author: Caldwell, J.

text:
    (Eighth Circuit — Lorain Co, Ohio, Circuit Court
    May Term, 1897.)
    Before Hale, Marvin and Caldwell, .JJ.
    THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWYAY COMPANY v. THE CITY OF ELYRIA.

      Contract for use of street by city with railroad — Limit of power—
    It was not the intention of the legislature, by the statute which authorizes public authorities controlling streets and highways, to contract with railroad companies for the use of such streets and highways to a certain extent, that streets and highways should be abandoned and surrendered to railroads, and to deprive the public of the use of the same farther than was necessary.

      City holds streets in trust for public—

    Streets and highways are held in trust,and the officers having charge of them are trustees for the public and are exempt from liability because they are trustees only. The road system of the state is a part of the state.

      Same — Streets cannot be destroyed or abandoned by contract ivith railroad—
    Such trustees under the public policy of the state are not authorized to destroy a street in aDy way not necessary for the good of the public, aDd they can not abandon it except in the way pointed out by the statute for that purpose.

      Same — Such contracts are for use by railroad and public in. common—
    City authorities m their contract with a railroad company for the use of a street which can be used both by the railroad and .the public, can only grant to the railroad the use of the street in common with the public.

      Same — Construction of such contract — Such use as railroad “ deems necessary”—

    The grant of the use of a street by a city to a railroad “as such railroad should deem it necessary and expedient,” means such use as is reasonably necessary and expedient for the railroad, with due regard for the convenience of the public.

      Same — Use of street by railroad excluding public, by railroad’s failure to restore street — Title by limitation—
    A grant of the use of a street by city authorities to a railroad, under the statute authorizing contracts to that effect, is a grant of the use of the street in common with the public; and the fact that the street in question was unimproved and little used at the time; that the railroad made a cut in it and through a street crossing therein, and on such crossing erected fences on both sides of its tracks to prevent people from falling into such cut, which prevented the.use of such crossing by the public, without any other notice to the city or public that it claimed the exclusive use of such crossing, and its failure to restore the street, although continuing for more than twenty-one years, will not establish the claim by the railorad company to the exclusive use of such crossing by limitation.
   Caldwell, J.

This is an action brought to enjoin the city of Elyria from repairing the crossing at a point where the Lake Shore Railroad Company’s track crosses over North street in this city, and the whole matter is to be determined by two questions.

First: As to the contract made between the city and the railroad at the time the railroad was established, as to this street and others.

Second: Whether the railroad has gained a right to the exclusive use of its crossing by occupation.

The contract between the city and the railroad is evidenced by an ordinance and the acceptance of it. Th,at constitutes the contract,and the proper construction of that contract is the first question involved in this case, The ordinance reads:

“Be it ordained by the town council of the town of Elyria, that the Junction Railroad Company” (that is the predecessor,or at least one of them), ‘ ‘shall have the privilege of taking and using for its railroad so much of North,Hickory and Tremont streets in said town of Elyria as said company shalldeem necessary or expedient for the purpose of building its said railroad depot,shops, and all other purposes connected with said railroad, the right of using the materials on said streets for the purpose of building said road, and hereby giving and granting to said railroad company full power and authority over said streets to grade, drain and build its said road, and also the right of using its said road, depots, shops and other fixtures after the same shall be built”.

I do not understand from the argument of the counsel for the railroad company that this is a full and complete license to the railroad company to take any part of these three streets named that it shall deem necessary and expedient; that “deeming” not being limited at all. Bu.t the doctrine as to this North street crossing, is that it was reasonably necessary and expedient for the railroad company to have the exclusive use of that crossing, and that it being reasonably necessary, that the use it has taken and made of it is the necessary use, and that it is necessary it should be the exclusive use in contemplation of the necessities of the road; and that being so, that the entire right on that crossing is in the railroad company, and that the city has no right to restore the street and make it a crossing, and make it subject to two public uses, one as a common highway and the other as a railway.

Then the railroad says, if tbe court should hold, under the facts of this case and the facts that surround the crossing, that it was not necessary for the railroad at that time to take and hold the exclusive use of the same, and is not necessary now considering the interests of the public, •also of the citizens of the town and the public who use the high way, that if it should be held that the railroad company has not the exclusive use by reason of this contract,that then it has it by long use.

And it is a fact that for a great many years after the railroad was built, it was at a much lower grade than it is now, and there was a cut there, and that cut was not so restored that teams could very well pass over the railroad, if at *11. Foot passengers could go across there, and they could go on to the railroad tracks, or they could go on other parts of the •street or cross at this point. The evidence shows that is about the only crossing there was there for a long time — I do not remember distinctly, but we are safe in saying for •twenty-one years.

Now, the railroad company claims that by that means, if not by the first, it has the exclusive use to that crossing.

