ives v. Commissioners of Insolvents, Wright 626; Jaeger v. Hardy, 48 Ohio St. 335 [27 N. E Rep. 863] ; Alemania L. & Bldg. Co. v. Frantzreb, 56 Ohio St. 493 [47 N. E. Rep. 497] ; Coggshall v. Bank, 63 Ohio St. 88 [57 N. E. Rep. 1086] ; Sinclair v. Armitage, 12 N. J. Eq. 174, 177; Jones v. Lapham, 15 Kan. 540; Laughlin v. Braley, 25 Kan. 147; Baker v. Bishop Hill Colony, 45 Ill. 264; Avery v. Dufrees, 9 Ohio 145, 147; Brush Elec. Co. v. Electric Mfg. Co. 6 Dec. 475 (4 N. P. 279) ; Loewenstein v. Townsend, 2 Circ. Dec. 424 (4 R. 69) ; Manley v. Hunt, 1 Ohio 257; McCombs v. Ploward, 18 Ohio St. 422, 436; Smith v. Loewenstein, 50 Ohio St. 346 [34 N. E. Rep. 159] ; Brock v. Hidy, 13 Ohio St. 306 ; Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 156 [5 N. E. Rep. 417; 58 Am. Rep. 806] ; Whittier v. Stege, 61 Cal. 238.
    Purchaser from vendor takes subject to rights of vendee. Mutual Aid Bldg. & L. Co. v. Gaslie, 56 Ohio St. 273 [46 N. E. Rep. 985] ; Manley v. Hunt, 1 Ohio 257; Butler v. Brown, 5 Ohio St. 211; Warvelle, Vendors 219, 221; Moretón v. Reese, Wright 381, 382.
    Purchaser with notice of right to possession in another does not take bona fide and without notice. Jones v. Lewis, 8 Re. 368 (7 Bull. 211).
    Right to possession may be express or implied. 1 Warvelle, Vendors 183; Holt v. Hemphill, 3 Ohio 233; Baldwin v. Bank, 1 Ohio St. 141, 148; Mitchell v. Ryan, 3 Ohio St. 377; Dukes v. Spangler, 35 Ohio St. 119, 125; Woolsey v. Seeley, Wright 360; Martin v. Scofield. 41 Wis. 167; Chappell v. McKnight, 108 Ill. 570; Williams v. Forbes, 47 Ill. 148; Druse v. Wheeler, 22 Mich. 439 ; Drake v. Barton, 18 Minn. 462.
    Equitable estates can be mortgaged. Stover v. Bounds, 1 Ohio St. 107, 108; Paine v. Mason, 7 Ohio St. 198; Wright v. Bank, 59 Ohio St. 80 [51 N. E. Rep. 876] ; 20 Am. & Eng. Enc. Law. (2 ed.) 915; Brush Elec. Co. v. Electric Mfg. Co. 6 Dec. 475 (4 N. P. 279) ; Loewenstein v. Townsend, 2 Circ. Dec. 424- (4 R. 69) ; Manley v. Hunt, 1 Ohio 257; Ives v. Commissioners of Insolvents, Wright 626; McCombs v. Howard, 18 Ohio St. 436; Jaeger v. Hardy, 48 Ohio St. 335 [27 N. E. Rep. 863] ; Smith v. Loewenstein, 50 Ohio St. 346 [34 N. E. Rep. 159] ; Alemania L. & Bldg. Co. v. Frantzreb, 56 Ohio St. 493 [47 N. .E. Rep. 497] ; Coggshall v. Bank, 63 Ohio St. 88 [57 N. E. Rep. 1086] ; Jones v. Lapham, 15 Kan. 540; Sinclair v. Armitage, 12 N. J. Eq. 174, 177; Baker v. Bishop Hill Colony, 45 Ill. 264; Crane v. Turner, 67 N. Y. 437.
    Such mortgage is entitled to record. Sections 4106 and 4133 Rev. Stat.; Wright v. Bank, 59 Ohio St. 80 [51 N. E. Rep. 876| ; Churchill v. Little, 23 Ohio St. -301; Bulklev v. Stephens, 29 Ohio St. 620.
    Such record is notice to the world. 2 Dembitz, Land Titles p. 127, n. 25.
    Other court records as notice. 21 Am. & Eng. Enc. Law (2 ed.) 001, n. 2; Roberts v. Doren, 10 Re. 349 (20 Bull. 391); Omwake v. Jackson, 8 Circ. Dec. 235 (15 R. 615) ; 11 Am. & Eng. Enc. Law (1 ed.) 445; Cooley, Taxation 238; 11 Am. & Eng. Enc. Law (2 ed.) 1010, 1012; Williamson v. Jones, 43 W. Va. 562 [21 S. E. Rep. 411; 38 L. R. A. 694; 64 Am. St. Rep. 891]; Peto v. Hammond, 30 Beav. 495: Pomeroy, Eq. Jurisp. Secs. 626 to 628; Wade, Notice Secs. 46, 251, 252, 261; Rorer, Jud. Sales.Secs. 113, 114; Scott v. Douglass, 1 Ohio (pt. 1) 221; McChesney v. Wainwright, 5 Ohio 452; Larrowe v. Beam, 10 Ohio 498; Bonner v. Ware, 10 Ohio 465; Piatt v. St. Clair, 6 Ohio 227; Mattoon v. Clapp, 8 Ohio 248; Reeder v. Barr, 4 Ohio 446 -[22 Am. Dec. 162] ; Woods v. Dille, 11 Ohio 455; Nellons v. Truax, 6 Ohio St. 91; Betz v. Snyder, 48 Ohio St. 492 [28 N. E. Rep. 234; 13 L. R. A. 235] ; Cunningham v. Buckingham, 1 Ohio 264; Williams v. Sprigg, 6 Ohio St. 585; McKinzie v. Perrill, 15 Ohio St. 162; Morris v. Daniels, 35 Ohio St. 406, 414; see, also, Bodely v. Ferguson, 30 Cal. 511; Sellers v. Corwin, 5 Ohio 398, 409 [24 Am. Dec. 301] ; Reynolds, In re, 16 Nat. Bank Reg. 158; Van Gorder v. Lundy, 66 Iowa 448 [23 N. W. Rep. 918] ; Wagner v. Cohen, 6 Gill (Md.) 97, 102, 104 [46 Am. Dec. 660] ; Procter v. Farnam, 5 Paige 614.
    Henderson & Quail, for The Cleveland Trust Co. and Grace E. Ileyner:
    A mortgage upon the equitable interest created in a vendee by a land contract is not an instrument entitled to record under our recording-statutes (Secs. 4133 and 4134 Rev. Stat.), and, if recorded, is not constructive notice of the rights of the mortgagee. Section 4106 Rev. Stat. contains the only pertinent provisions found in the chapter for the execution- of instruments, viz., “A deed, mortgage or lease of any estate or interest in real property shall be signed by the grantor, mortgagor or lessor, and such signing shall be acknowledged,” etc.
    The mortgage given by Burrows to the plaintiff operated simply as an assignment of the land contract which he had with Bolton, but it is claimed that, being- executed in conformity with Sec. 4106 Rev. Stat., it is entitled to record as a -mortgage upon some “estate or interest in real property.” We maintain that the interest which Burrows had could not be enlarged by the form or character of the instrument by which it is conveyed. Churchill v. Little, 23 Ohio St. 301, 308.
    If the contract itself was not entitled to record, no- assignment of it, however formal, is entitled to record. Indeed, the Supreme Court, in this’ same case, has said, in substance; that if the contract is not entitled ty record, “the instrument by which the contract is assigned stands necessarily upon the same ground.”
    The land contract was not entitled to record as conveying “any estate or interest in real property.” Churchill v. Little, supra.

    The mortgage (to use the words of Judge Hale in Wiggins v. Campbell, 4 Re. 122 [2 Clev. L. Rep. 122]) “not being an instrument that was required to be recorded, no constructive notice can be chargeable ” to the defendants, The Cleveland Trust Company, or Grace E. Heyner.
    Arnold Green, for Grace Heyner, cited:
    12 Am. & Eng. Enc. Law (1 ed.) 208; Secs. 5803, 5807, 5813 Rev. Stat.; Rorer, Jud. Sales Secs. 29, 64, 76, 10C, 108, 109, 128, 962, 963, 964, 965.
    A purchaser will not be aided in equity when there is no confirmation, although he has paid the purchase money. Dickey v. Beatty, 14 Ohio St. 389; Lieby v. Ludlow, 4 Ohio 469, 493; Rorer, Jud. Sales Secs. 130, 131, 148, 166, 182, 498: Reynolds v. Coddington, 1 Gaz. 108; 12 Am. & Eng. Enc. Law (1 ed.) 219, n. 2.
   WINCH, J.

Thomas Bolton died years ago, leaving certain of his real estate entailed. His executor began proceedings under the statutes regulating the sale of entailed estates, pursuant to which the court appointed Charles C. Bolton trustee, with directions that he plat and sell said real estate.

On October 8, 1897, said Charles C. Bolton, as such trustee, entered into a written contract for the sale to the defendant, A. W. Burrows, of a certain lot in the plat which he had made. The price of the lot was $1,000 and the contract was signed by the parties to it and their signatures attested by two witnesses, but it was not acknowledged. This contract was reported to the court, duly approved and confirmed by it, ordered to be recorded on the records of said court and thereafter duly recorded on said records.

Burrows took possession of the lot pursuant to the terms of his contract and began the erection of a dwelling house thereon. He had paid $300 on the consideration named in the contract and expended $2,000 in the erection of said house, when, on March 3, 1898, being still in the possession of said premises, he executed and delivered to plaintiff a mortgage on said lot to secure the sum of $580 due it for material and supplies theretofore furnished by it towards the erection of said house. Said mortgage was executed in all particulars in accordance with Sec, 4106 Rev. Stat. and was duly left for record vGth the county recorder on the day it was executed and thereafter by him duly recorded.

After the delivery and recording of said mortgage, but on the same day, Burrows assigned his contract for the purchase of said lot to the defendants, Clark and Benton, and delivered possession of the premises to ■them. This assignment of the contract was reported to the court, approved by it and the, trustee was'Ordered to carry out the terms of the contract with Clark and Benton, upon their fulfilling their part of said contract. This they did, paid the balance of the purchase price due thereon and received from the trustee a proper deed of the premises, which they duly recorded.

Thereafter Clark and Benton conveyed said premises for a valuable consideration by warranty deed to the defendant, Grace Heyner.

Neither Clark and Benton nor Grace Heyner had any actual knowledge of the mortgage to plaintiff until after the transactions above stated.

Suit being brought by plaintiff to foreclose its mortgage, the only question presented for the consideration of this court is whether the record of said mortgage was constructive notice to subsequent bona fide purchasers of said premises without actual notice of the mortgage.

We think this case must be decided against the plaintiff upon the authority and reasoning of the case of Churchill v. Little, 23 Ohio St. 301, the syllabus of which reads as follows:

“When an executory contract for the purchase of land is assigned by the purchaser, either absolutely or as collateral security, and the assignor subsequently mortgages the contracted premises, the relative rights of the assignee and mortgagee are not determined by the fact that the mortgage was duly executed and recorded. In such case, and between parties thus situated, the act providing for the execution and recording of deeds, * * * has no application.”

When Churchill v. Little, supra, was decided the statute regulating the execution of instruments for the conveyance' of land included only instruments by which land should be conveyed or otherwise affected or incumbered in law. The court held that an executory contract for the purchase and sale of land is not an instrument of that character; that though it is a legal instrument and forms the basis of legal as well as equitable remedies, it does not convey, or purport to convey, or legally to incumber or affect any estate or interest in the land.-

The statute now in force (Sec. 4106 Rev. Stat.) provides how “a deed, mortgage, or lease of any estate or interest in real property” shall be executed, and there can be no question that the chapter of the statutes treating on conveyances and incumbrances makes no provision for the execution of land contracts.

In said chapter Secs.-4133 and 4134 Rev. Stat. provide that all mortgages and all other deeds and instruments of writing for the conveyance or incumbrance of any lands, tenements or hereditaments, “executed agreeably to the provisions of this chapter,” shall be recorded, etc.

There being no provision in the chapter regulating the execution of land contracts, it follows that such contracts are not entitled to record. The contract between Bolton, trustee, and Burrows, was not acknowledged, in itself a fact precluding its record. The contract not' being entitled to record, it follows under the decision in Churchill v. Little, supra, page 308, that the mortgage, “-the instrument by which the contract is assigned, stands necessarily upon the same ground.”

Following the reasoning of Churchill v. Little, supra, on page 310 of said report, if we are right in the above conclusion the plaintiff, as well as the defendants, Clark and Benton, are to be regarded as the assignees of the equitable interest of Burrows, and, as such, they stand upon the same footing, with at least this difference, that the assignment to the plaintiff was prior in time.