If the first ground is held against the railroad company, there is not much importance to the second; because, if the railroad under the contract did not take the exclusive use there, it was its duty at that time to restore the street to its former state of usefulness; and if it was not restored, itjis the fault of the railroad company,and the railroad failing to do its duty, it can not then say that because of its failure it’has got the exclusive right there; so that, unless the railroad holds it on the first ground, we see no ground on which it can very well hold it.

The railroad comes into equity, and a party is not favored in gaining rights by his own wrongs or its own neglect of duty in a court of equity.

At the time this ordinance was passed the state law was such that a railroad company and the public authorities ■ controlling the streets and highways of the city, could contract in regard to allowing the railroad the use of the public highways to a certain extent. And one proposition must be admitted by everyone ¡ 'that it was'not the intention on the part ■of the legislature that the public should be deprived from the street any more than necessary.

The streets and the highways are held in tiust; the officers having them in charge are trustees for the public, and they are exempt from liabilities because they are trustees, and because they are apart of the state, and the road system of the state is really a part of the state itself.

The trustees, under the public policy of the state, are not authorized to destroy a street in any way that is not necessary for the good of the public, and they are prohibited from in any way abandoning a street, except as the statute has pointed out that it may be done; that is the construction we think ought to be given to that statute.

The legislature, in passing a law allowing the authorities to contract with a railroad company, did not intend that the other law should be violated, and that the public authorities should unnecessarily giveaway the public use of the highway. We think the intent of the legislature in allowing the authorities of a city to contract with the railroad company in regard to the use of these streets only allowed .the city to contract so far as it was necessary for the railroad to use the streets; whenever we go beyond that, it i® equivalent to the authorities having charge of the streets abandoning them in some other way than is provided by law for abandoning public streets; in some other way than that provided by statute, which is to be done through the courts.

The ordinance formed the contract between the city and the railroad, and it is necessary to construe that contract that the railroad could use these streets so far only has it was necessary for the railroad to use them,and not so’ far as it should deem it necessary; because the city of Elyria had no power to contract beyond the limit the law placed upon it. That being true, if this crossing can be used by both the railroad and the public, then the city authorities could only grant to the railroad a use in common with the public traveling the highway.

What the railroad could deem necessary and expedient is that that is necessary and expedient.

We therefore think that the railroad took an interest in these streets so far as it was necessary for the purpose of its tracks, its depots, and its shops, and we are not called, upon to say what was necessary on any street or place except at the crossing in question, and that necessity is not limited to one track across the street, but to such tracks as are reasonably necessary in the business of the railroad. This crossing is situated very near the point where the railroad always has, and would like to continue to do a large part of its business here in this city, such as switching its cars, handling its freight, and matters of that kind; and therefore it isa crossing the railroad claims that is needed by the company’ to the exclusion of the public upon the road; it is needed for local business in this city. That must be controlled by the word “reasonable”; that is what was contemplated.

We cannot say, after hearing all that has been said in this case, and considering all the facts, and after going as counsel wished us to and seeing the situation, and seeing just what is upon the street, by way of buildings on North street, on both sides of this crossing, and the manner in which the railroad crosses, why this street may not be usecf by the railroad and at the same time be used by the public; and if so, that ought to be done.

As I have alrepdy said, it was not intended that this railroad should take anything away from the public beyond its absolute necessities, or their reasonable requirements.

It would be more convenient and better for the railroad company if it could have the exclusive use of any crossing— of any crossing upon any highway. It would' lessen the danger, it would lessen the hazards of the company, it would make it safer for the public to travel; but at the same time, it would greatly inconvenience the public who travel the highway.

Therefore, in all these cases, convenience and necessity means that convenience and necessity which is reasonable without giving up, unnecessarily, any of the rights of the company, and at the same time having due regard for the convenience of the public.

' It is like any track, any railroad track in the city — a street railroad track, in one sense, is the exclusive right of way of the railroad company; but in another sense, and in a larger sense, it is still a use that is for the public generally, and the public must yield its rights only so far as is necessary to give the railroad company a reasonable opportunity to run its cars, and that is true in regard to all these public highways. This being so, we cannot see why the road may not be crossed by the railroad withoul excluding the public from the highway.

Therefore, looking at it in this way, and we think this is the reasonable view of the matter, we do not think the railroad company ought to be permitted to stop the city from improving that crossing if it wants to do it. While it is the duty of the railroad company to restore the crossing, we do not think the railroad ought to have an injunction restraining the city from making the crossing.

In regard to the second claim, if the railroad did not get the exclusive use in that crossing, if it did not become the absolute proprietor, and the one use is that of the railroad company, then the duty of the railroad company, when it put its tracks across the street, was to restore it to its former state of usefulness. When the railroad was first constructed,its grade was some four feet lower than the street, and the street being but then little used, the company did not restore the street, but constructed a fence across the street. This fence was necessary to prevent persons in the night lime from falling or driving into the cut made by the railroad. The road was not restored for more than twenty-one years, after which the railroad raised its tracks to about the same grade as the street. During none of this time was the public entirely excluded from the crossing. Persons on the street crossed the tracks.