“The general rule in such cases is, that he who is first in time is first in right, but this rule is not of universal application. In a contest between equities it is not allowed to prevail, where it appears from any fapt or circumstance in the case, independent of priority of time, that the holder of the junior equity has the better right to perfect his equitable title or interest by calling in the outstanding legal estate. In such case he has the better equity. Prima facie, however, the assignee of an equity must abide the case of the assignor, and the superiority of the equity of the first purchaser is, in general, undeniable, unless he. has been guilty of laches, which vitiate his title or deprive him of the right to enforce it against others who have been more vigilant.”

Confining our inquiries for the present as to the lelations of plaintiff to Clark and Benton, was plaintiff guilty of any such laches as to deprive it of the right to enforce its mortgage against them?

It seems that plaintiff gave no notice of its mortgage to Bolton, trustee, neither did it report the mortgage to the court and ask for its approval of this partial assignment of the contract to it. The record of the mortgage was certainly no notice, constructive or otherwise, to the 'court or to Bolton, trustee, if he may be called the vendor. The better view of the case is that the court, not the trustee or officer appointed by it to make sale, is the vendor; but assuming that Bolton, trustee, was the vendor, there is no rule of lew requiring a vendor to search the records for iucvml.ranees by the vendee before deed is finally delivered pursuant to the contract.

Had plaintiff notified the trustee, actual knowledge of its claim would doubtless have come to Clark and Benton before the trustee accepted them on the contract with Burrows and before the court approved the assignment of the contract to them.

The plaintiff neglected to require Burrows to produce his contract with the trustee and deposit it with the mortgagehad this been done Burrows would have been unable to assign the contract to Clark and Benton or the)’ would have been put upon inquiry as to what had been done with the contract by Burrows.

Not only did plaintiff give the trustee and court no notice of its mortgage, but it at no time paid or offered to pay the balance due on the contract to the trustee.

Plaintiff took its mortgage as security for a preexisting debt, and it would seem that by its laches it lost the better right it may have had by reason of its prior equity to perfect its title.

I f then, as between plaintiff and Clark and Benton, the latter had the better right to call in the outstanding legal title, and did so, in how much better position is the defendant, Grace Heyner, the present owner of the legal title, who is a bona fide purchaser for value and without notice of plaintiff’s claims.

It remains to consider the contention made, by plaintiff that Grace Heyner, holding a title coming through the proceedings of the court for the sale of ap entailed estate, by the record of such proceedings, was advised that Burrows at one time had an interest in the property by way of executory contract and so was bound to search the records for conveyances and incumbrances by Burrows during the time that he held such interest. In other words plaintiff urges the application of the rule of notice from lis pendens.

As we understand the doctrine of lis pendens, a pending suit is notice to all the world of rights claimed by parties to the suit during its pendency. Grace Heyner bought long after final order regarding this property and when the record of the suit had to be examined by her, it showed that the court had approved a contract with Burrows; that he had assigned said contract to Clark and Benton; that they had succeeded to all of Burrows’ rights, had complied with the terms of the contract, became entitled to a deed and had received it pursuant to the court’s orders. She found an adjudication of the court and a decree transferring the title to the property from the Bolton heirs to Clark and Benton. Burrows was as much concluded by this decree as anybody could be. In one sense, as purchaser under the order of sale, he was a party to the case and all his rights, including all rights granted by him during the pendency of the case, were judicially determined therein.

Plaintiff acquiring its rights from Burrows during the pendency of this case which was lis pendens to it, could have applied to the court for an adjudication of its claims. By failing to do so it is bound by the final decree in the case vesting the title in Clark and Benton.'

We find there is no equity in plaintiff’s claim and decree may be drawn accordingly.


text:
    BENEFICIAL ASSOCIATIONS.
    [Cuyahoga (8th) Circuit Court,
    July 24, 1903.]
    Marvin, Winch and Laubie, JJ.
    (Judge Laubie of the Seventh Circuit sitting in place of Judge Hale of the Eighth Circuit.)
    Court Forest City No. 10, F. of A. v. Robert Rennie.
    1. Member.of Beneficial Association Bound by Constitution and By-laws.
    A person becoming a member of a beneficial association thereby hinds hinv self to be governed by its constitution and by-laws.
    2. Right to Sick Benefits Governed by By-law in-Force When Sickness Began —Cannot be Changed.
    The right of a member of a beneficial association to sick benefits accrues and becomes fixed at the time his sickness begins, and his right thereto is governed by the by-laws then in force, and not by an amendatory by-law passed thereafter reducing the amount to be paid.
    Error to Cuyahoga common pleas court.
   MARVIN, J.

Suit, was brought by Robert Rennie, hereinafter spoken of as plaintiff, against the plaintiff in error, hereinafter spoken of as defendant.

The defendant [Court Forest City No. 10, Foresters of America! is a corporation organized under the laws of Ohio as a beneficial association, and conducts its business in pursuance of its constitution and bylaws.

The plaintiff was a member of the defendant association and became sick while a member in good standing, and brought his suit to recover sick benefits.

A jury was waived and a trial had to the court upon an agreed statement of facts. The result ’of the trial was a finding and judgment in favor of the plaintiff. By proper proceedings the case is here for review upon error; a bill of exceptions is filed with the petition in error setting forth all the evidence introduced at the trial, and such evidence consists solely of said agreed statement of facts. Said agreed statement of facts is in the following words:

"It is agreed that the facts in this case are as follows:
"Defendant is a corporation duly incorporated under the laws of Ohio.
"Plaintiff, Robert Rennie, became a member of defendant lodge in the' year of 1876, and paid his dues therein regularly until May, 1900, but at that time ceased to pay dues, and is still in good standing by reason of the following by-laws. Section 12, page 18:
" ‘If a member not in arrears should be taken sick, he cannot become delinquent while sick, or be deprived of his weekly benefits, but his dues shall be deducted from his benefits. But no unfinancial member shall be entitled to benefits.’-
"That on or about the-day of-, 1883, he became disabled by sickness and commenced to draw'sick benefits; that his sickness continued from that time up to the time of the commencement of this suit, and that he is a helpless invalid, unable to pursue any business avocation, and confined to a wheel chair for means for locomotion.
"That he drew sick benefits from about the-day of-, 1883,. until February 22, 1900.
"That the defendant lodge then refused and continues to refuse to pay any sick benefits to the plaintiff.
"That at the time plaintiff commenced to draw sick benefits he did so under Sec. 1, Art. 4, of the by-laws, which reads as follows:
" ‘Bach member of this court who shall be disabled by sickness or injury to his person from following any business avocation (provided such sickness or injury shall not have been occasioned by his own improper conduct), and who shall have been a member thereof, by initiation for six months, or upon clearance for three months, shall be entitled to benefits as follows: Five dollars ($5) per week for sixteen weeks, two dollars and fifty cents ($2.50) for the succeeding.sixteen weeks and one dollar ($1) per week as long as the sickness continues, provided,’ etc.
"That on April 19, 1899, the above by-law was amended in accordance with the provisions of See. 2, Art! 10 of the by-laws which reads as follows:
" ‘No alterations, additions or amendments to these laws shall be made unless written notice thereof be given at the meeting of court, previous to being acted upon, which shall be a summons meeting, and then concurred in by a vote of three-fourths of the members present. Provided, however, that nothing herein ,shall prevent a suspension of the rules for immediate purposes, by a four-fifths vote of the members present at any regular meeting. ’
1 ‘ That the said amended by-law is now known as Sec. 1, Art. 6, and reads as follows:
“ ‘Each member of this court who shall be disabled by sickness or injury to his person, from following any business avocation (provided such sickness or injury shall not have been occasioned by his own improper conduct), and who shall have been a member thereof for six months, shall be entitled to benefits as follows: Two dollars and fifty cents for the first week of sickness, then five dollars per week for the next twelve weeks; then if his sickness still continues he shall receive two dollars and fifty cents for the next thirteen weeks, then all benefits shall cease for said sickness; provided,’ etc.
“That said amended by-law was confirmed by the executive committee of the grand court of Ohio, and became effective on or about December 9, 1899.
“That the plaintiff has exhausted his remedies in the lodge tribunals, and has conducted nine appeals, in accordance with Sec. 21 (e), Art.-18 of the constitution and general laws of the Foresters of America, which reads as follows:.
“ ‘A member shall not resort to the civil courts for redress for an alleged injury until he has exhausted every means of appeal in the order. The penalty of noncompliance with this law shall be expulsion from the order. ’
“That plaintiff prevailed in but one of said appeals, the fourth or fifth, and was defeated in nil the rest; and that the delay in commencing suit herein was owing to the time necessarily occupied in prosecuting said appeals.
“That plaintiff is entitled to amount asked for in his bill of particulars, unless his rights are barred by the passage of said by-law known as Sec. 1, Art. 6, above given, and all questions herein are waived save the question as to whether said passage1 of said by-law deprives plaintiff of further rights to sick benefits by reason of said disability. ’ ’

It will be seen that the only question here to be considered is as to the effect of the amendment to the by-laws enacted April 19, 1899. If the plaintiff is bound by this by-law, the judgment of the court below was erroneous; if he is not so bound, then the judgment was right.

The sickness of the plaintiff, on account of which he claims to recover, came upon him in 1883 and has continued ever since; this was something like sixteen years before this by-law was amended. As the by-law stood at the beginning of this sickness, the plaintiff was entitled to receive from the defendant five dollars per week for sixteen weeks, two dollars and fifty cents per week for the succeeding sixteen weeks, and one dollar per week from that time on until the termination of such sickness. lie did receive the five dollars per week and the two dollars and fifty cents per week for the entire time provided for in this 'by-law, and one dollar per week up to the time when, the amendment was made. Of course, if he is bound by this amendment, he is entitled to nothing more, as the time provided for in the amended by-law has long since elapsed.

The right to make and bind its members by the amended by-law is • claimed on the part of the defendant by reason of See. 2, Art. 10, of the by-laws, which was in force at the time the plaintiff became a 'member of the association, which is as follows:

“No alterations, additions or amendments to these laws shall be m.cide unless written notice thereof be given,” etc.

It will be noticed that there is no affirmative provision horn that the by-laws may be amended; that they may be amended is implied from the language used, the provision being simply that they cannot be amended except by pursuing the course pointed out in this law.

When the plaintiff became a member of the association, be, of course, bound himself to be governed by the constitution and by-laws of the association. Did this bind him to be governed by the amended by-law passed after his right to draw benefits because of sickness accrued ? The answer to this question is by no means free from doubt. Numerous cases are found in the reports in which it has been held that where there is a by-law of such an association as this, affirmatively providing for amendments to the by-laws, a member is bound by such amendment even though made after the right to draw sick benefits accrued.

In Stohr v. Musical Fund Soc. 82 Cal. 557 [22 Pac. Rep. 1125, 1126], this language is used in the first clause of the syllabus:

“A by-law of a mutual benefit corporation which provides for the payment of a weekly sum to members in case of sickness (without specifying how long such payment shall continue) may be changed after sickness has commenced, so as to limit the period such payments shall continue after such change, but not so as to effect payments which have become due before the change.”

The second clause of the syllabus reads:

“The foregoing does not depend upon an express power to change reserved by the by-laws. The contract resulting from the by-laws will be construed with respect to existing statutes authorizing a change, which statutes will be held to enter into and form a part of the contract. ”

One of the defenses set up in the ease last named was that a change had been made in the by-laws altering the amount to be paid to the beneficiary, and that such change was authorized by a by-law in force at the time the plaintiff became a member of the association. Another defense made was that this change had been made in the by-law as to the amount to be paid to the beneficiary, without showing any by-law authorizing such change to be made. But the court say, as shown by the last clause of the syllabus hereinbefore quoted, that the change in the by-law as to the amount of benefits could as well have been made without as with the by-law express^ conferring the right to make such amendment.

Section 3630 Rev. Stat. provides, in express terms, that the constitution and by-laws of such associations may be changed or amended, so that the reasoning of the California court, if followed by us, would result in our holding that it is a matter of indifference whether there is any affirmative provision in the by-laws for their amendment or not. There is, however, an intimation that if the time for which benefits are to be paid is fixed by a by-law existing when such sickness begins, the change thereafter made could nof affect the beneficiary. This intimation is shown by the words in parentheses quoted in the first clause of the syllabus. Those words are:

“"Without specifying how long such payments shall continue.”

The ease under consideration by the .California court was one in which it was provided that a member “in case of sickness or accident by which he is incapacitated from following his profession, be entitled * * '* to receive the sum of ten dollars per week, to take effect from the day of such notice. ’1

This differs from the case now under consideration in that in the present ease the by-law as" it existed when the sickness began provided for payment during the continuance of "such sickness.

In Stohr v. Musical Fund Soc. supra, it is said by the court, on page 561 of the opinion:

“Now, under the contract, nothing was due before the sickness actually took place. Benefits do not accrue for future sickness. The right of the plaintiff to benefits for future sickness is not different in its nature from the right of the well members to benefits for future sickness. In the one case, the members have a right to future payment in case they become sick; in the other, the plaintiff has a right to future payments in case he continues sick. And if there was no power to change the by-law in the one case, there was no power to change it in the other, which is equivalent to saying that there was no power to change it at all. * * * That the foregoing would apply if the by-law under consideration had specified that the weekly payments were to continue as long as the sickness continued. But it doe's not so specify. The time during which the payments were to continue is left indefinite. The substance of the contract is, in our opinion, that fin ease of sickness, the member is to receive weekly payments for an indefinite period of sickness, subject to the power of the defendant tq change the provision authorizing such payments, so far as future payments are concerned. ’ ’

As already said, the intimation is very strong, that if the provision of the by-law in force at the time the sickness began had provided that the payment should be made so long as such sickness continued, the result would have been different. It is, perhaps, not quite clear why the result would have been different, because the reasoning is that there was ho vested right in the beneficiary to have payments made while the sickness continued; more than there would be a vested right in a member to have payments made in case he should become sick. However, in the present ease, we might hold that the plaintiff was entitled to recover, without holding contrary to Stohr v. Musical Fund Soc. supra. There are cases, however, which seem to go further than Stohr v. Musical Fund Soc. supra, notably that of Fugure v. Mutual Society of St. Joseph, 46 Vt. 362. In this ease, suit was brought by the widow of a deceased mamber; the provision of the by-laws in force when the decedent became a member provided for a payment of twenty-five cents per day to the widow of a deceased member as long as she remained a widow; there was also a bylaw then in force authorizing changes to be made in the by-laws. In January, 1869, the husband of the plaintiff died, he being then a member of the association in good standing. Six months thereafter the by-laws were amended, so as to provide that the aggregate amount to be paid to any widow under the twenty-five cent per day rule, should be $200; this sum had been paid to the widow, and it was held that she was bound by the amended by-law and could recover nothing more. .The reasoning in this case does not seem to us to be sound. When the husband died the rights of the widow under the contract as it then stood became fixed, and to permit the association to reduce the amount to be paid by the adoption of a by-law was to permit it to repudiate an obligation already incurred and fixed by the death of the husband.

Many cases are cited to us in support of the position taken by the defendant, which more fully commend themselves to our judgment than the case of Stohr v. Musical Fund Soc. supra. See Bowie v. Grand Lodge, 99 Cal. 392 [34 Pac. Rep. 103], On the other hand, cases are not wanting in support of the position of the plaintiff that no by-law can be 'passed after the sickness begins, by reason of which the beneficiary is entitled- to payments which can affect his right to payment during the continuance of such sickness.

The case of Becker v. Beneficial Soc. 144 Pa. St. 232 [22 Atl. Rep. 699; 27 Am. St. Rep. 624], is directly in point, and the reasoning of the court commends itself to us. In speaking of the amendment made to the by-laws of the association by which the amount to be paid to the beneficiary was reduced, this language is used on page 235:

“This was certainly an easy mode of relieving the society from an obligation, and, if successful, will doubtless be followed by other similar associations. The difficulty in the way of this convenient mode of paying debts is that it is repudiation pure and simple. The argument that the plaintiff, being a member of the society, is bound by the by-law, does not meet the difficulty. It may be a good by-law as to future cases, but at the time it was passed the plaintiff was something more than a member. He was a creditor whose rights had previously attached, and those rights cannot be swept away by such a scheme as this by-law.”

See, also, Startling v. Supreme Council, 108 Mich. 440 [66 N. W. Rep. 340; 62 Am. St. Rep. 709] ; Northwestern Ben. & Mut. Aid Assn. v. Wanner, 24 Ill. App. 357; Wist v. Grand Lodge, 22 Ore. 271 [29 Pac. Rep. 610; 29 Am. St. Rep. 603],

As already said, the answer to the question involved in this case is by- no means free from doubt. This is apparent from the authorities already cited, showing that the courts of last resort in different states have made different answers to the question, and whichever answer is given, the result, when it is worked out. may be such as to work an apparent injustice in a given ease.

If the by-laws of an association like the defendant may be amended so as to reduce the amount of sick benefits which will be paid 1o one who after such amendment shall become sick, and cannot be so amended as to reduce the benefits to be paid to one who is already sick al the time such amendment is made, the situation may be this: That A becomes sick on the fourteenth day of a given month; on the fifteenth day of that month the amendment is made reducing the benefits to be paid to a sick member below what they were 'fixed at by the law in force on the fourteenth ; on the sixteenth of the same month B becomes sick. Now to say that A shall receive a larger payment on' account of sick benefits than B, seems to work an injustice upon B or else to be granting a special favor to A; and yet there is this difference: That when A’s sickness began, the event bad happened which fixed a right in A to at once receive' something from the association; that something was the sick benefit provided by the by-law then in force, and in tlie ease at bar was to continue so long as tbe sickness continued, while in tlie case of'B the event which fixed an indebtedness from the association to him did not occur until after the time when the lesser payment was that provided by the law. It would seem that this distinction is such as to give a right in A not possessed by B. When the by-law was passed, A’s rights had been fixed by his becoming sick, and fixed under the old by-law. When B became sick Ms rights were fixed, and fixed under the new by-law.

Perhaps an equally and possibly more troublesome ease might be this (to reason this out entirely logically) : A becomes sick. The by-law in force at tlie time he becomes sick gives him the larger sick benefit. Thereafter an amendment is passed in pursuance of the statute of this state and in pursuance of the by-laws of the association. Such amendment is passed reducing the amount. Now to say that if he continues sick, no matter how long that sickness may continue, he shall receive the larger amount, but that if he gets well and remains well three days and again becomes sick, he shall receive the lesser amount provided by tbe amendment, affords a case, as already said, by no means free from doubt.