JB. 6r. Johnson and IP. J. Jerome, for Plaintiff.

W. W. Boynton and Lee Stroup, for Defendant.

The railroad had none of this time the exclusive possession; no further than before stated was the public excluded, and the street was, during that time, so little used that the public would not suspect that the railroad intended to make a claim of exclusive use from what it did.

The use was in common, and the railroad never gave any notice to the city, other than failing to restore the crossing, and building the fence, of its intention to exclude its co-user, or to forever deny the right of the public to the crossing.

As a matter of fact, it never had exclusive use of the crossing.

Under the facts, if the possession had been exclusive, we do not think the railroad would be entitled to the relief it asks in this case.

We dismiss the plaintiff’s petition.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit — Huron Co, Ohio, Circuit Court
    Jan’y Term, 1897.)
    Before Haynes, ScribDer and King, J. J.
    THE WHEELING AND LAKE ERIE RAILWAY COMPANY v. VALENTINE FRIES AND THE WHEELING AND LAKE ERIE RAILROAD COMPANY.

      Possession of land by railroad company— Verbal contract with owner as to compensation — Failure of promise — Suit for compensation — Statute of Limitations.

    1. Where a railroad company has taken possession of land for its right of way, and incorporated it as part of its permanent railroad track, with the verbal consent of the owner, on condition of compensation verbally promised but refused and not performed, and without appropriation proceedings and without any agreement in writing with the owner, the owner may. either bring his action in the probate court to compel appropriation under sec. 6488, Rev. Stat., within twenty-one years from the time of such occupation by the R. R. Co., or he may tender conveyance to the R. R. Co. and bring an action for compensation in the Common Pleas within six years from the tender of the deed.

      Same — In an action for compensation in common pleas, Damages to remaining land not recoverable—

    If the owner choses his remedy by action for compensation in the common pleas, he can oniy recover compensation for the land taken, and no compensation for damage to his remaining land. Damages to remaining land can only be recovered by action in probate court to compel appropriation.

      Same — Compensation—Value to be taken at time of tender of deed.

    To fix the compensation, the value of the land occupied should be taken as of the time when the deed was tendered.
   Haynes, J.

The original petition in error in this case was filed in this is court for the purpose of reversing the judgment of the court of common pleas in a certain case pending in that court wherein Valentine Fries was plaintiff, and The Wheeling and Lake Erie Rail way Company, and also The Wheeling and Lake Erie Railroad Company now defendants.

After the case was passed upon by the circuit court, it was taken to the supreme court, and the judgment of the circuit court was reversed by the supreme court and the cause remanded to this court for further proceedings, see 37 Weekly Law Bulletin, 230.

When the case was in this court before the judgment of the common pleas was reversed because it refused to sustain the demurrer to the petition of the plaintiff, the point of law being that the action was barred by the statute of limitations.

The other questions that were raised in the case, this court did not pass upon, and the supreme court, in reversing the case, passed only upon the question passed upon by this court, and remanded the case here with instructions to this court to pass upon the remaining errors assigned,in the case.

The remaining errors are the ones,that are before us and upon which we are called upon to pass.

The action, as it will be remembered, was brought by Fries against the Railway Company for that it had taken possession of about three and one half acres of land of a certain farm in this county,for railroad purposes, having entered upon the land without any grant or conveyance from, or agreement in writing with the owners thereof, with only verbal consent of plaintiff, “on condition of compensation never performed;” so that the entry, whatever it was, upon the land was never made under any agreement in writing, nor under any proceeding for the appropriation of the property, but was made, as the supreme court say, with the consent of the party, but not in writing.

The supieme court have made two points in the case that should be referred to by us in entering upon the decision of this case. In the first place, the supreme court discussed the question as to the remedy which the party was entitled to, and in doing that, they discussed section 6448, and also section 6449, which provide that in certain cases, a party whose land has been entered upon by a railway company without the consent of the owner, in writing, may be compelled to proceed and appropriate the property by regular appropriation proceedings.

In passing upon that, they say, after discussing it at considerable length (37 Weekly Law Bulletin, 233):

“If the conclusions hereinbefore stated are correct, the plaintiff had an election to proceed under the statute and compel an appropriation, or, accepting the acts of the company as an appropriation, sue for compensation. If he resorted to the former remedy, the inquiry might include as well damages to remaining lands as compensation for the land taken, and would be conducted in the probate court, inasmuch as that court alone, (save under exceptional conditions named in the statute), has jurisdiction in the appropriation proceedings. If, however, he preferred the latter remedy,his action might be instituted,as it was,in the common pleas. But the remedy in the latter court could go no farther than compensation for land actually taken. To broaden the inquiry in such case into an assessment for other lands would, practically, make an appropriation case of it, and we think it clear that the statute implies that jurisdiction to entertain such inquiry shall, (save in the exceptional instances), be confined to the probate court. ”

It will be observed that they clearly decide there, that compensation must be for land actually taken, which here was three acres and a fraction of an acre. And further the court say:

“Having a choice of remedies, the plaintiff would not be held to have elected until some steps were taken looking to an enforcement of the particular remedy chosen.
“The defendant’s argument upon the statute of limitations seems to proceed upon the theory that the plaintiff’s consent to the entry of the company was, of itself, an election to' proceed for compensation only. We cannot so regard it. It is mere assumption at best, unreasonable and illiberal. We should not presume,in the absence of proof tending to establish it, that a party has selected his least valuable alternative. But. aside from this, the assumption is utterly inconsistent with the conclusion already announced that the plaintiff had a choice of remedies, since it makes the very act which clothes him with a right to a choice of two remedies, determine conclusively that he has but one.
“It is not important to consider here what would amount to an election, though we would suppose that it should be some unequivocal act not consistent with any other conclusion.
“Therefore, if the six years’ limitation applies to the remedy of compensation (and we do not find it necessary to determine whether it does or not), a demurrer setting up that statute would not be well taken unless it appeared by the pleading that six years had elapsed after election made and before suit. And applying that conclusion to the plaintiff’s second amended petition, it does not appear to be open to the objection. Hence, the demurrer to that pleading was properly overruled’’.

It will be observed here that they decide that the statute of limitations does not commence to run until election is made, and in as much as it did not appear upon the face of the petition that that was more than six years before the commencement of the suit, even assuming that the circuit court had found that the limitation was six years,that the period of limitation had not expired. With this light before us, we must proceed to the decision of the remaining errors assigned, and they are:

1. That the court erred in sustaining the demurrer^to the second and third offenses in the amended answer to the second amended petition.

Said court erred in the admission of evidence offered by the plaintiff.

Said court erred in the rejection of evidence offered by the defendant.

Said court erred in its charge to the jury.

Said court erred in refusing to charge the jury as requested by the defendant.

Said court erred in overruling the motion for a new trial.

Said court erred in overruling the motion of the defendant to arrest the judgment.

First, in regard to sustaining the demurrer: The second amended petition having been filed, setting up various facts as a first defense, and then for a second defense:

‘ ‘ This defendant says that the cause of action in said second amended petition set forth, accrued in the year 1880, and that said cause of action did not accrue within six years next before this action was begnn.”

For a third defense:

“This defendant says that the cause of action in said second amended petition set forth, accrued in the year 1880; and that said cause of action did not accrue within ten years next before said second amended petition was filed.”

If it were necessary, I think we should hold to our original position until the supreme court has decided one way or the other as to whether the six years’ statute applies or not —we should hold to our original decision that the six years’ statute applies to this case.

Suffice it to say that the pleadings show this: That the defendant railway company took possession of the land,succeeding the railroad company, some time in the year 1886.

Subsequently to that time, but what time is not stated,the plaintiff, Fries, tendered, or caused to be tendered to the railway company, a deed of the premises, and demanded payment for the same.

Suit was commenced in 1889, so that in truth and in fact, upon these pleadings, it is very evident that the tender of the deed was not made until after 1886, and consequently was made within six years next preceding the commencement of the action.

So if we hold that the six years’ statute of limitations was the true statute to apply, upon that state of facts, the suit would not be barred, because it was brought within six years from the tendering of the deed.

I am unable to see why we should not look to the petition for the facts in the case. It is true, the demurrer admits the facts as stated in the answer, and this statute is pleaded in bar to the action; that the general rule is that the demurrer to the answer searches the record,

I am unable to see why that should not apply to a case of this kind, so that, when this answer says the cause of action arose in the year 1880, I do not see why we cannot look back to the petition to see when the cause of action did arise.

In doing so, we find it arose within six years prior to the commencement of the suit; so that we are of the opinion that the court did not err in sustaining the demurrer to these defenses.

It was insisted here', among other things, that the court had erred in refusing to admit evidence of a certain written contract. It was not pleaded, tbe plaintiff having averred that the land had been entered with verbal consent,or consent not in writing, The defendant,for the purpose of sustaining the issue in regard to that, offered a certain contract, or attempted to offer it. That contract is not before us; it was not incorporated into the bill of exceptions. We do not know what was in it, except from remarks of counsel in regard to the matter. From the bill of exceptions it appears that a witness by the name of Perrin was put upon the witness stand, who at one time had something to do with obtaining the right of way across the premises, and counsel proceeded to inquire of him in regard to whether or not he had received from Brown a paper; and it appears from the testimony that he did obtain some paper from Brown, and the defendant company produced the paper and offered to show that John Brown authorized Caleb Brown to execute the paper, or sign the paper for him, saying, in substance, that he could make a contract with the company for the land.