The opinion of Judge Harmon of the superior court of Cincinnati, in the case of Pellazzino v. German Catholic St. Joseph’s Soc. 9 Re. 635 (16 Bull. 27), seems to us to be sound. And we hold that the plaintiff’s rights are to be determined by the by-law as it existed at tlie time his sickness began, and the judgment of the court of common pleas is affirmed.


author: NORRIS, J.

text:
    PASSENGER AND CARRIER.
    [Crawford (3rd) Circuit Court,
    February 5, 1904.]
    Day, Mooney and Norris, JJ.
    Henry Ellsworth v. Pennsylvania Co.
    1. Contract or Carriage Construed as Other Contracts.
    A contract of carriage between a carrier of passengers and a passenger is subject to, and governed by, the same rules of construction as are applicable to contracts between individuals; and acts of corporations are followed by legal implication the same as the acts of individuals.
    2. Railroad Ticket a Contract fob Continuous Passage.
    As a general rule, a railroad ticket constitutes an agreement between the carrier and passenger for a continuous passage between the starting point and the place of destination. An express stipulation that the passenger shall make the journey by a continuous passage, js not unreasonable.
    3. Continuance of Broken Passage Under “Continuous Passage” Ticket.
    The rule, thct when the continuous passage called for in a railroad ticket necessitates a change of trains, the journey must be continued on the next available train, yields'to an agreement to the contrary. Such agreement" may be inferred from the acts and conduct of the company, or its agents.
    4. PASSENGER NOT ENTITLED TO STOP-OVER ON CONTINUOUS PASSAGE TICKET.
    A passenger traveling on a ticket which provides for a continuous passage from the starting point to place of destination is not entitled, as a matter of right, to a stop-over at an intermediate point; and if he voluntarily leaves the train and intentionally breaks the journey without the assent of the carrier, he cannot, after the intermission which he has thus created, again resume the journey under the same contract. But this rule is only applicable when the continuing of the journey is intentionally broken by the passenger, and without the assent or fault of the carrier.
    5. Plaintief May Resume “Continuous Passage” "When Journey Interrupted by Company.
    Plaintiff, with knowledge that the tráin which he intended to board did not go as far as his desired destination, before purchasing a ticket inquired of the ticket agent whether the ticket would be honored on such train, it being his purpose to use the ticket as far as the train went, and there wait for another train to carry him on to his destination; the agent, with knowledge of plaintiffs intention and purpose, unhesitatingly sold’ him a ticket to his ultimate destination, stamped “good for continuous passage to destination,” which was honored by the first conductor to the end of the run, and returned to plaintiff; neither the ticket agent who sold the ticket, nor the conductor who honored it gave plaintiff any instructions as to what train he should take after leaving the first train, which would be in compliance with the conditions of the ticket, nor did they give him any information as to what time 'a passenger train would depart for his place of destination; the train reached the end of its run at 8 p. m. the same day; plaintiff, believing that the first train on which •he could resume his journey would start at 7 a. m. the next morning, allowed the 11:55 p. m. train to go by; there was no intention on his part to break the continuity of the .journey; he boarded the 7 a. m. train the next day, the conductor of which refused to honor his ticket, and ejected him from the train: Held, it was the duty of the company to have instructed plaintiff as to how and when it intended to comply with its agreements to carry him on to his place 'of destination, and what was required of him in that behalf; that it was error for the trial court to arrest the case from the jury and enter a judgment for the company,
    ERROR to Crawford common pleas court.
    J. W. Coulter and T. E. Powell, for plaintiff in error.
    S. S. Wheeler, for defendant in error.
   NORRIS, J.

On March 28, 1899, Henry Ellsworth, plaintiff in error and plaintiff below, bought a ticket of the defendant, The Pennsylvania Company, at its railway ticket office at Wooster, Ohio. The ticket recites that it is, “Good for continuous passage to destination commencing only on date stamped on back hereof, or on the day following * * * no stop-over will be allowed on this ticket. * * * Agent must plainly stamp the date of issue on the back'hereof.”

There are other recitals in the ticket which do not pertain to this controversy. The agent did stamp on the back of the ticket its date which is March 28, 1899. Provided with this ticket the plaintiff boarded the defendant’s train at Wooster, presented said ticket to the conductor who accepted it for that ride and returned the ticket to the plaintiff? and on that train he journeyed toward Bucyrus as far as Crestline. Crestline was the end of that run. The train proceeded no farther than Crestline where it arrived at 8 p. m., or thereabouts. At Crestline the plaintiff left the train and there remained until the following morning, March 29, at 7:05, when he boarded one of defendant’s trains which ran-from Crestline to Bucyrus, each of which points were stations on the same line at which the train regularly stopped. Upon this latter train he was carried toward Bucyrus as far as the station of North Robison, where the conductor, having refused to accept said ticket for passage on that train from Crestline to Bucyrus, ejected him from the car and train, for the sole reason that the plaintiff insisted on pursuing his journey to Bucyrus, by virtue of said ticket, and the contract expressed by its terms. Such are in substance the allegations of plaintiff’s petition supplemented by the declaration that defendant’s servants, in removing him from the train, committed upon his person an assault and battery. Because of all this, plaintiff seeks recovery.

The answer is a general denial.

These issues came on for trial in the common pleas to a jury; the trial proceeded, and after plaintiff had submitted all his evidence, the court upon motion of the defendant in that behalf, arrested and withdrew the testimony, discharged the jury from further consideration of the case, and gave and entered judgment for defendant. This, on ground that the evidence of plaintiff showed no right of action against defendant. The motion of plaintiff for new trial was overruled. To Reverse this judgment and proceeding of the trial court, this cause iñ error is instituted, plaintiff claiming that the court erred:

1. In sustaining said motion and withdrawing the evidence and entering judgment for defendant.

2. That from the evidence the plaintiff was entitled to the verdict of the jury.

3. _ And that the co.urt erred in not submitting the case to the jury upon the evidence and proper instructions as to the law.

It is necessary even at the risk of repeating to state fully the facts disclosed by this record. The evidence of the plaintiff shows that about 6 p. M. on March 28, • 1899, he purchased his ticket from Wooster to Bucyrus, of defendant’s ticket agent at Wooster. Wooster, Crestline and Bucyrus are stations on the same line of defendant’s railroad. The next train passing through Wooster running in the direction of Bucyrus, was the train that he boarded which went no farther than Crestline. Of this fact he was acquainted when he was purchasing the ticket, and fully understood that the train was one of defendant’s regular passenger trains, scheduled not to go to Bucyrus, but that Crestline was the end of its run. 1 le had knowledge of the fact that plaintiff had no train running from Crestline to Bucyrus and halting there, which departed from Crest-line immediately after or shortly after the arrival of this train at that point. Plaintiff asked the agent before he purchased the ticket.if the ticket would be honored on this train, and the agent sold him the ticket without hesitation through to Bucyrus, with the knowledge that it was plaintiff’s purpose to use it as far as Crestline, on this train which ran to Crestline and stopped there. The agent gave him no instruction as to what train he should take on his arrival at Crestline, which would make compliance with the conditions of the ticket; and gave him no information as to what time a passenger train would depart for Bucyrus next after his arrival at Crestline. Being on board the train he presented the ticket to the conductor who examined it and punched it, and with this indorsement of it, as a right to proceed from Wooster to Bucyrus, returned the ticket to him.

This conductor who knew that his train went no farther than Crest-line, .and who knew when the next train would depart from Crestline to Bucyrus, and who knew that plaintiff must leave this train at Crestline, and must take another train at Crestline for Bucyrus, and that plaintiff liad bought the right to ride to Bucyrus on this ticket, and who knew the t.'nns of the ticket, and who is presumed to have known and whose duty if was to know, the requirements of defendant under it, and the construction which defendant put upon the contract, under just the circumstances which then confronted plaintiff, gave plaintiff no instruction as to how he should proceed after his arrival at Crestline to meet the requirements of the contract; and no information as to when the next train would leave Crestline for Bucyrus. The plaintiff did not know that a train departed from Crestline for Bucyrus at 11:55 p. m, which was the fact, hut was of the opinion that the next train after his arrival left Crestline for Bucyrus at about 7 :05 in the morning. And this train he entered as a passenger for Bucyrus on the morning of March 29, and from it he was ejected at North Robison in such manner as would seem amounted to an as'sault and battery. And these were the facts that were taken from the jury and upon which the judgment for defendant was rested, the court holding that under the law, measuring these facts by the contract, the plaintiff should not be permitted to recover.

We will treat the controversy as if the charge of assault and battery were not in the record.

This ticket is a contract made by the defendant with the plaintiff to carry the plaintiff from Wooster to Bucyrus by one continuous passage, commencing on March 28 or 29, at plaintiff’s option, at any time within that period after the hour the ticket was purchased. It is not questioned by defendant that the pasage commenced, and properly, on the train that plaintiff boarded at Wooster, and so continued as a journey commenced under the terms of the ticket, to Crestline.- And that so far the acts of the parties were strictly in compliance with the contract. ■

It is urged by the defendant that by not continuing his journey to Bucyrus, by the next train departing for Bucyrus, the train which left Crestline at about 11:55 p. m. of the twenty-eighth, the plaintiff took from the defendant the opportunity of complying with its contract, and voluntarily released defendant from further obligation to perform it, which, under the rule to be found in Hatton v. Railway Co. 39 Ohio St. 375, and elsewhere, excuses liability.

The stipulation that a passenger shall make under the contract his j ourney by 'a continuous passage, is not an unreasonable requirement; and, indeed without specific terms expressed in it, a railroad ticket is held to be an agreement between the carrier and the passenger for a continuous passage between the starting point and destination named in the ticket. So that the pivot of this case is the determination of whether or not under the circumstances evidenced by this record, the progress of this plaintiff as attempted by him, was in fact a continuous passage from Wooster to Bucyrus, as contemplated by the contract, and as embraced in that term, and as construed and /interpreted on that occasion by both the plaintiff and defendant.

I have not been able to find a single case that can be said to throw light directly into the face of the case at bar. The cases are very numerous, holding and properly holding, that where a railroad ticket provides for a continuous passage, the holder is not entitled as a matter of right to a stop-over at some intermediate point. And if the passenger voluntarily leaves the train and breaks the journey without the assent of the carrier, after the intermission which he has thus without the consent of the carrier created by discontinuing his journey, he cannot again resume it under the same contract. But the continuity of the passage must be broken by the holder of the ticket, and this, without the assent or fault of the carrier. For this doctrine we do not have to look beyond our own Supreme Court, and find it-broadly laid down in Hatton v. Railway Co. supra.

But each of the cases (and many of them, are to be found cited in Louisville & N. Ry. Co. v. Klyman, 108 Tenn. 304 [67 S. W. Rep. 472 ; 56 L R. A. 769; 91 Am. St. Rep. 755]) stands on its own facts; the doctrine applies no farther than the facts. And in each case it will be found that the holder of the ticket broke the journey, while the carrier was in the performance of the contract upon its part, and was demanding of the carrier without its consent, a piecemeal performance of the contract, which the carrier had at no time modified or violated. And in every instance the break in the journey had been made in intent and in fact and for a purpose on the part of the ticket holder, which makes it without doubt manifest that each demand to proceed to the destination named in the ticket, was not concerning the journey commenced under the'ticket, but was concerning a distinct and separate journey. In some instances the passenger left the train and went back to other stations on the same line, or proceeded to other towns not on the line, or left the train for the purpose of transacting business at the place where the journey was broken; but in every instance the intent of the ticket holder was not to proceed then to the destination named in the ticket, but to break the journey then and there, because of that which he deemed required the abandonment of that continuous passage.

The acts of corporations are followed by legal implication as are the acts of individuals. This contract with the defendant by this ticket, is subject to the same rules of construction and governed by them that are applicable to other contracts between individuals. And the parties to it are required to go no farther in discharge of it, than substantial compliance with its terms.

The general rule appears to be, that if a continuous passage necessitates a change of trains, it must be. continued on the next available train. Louisville & N. Ry. Co. v. Klyman, 108 Tenn. 304 [67 S. W. Rep. 472; 56 L. R. A. 769; 91 Am. St Rep. 755], Yet this rule is held to yield to an agreement to the contrary, or that which infers consent or amounts to consent that the contract be modified in that behalf.

It is conceded that plaintiff commenced his journey from Wooster to Bucyrus properly under the contract. But defendant claims that by the terms of the ticket, plaintiff was under obligation to take the next available train departing from Crestline to Bucyrus, after his arrival at Crestline, which was at 11:55 p. m.

Having commenced his journey on a proper train, and a delay and a change of trains at Crestline being necessary, in order that defendant have opportunity to carry plaintiff to Bucyrus, and thus comply with its contract, it became the duty of defendant to instruct plaintiff how and when it intended to comply with its agreement and what was required of him in that behalf.

While this is not an action to recover because of negligence,' and negligence as a ground of recovery has no place in the case, yet that no instruction was given by defendant becomes pertinent when connected with the facts appearing in the record, that plaintiff did not know that the first train, after his arrival at Crestline, departed for Bucyrus at 11:55 p. m. ; that he did not intentionally break the continuity of the passage. And because defendant, by failing to give him that information, might be deemed to have assented to such modification of the contract as would allow him to proceed on a train that to his knowledge was the first available train for that purpose — while this might not necessarily go to the extent of substantive and express interpretation of the contract by the defendant, it may be deemed to be a consent on defendant’s part, that plaintiff himself interpret the contract and modify its literal terms, by doing that which seemed under the circumstances required of him, in order to give defendant an opportunity to comply with the terms of the ticket, by that which was then in his view, an ordinary, usual and direct method of compliance.