The statute of frauds provides that the authority to sign a contract in regard to the sale of land must itself be the writing; so that, so far as John Brown is concerned, there is no legal evidence to show that he ever consented to this contract in any manner or form, and the only paper they had was simply that signed by Caleb Brown, a part-owner of the property.

It will be sufficient, however, in passing upon this point, to say that so long as that paper itself is not before this court, we are unable to say whether it was relevant to the issue or not; and for that reason we should refuse to reverse the action of the court in refusing to admit it.

But even on the assumption that it was signed by Caleb Brown, and in some way related to the possession of this property, still, we hold that, under the issues joined here, it was irrelevant matter, and was properly ruled out by the court.

Now, that brings us to the main question in the case. and one to which we have given a good deal of thought; and that is in regard to the time — the time when this action accrued; the time at which the evidence in regard to value should be limited.

It was held by the common pleas court that the cause of action arose in 1880, at the time the railroad company went into possession of the property; and the decision of the circuit court heretofore made, was based upon that assumption. The supreme court, however, has laid down a rule that we think is substantially different from that assumed by the circuit court upon the former hearing.

They have held, as we understand the decision, that the cause of action did not accrue until the tendering of the deed.

It seems to us that,if the cause of action arose at the time the deed was tendered, that the evidence must be confined, in regard to the value of the land, to that date — the date when the cause of action accrued, and that it cannot antedate it.

Some light may be thrown on this case — I think a great deal of light, is thrown upon it- — by the case of Railway Company against O’Harra, found in the 50 Ohio St., at page 667. That is one of a series of cases that arose in Mahoning county, at Youngstown. It is a case where a lady — decedent in the case — owned some property;’ she owned a lot in town, and some property outside the city limits. The railway company, with the consent of the public authorities, built their railroad along the street in front|of the property, and, as it was claimed, to the great injury of the property itself. The railway company seemed to have used the street for some time before the action was brought. Meanwhile, the lady herself died,and O’Harra was appointed administrator of her estate, and thereupon he brought suit against the railway company in an action at law, in the court of common pleas,to recover for damages which, as he claimed,. accrued to the property by reason of the interruption-to the right of way, or ingress and egress from the property; and he also brought suit for the value of the real estate that belonged to the plaintiff lying in the street,subject, of course, to the easement of the public in using it as a road.

The case went to trial, and finally came up before the supreme court, and the supreme court passed upon the questions that arose there.

It was contended upon the one side that, after the railroad company had entered upon the land, the right of the party to recover the value of that land was a chose in action which vested in the administrator upon the death of the owner, and thereafter the administrator was the party to sue for the full value.

The contention upon the other side was, that the title to the land remained in the lady herself until Per death, although the railroad company had gone into possession,and upon her death vested in her heirs at law, and thát the heirs were the proper parties to bring suit.

The supreme court say, in regard to that (I read from page 678):

“It seems to be settled by the previous decisions of this court that the wrongful taking of land by a railroad company for a right of way, does not divest the title of the owner, and reduce his remedy to a mere claim for compensation and damages. He continues the legal owner of the land, and has the right to recover it in any period short of twenty-one years from the taking. Railroad Company v. Robbins, 35 Ohio St., 483; Warner v. Tanner, 38 Ohio St., 120; Railroad v. O’Harra, 48 Ohio St., 343; Railroad v. Perkins, 49 Ohio St., 326-333; and it necessarily follows that at his death, his title to the land, with the right of recovery, as well as the right to compel the company to condemn and pay for the land under section 6448, Revised Statutes, descends to his heir, and not to his administrator. Hence," so far as the administrator sought to recover for any part of the land taken, included in the highway, the right of action was in the heir, and not in him, and he had no right to sue therefor. And the same is true as to any compensation sought for the taking of the easement of the decedent in the highway as a means of ingress and egress to her lands. An easement of this kind belongs to the land, is a part of the realty, and on the death of the owner passes with the land to his heir. The administrator cannot recover the land, nor compel compensation to be made, for, as shown in Railway Company v. Perkins, this can only be done by the “owner” of the property taken. But as to the damage which accrued in the lifetime of the decedent from the wrongful use made of her lands, the interruption of her easement, and the consequential injuries to her other lands, and for which she could have maintained a personal action, the case is different. Being choses in action, the right to recover the same passed, at her death, to the personal representative as a part of her personal estate; and could only be recovered by the administrator within the time limited for the commencement of such actions, which is four years. It therefore appears, as we think, that the court erred in admitting any evidence under the petition, for the reason that the right to recover compensation for the taking of the highway and her easement therein, was'in the heir, and not in the administrator; and the right to recover the damages that had been done to her property in her lifetime, was barred by the statute of limitations, pleaded in the answer; and, of course, he could recover nothing for damages of any kind to the land that accrued subsequently to the death of the decedent,for the right to such damages is in the owner of the land. ”

Taking this ease and the decision of the supreme court in the case at bar, and it establishes this fact- — that this property belonged to Mr. Fries up to the time that he tendered the deed, and in tendering the deed, he elected to hold the railroad company for that land, and to receive for it the compensation which was due him for the value of the land; and by that election his cause of action arose, and he had the right to bring and maintain his suit; but we are unable, as I have already stated, to see why, if that be the case, (and we have no doubt about the correctness of that conclusion), damages should not be awarded of the date when the title to the property passed; that is, for the value of the land to Fries.

Now, that brings us to the question of the conduct of the trial that we are to pass upon, arising upon the admission of evidence, and the charge of the court.

Counsel proceeded in the trial of the case; to offer testimony as to the value of the land when the railroad company' went into possession, in the year 1880, and the whole testimony was with reference to that time, so far as the time was concerned. He offered testimony tending to show the value of the three acres and the fractional acre; and he offered testimony tending to show injury to the remainder of the farm by reason of taking and using the land for railroad purposes. This was done over objection of counsel for the defense. We do not find any testimony showing the value of the land at the time the deed was delivered.

There is no evidence tending to show when the deed was offered, that we can find; nor is there any evidence to show the value of the land at that time. I make that remark in passing, in view of the suggestion made by counsel in his brief in regard to a remittitur; if there is any evidence of that character, it can be pointed out to us, and we shall be glad to consider it.

If we are correct in the conclusion that we have already stated, in regard to the time when the damages should be assessed or proven, then it follows that all the evidence that was admitted by the court, of that substance, was erroneous, in that it was offered and directed to a point of time prior to the time when the cause of action accrued.

The evidence being offered, and being before the jury, the court proceeded to charge the jury; but first, a certain request was made by the counsel on behalf of the railway company:

“Thereupon the defendant,, The Wheeling and Lake Erie Railway Company requested the court to give the -jury the following charge: ‘In this action, the plaintiff is not entitled to recover damages to land not taken by the railroad company, but is restricted to compensation for land taken. ’ This requestJhe court refused to give to the jury,to which refusal of the court the said defendant, by its counsel, then and there excepted,,

That request is in strict accordance with the decision of the supreme court as rendered a few weeks ago in this case. The court erred,therefore, in refusing to give it. The said railway company further requested the court to charge the jury:

“If the jury find in this action that the plaintiff is entitled to compensation for land taken by the railroad company, the measure of that compensation is the value of the land at the present time. ”

That request the court refused to give, and the court was right in that, if our views are right. The value should have been of the time the deed was tendered- — -when the cause of action arose.

“3. If the jury shall find that the railroad company entered upon the land with the consent of its owners, the plaintiff is not entitled to damages which accrued previous to March 4, 1880, the date of the sheriff’s deed to the plaintiff. ”

This request the court gave to the jury.

The next request (the fourth), was in regard to the passing of the title We agree with that. I will read the fourth request:

“If the jury shall find that the railroad company took the land with the consent of its owners, the remedy of the owners is by suit to recover compensation, which is a chose in action belonging to such owners and does not pass to a subsequent purchaser at sheriff’s sale.”

The court below refused to give the fourth request, and that was correct, according to the decision of the supreme court, as we understand it.

“5. The burden of proof, is upon the plaintiff to show that the land was taken by the railroad company without any equitable title thereto.”

That the court refused to give. We see no error in that ruling.

The sixth request is in regard to possession, and is of no materiality. It was given to the jury.

The court, after stating the facts in the case to the jury, stated the law briefly:

“Should your verdict be for the plaintiff, he will be entitled to the fuli value of the 3.56-100 acres of land at the time it was taken — March 4, 1880, with interest thereon, up to October 30, 1893; also to any damage that you may find resulted to the balance of said tract of land by reason of the entry and use of said strip for such purposes and its use, as shown by the evidence; but such damage to be considered by you, must be real and immediate — not merely imaginary, or such as may, by possibility, result therefrom. ”

The court erred, as the supreme court say, practically, in charging that they might find any damage “which you find resulted to the balance of said tract of land by reason of the entry and use of said strip for such purpose.”

In regard to the damages, there can be no question, after reading the evidence in the case, that, as a matter of fact, the jury did take into consideration the damages resulting to the balance of the farm over and above the value of the land taken. The presumption of law would be that they did; the presumption of law would be that, that part of the charge being erroneous, it was manifestly injurious to the defendant, and if that be true, the judgment should be reversed. But it is manifest that those damages must have entered into the consideration of the jury and formed a part of the verdict.