The ticket did not inform him what to do next. No person informed him. And the circumstances and the acts and omissions of defendant did tell him that defendant did not, as to that contract, and as defendant at that time considered it, intend that the words “ continuous passage ” meant an uninterrupted transit from Wooster to Bucyrus.

It is true that the evidence does not show express modification of the contract by competent authority. But it would not seem that absence of evidence in such behalf, is of import in this controversy.

In discharging duties which defendant in good faith owed to plaintiff, or in neglecting to observe them, the agent at Wooster, and the conductor of the train which plaintiff boarded at Wooster,weré acting for the defendant.

If neglect .to perform a duty which defendant owed plaintiff «under the circumstances effected a modification of the contract, and was then in effect a consent, and that from which plaintiff might well infer consent, then the result of failure of defendant’s servants performs the same office as would consent or modification by defendant itself. If their acts or omission to act, being the acts of defendant, led plaintiff to depart from the strict letter of the contract, he had the right to get back to the contract in his way, if his way was a reasonable way.

Now, were the acts of defendant such as to indicate to plaintiff, as a man of ordinary judgment and prudence, and one desiring to substantially comply with the terms of his contract with defendant, that he might continue his journey, under the contract, on the 7:05 morning-train to Bucyrus. The ticket was sold to him at Wooster under such circumstances as well led him to believe that he could select that train at Wooster, as the one upon which to commence his trip,. The conductor of that train received the ticket, punched it, and thus giving it his in-dorsement, returned it to plaintiff. No instructions were given plaintiff as to how and when defendant intended to further comply with the contract, or what was required of plaintiff, that he might give defendant opportunity to make performance of it. Of all of which he could have been informed without additional trouble or expense to defendant, and which the relations of the parties and the circumstances'of the case required the defendant in good faith to do.

There is present in the recqrd no evidence of intention on plaintiff’s part to break the journey or abandon it. His sole object was to continue it. He transacted no business, did no act, entertained no purpose that would interfere with his continuous passage to Bucyrus, and was not aware that he was not in strict compliance with the agreement when he entered the train at Crestline for Bucyrus, or that another train in the meantime had passed which would have been available to him. His first delay had not arisen by any violation of the contract on his part. ITis failure to take the 11:55 train was not intentional, nor with knowledge that he could do so. And his ignorance of that fact was not assisted by the defendant, whose duty it was under the circumstances to inform him.

He did' nothing which indicated the remotest intention to break the continuity of his trip. He presented to the conductor the evidence that he had paid his fare from Wooster to Bucyrus, and all this within the time in which he might have commenced the journey between the points which defendant had contracted to carry him. And he was ejected from the train for the sole reason that he insisted that defendant comply with the terms of the ticket, as he under the circumstances understood them.

This ticket notified the conductor, who ejected plaintiff, that a contract had been entered into between plaintiff and defendant and that performance of its conditions had commenced. This being true when he, the conductor, undertook to determine the rights of the plaintiff under the contract, he must not make a wrong decision. He could not, without further Information, apply the rule laid down'in Shelton v. Railway Co. 29 Ohio St. 214, unless to do so was no mistake. It was not as if the ticket had been wrongfully taken up, as in that case, by another conductor, and plaintiff had demanded to be carried to Bucyrus without any ticket at all. And hence application of the naked rule, that a passenger without a ticket, who refused to pay his fare, must submit to ejection from the train, \yas as to this plaintiff, under the circumstances, application of it at defendant’s peril.

We think the facts measured by the contract and the law, should have gone to the jury, and that in arresting the evidence and in entering-judgment for defendant the common pleas was in error.

The judgment is therefore reversed.

DAY, J., concurs;

MOONEY, J., dissents.


author: SULLIVAN, J.

text:
    criminal law — jury.
    [Franklin (2nd) Circuit Court,
    February 15, 1904.]
    Sullivan, Wilson and Dustin, JJ.
    George T. Bartow v. State.
    Right of Accused to Jury Selected Under Law in Force When Prosecution Commenced.
    It is a violation oí the rights and liberty of a person accused of crime to place him on trial, against his objection, before a jury impaneled under an amenda-tory statute which was not in existence at the time of the commission of the alleged crime or at the commencement of the prosecution against him in the police court, when it appears that the police court bound him over to the grand jury which returned an indictment against him before the repeal of the old law and that he was held in the custody of the court under such indict'ment up to the time of trial. Entering a nolle prosequi to the indictment returned while the old law was in force and returning a new one -after its repeal, but without discharging the accused under the former indictment, will not remedy the situation.
    Samuel Hambleton, for plaintiff in error.
    E. L. Taylor, Jr., and A. T. Seymour, for defendant in error.
   SULLIVAN, J.

The plaintiff in error was indicted for embezzlement April 23, 1902. October 22, 1902, the grand jury returned another indictment for the same offense. January 3, 1903, the first indictment was nollied, and plaintiff was put upon trial in the court below on second indictment March 9, 1903. He was found'guilty as charged in the indictment. A motion for new trial was filed, which was overruled and he was sentenced* to the penitentiary for the period of one year.

On the day set for trial (March 9, 1903) the accused filed a challenge to the array on the ground that the crime with which he was charged was alleged to have been committed on February 19, 1902, and that on February —, 1902, prosecution for the offense was commenced against him in police court of the city of Columbus, and .on March ;1, 1902, he was bound over to appear before the grand jury, and that he had ever since the date above named been in the custody of the court.

That on September 30, 1902, the jury law that was in force when said alleged crime was committed was repealed by an act of the general assembly and an amended jury law was enacted for the appointment of a jury commission and the selection of jurors, and repealed the former jury law that existed at the time said alleged crime was committed.

That the grand jury that was drawn and impaneled returned the indictment in the case; and the petit jury selected and called to try the accused were each so selected, drawn and called under the act of September 30, 1902, in violation of the rights and liberty of the accused.. The facts stated in this motion were conceded to be true, except as to the rights and liberty of the accused being violated thereby.

The motion was overruled, and the accused put upon trial, to which action of the court the accused at the time excepted, and his exception was entered upon the record. The overruling of this motion is alleged as one of the grounds of error in the petition in error and also set forth in the motion for a new trial. The court erred in overruling this motion, and the accused was prejudiced thereby. Bach v. State, 38 Ohio St. 664.

There are no other errors prejudicial to plaintiff in error apparent upon the record and for the error alone stated it follows that the judgment must be reversed and cause remanded to be proceeded with according to law.