We think the court erred in refusing to set aside the verdict, first, on the ground that it was contrary to law, and for the further reason that the court proceeded upon the wrong theory id trying the case; second, because the damages were excessive; they were excessive because the damages that were included arose out of the testimony that was illegally permitted to go to the jury.

Swayne, Hayes & Tyler, for Plaintiffs in Error.

Stewart & Rowley, for Defendants in Error.

This, we believe, substantially covers all the points of the case. It necessarily follows, from the decision of the supreme court, that the case must be reversed.

Counsel said something in regard to remittitur. We would very gladly fix the amount that would be satisfactory if we could do so upon the testimony; but the testimony shows that the bare land itself was worth from $100 to $125 per acre, but that there had been a partial fall in price between the time when it is stated that the land was worth that sum and the commencement of the suit. The verdict was about $2,900.

We do not find ourselves possessed of any sufficient information as to the value at the time the deed was tendered to enable us to fix the amount. The judgment of the court of common pleas will therefore be reversed, the verdict set aside and the cause remanded for a new trial.


author: SOEIBNEE, J.

text:
    (Sixth Circruit — Lucas Co, O, Circuit Court
    January Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    EDGAR HUIDEKOPER v. LOUISA H. PERRY, et al.

      Equitable conversion of realty into personalty in cases of testamentary disposition of real property — When doctrine applies.

    The doctrine of equitable conversion of realty into personalty, in cases of testamentary disposition of real property, appiles where the will directs the executors to convert the realty into money' and distribute the proceeds, without leaving any discretion with them whether to sell or not. Held, therefore, that a provision in a will as follows:
    “Further, should I not while living dispose of my Toledo property, I wish that my executors shall dispose of it, investing the net proceeds thereof, the same to be placed in the hands of .Anna ¡J. Huidekoper, trustee, and be devoted to beneovlent purposes. To her I will give full directions concerning it.
    “Fifth. (And this paragraph should be read in connection with the former :) I authorize my executors, or the survivor of them to sell or convey as opportunity offers, my real estate in the city of Toledo, Ohio, or any I may acquire in other states.”
    Such will does not contain such an imperative direction to sell as to make the doctrine of equitable conversion applicable to this case.
   SOEIBNEE, J.

In briefly stating the facts of this case, I shall avail ray-self largely of the facts as set forth in the brief of counsel for plaintiff in error. The action in the court below involved the construction of the will of Frederick Huidekoper, late a resident of Pennsylvania. The plaintiff below — defendant in error here — the daughter of the testator, filed her petition to quiet title to certain property located in Toledo, under section 5779 of the Revised Statutes alleging possession through her tenants. One of the defendants below, Edgar Huidekoper, plaintiff in error here and executor under the will, filed his answer. To his answer plaintiff filed a reply, admitting all the facts alleged in the answer, but claiming that the devise in the will, of the Toledo property, for benevolent purposes, was void, for two reasons: First, for uncertainty; and, second, because the testator did not survive the making of the will for a period of one year, as required by sec. 5915 of the Revised Statutes of Ohio.

To the reply the defendant demurred. The court below overruled the demurrer, and granted the defendant leave to file an amended answer; to which the plaintiff demurred, and the court sustained the demurrer and rendered judgment for the plaintiff.»

From the amended answer it appears that the testator died on the 16th of May, 1892, having been a resident of Crawford county, state of Pennsylvania, where his will was, admitted to probate and letters testamentary issued to ' bis daughter and to the defendant; that the widow of the testator is still living, but that his daughter, Anna Huidekoper, died in September, 1893, leaving the answering defendant sole surviving executor of the will. The answer also sets out the will at length. It further sets out three acts of the legislature of Pennsylvania, the first of which corresponds to sec. 5915 of the Rev. Stats, of Ohio, except that instead of requiring a testator to survive the making of the will one year, it requires but one calendar month in order to render charitable bequests válid.

Sec. 5915 Revised Statutes of Ohio, the true effect and construction of which is involved in the consideration of this controversy, is as follows:

“If any testator die, leaving issue of his body, oran adopted child, living, or legal representatives of either, and the will of such testator give, devise or bequeath the estate of such testator, or any part thereof, to any benevolent, religious, educational or charitable purpose, or to this state or to any other state or country, or to any county, city, village, or other corporation or association in this or any other state or country, or to any person in trust for any such purposes, or municipalities, corporations, or associations, whether such trust appear on the face of the instrument making such gift, devise or bequest, or not; such will as to such gift, devise or bequest, shall be invalid unless such will shall have been executed according to law at least one year prior to the decease of such testator,”

It will be observed that according to the facts shown in this case in the record, the testator executed his will on the 29th day of October, 1891. He died on the 16th of May, 1892, which, of course, was within the period of one' year from the date of the execution of the will. The provisions of the will, so far as they appear to be material here, are as follows:

“1. After the death of my1 wife I wish that my property, with the exceptions hereinafter mentioned, shall be equally divided between my children.
“2. Further,should I not while living dispose of my Toledo property,I wish that my executors shall dispose of it,investing the net proceeds thereof, the same to be placed in the hands of Anna Huidekoper, trustee, and be devoted to benevolent purposes. To her I will give full directions concerning it.
“3, Any property not specifically disposed of in the foregoing will shall, if no already invested, be put into a productive shape, and after the wants of the estate have been abundantly provided for, any surplus income shall be divided into three equal parts and given to my wife and each of my daughters.
“4. I appoint as executors of this my last will and testament, my nephew Edgar Huidekoper, and my daughter,Anna J. Huidekoper,and hereby authorize them,or the survivor of them in case either of them shall be unable to perform the duties of executor, then the remaining party to exercise all powers needed in the execution of this trust, not only the power of settling and conveying property, but also to compromise claims and make adjustments in- the collection of securities when they or the acting party may deem the same advisable and for the benefit of those interested in the proceeds.
“5. I authorize my executors, or the survivor of them, to sell or convey, as opportunity offers, my real estate.in the city of Toledo,Ohio, or any that I may acquire in any other state. ”

The provisions of the statutes of Pennsylvania bearing upon the questions here in controversy, are given, in substance, in the brief, but are copied literally into the answ.er. filed in the case by the surviving executor,. They are as follows: ' '

“Defendant further says that on the 26th day of April, A. D. 1855, the legislature of the state of Pennsylvania passed a law of which the following is a copy:
‘“No estate,real or personal,shall hereafter be bequeathed, devised or conveyed to any body politic, or. to any person, in trust for religious or charitable purposes, excépt the same be done by deed or will, attested by two creditable, and at the same time disinterested witnesses, at least one calendar month before the decease of the testator or alienor; and all disposition of property contrary hereto, shall be void and go to the residuary legatee or devisee, next of kin or heirs, according to law; provided that any disposition of property within said period, bona fide made for a valuable consideration, shall not be hereby avoided.’
“That on the 4th day of June,1879,the legislature of the state of Pennsylvania passed a law,of which the following is a copy:
‘“Every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. Unless a contrary intention shall appear by the will,such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law,or otherwise incapable of taking effect, shall be included in the residuary devise, if any, contained in such will.’
“That on the 9th day of May, A. D. 1889, the legislature of Pennsylvania passed a law of which the following is a copy:
“‘No disposition of property heretofore or hereafter made for any religious or charitable use shall fail for want of a trustee or by reason of the object ceasing or depending upon the discretion of a last trustee, or being given in perpetuity, or in excess of the annual value limited by law; but it shall be the duty of any court having equity jurisdiction in the proper county, to supply a trustee, and by its decrees to carry into effect the intention of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law or equity.’’’

And upon this state of facts and the terms of the will, a copy of which is set out in the answer, it ib claimed on the part of the plaintiff in error, the executor of the last will and testament of the decedent, that the defendant should have judgment of the court upon the question as to the true construction of this will in so far as the Toledo property is concerned, and he prays that the claim made by the plaintiff in the proceeding may by the decree of the court be declared invalid and of no effect, “and that plaintiff be perpetually enjoined from making any claim to said real estate; and that all such claims be quieted, and that this defendant be vested with power of sale of and entitled to the possession of said real estate.”

One of the principal grounds of contention in this case is this: It is claimed on the part of the plaintiff in error, the executor of the last will and testament, that by the terms of this will the doctrine of equitable conversion is applied, so that by force of that doctrine the property disposed of by the will is not to be regarded as real estate,governed and controlled by the laws of Ohio, but is to be treated and regarded as personalty, which, of course, follows the domicil of the testator, and is to be treated, regarded and disposed of according to the laws of the state of Pennsylania, where the testator resided, and where his last will and testament was made and admitted to probate.

The doctrine of equitable conversion and its application in cases of testamentary dispositions of property is stated very distinctly in the case of Collier v. Grimesey, et al., 36 Ohio St. 17; and the court there enunciates the great, well-established, well-understood doctrines of courts of equity applicable to such cases. The provision of the will under review by the court was in these words:

“I direct that when my son Samuel Painter shall arive at the age of twenty-one years, that the above-mention real estate shall be soald provided that my wife’s widowhood shall have secth before that time,” (this clause of the will is printed here literally as it was written), “and to be divided between them as follows: Seth, Samuel and Oris two shares each and the rest of my children one share each,”

The court say of this disposition of the property that the direction to sell the property is imperative, and perhaps I ought to state that the form of this language should be carefully regarded and considered in giving a proper construction and effect to the ruling of the court. The court says that this language which I have just read from the will itself, is imperative. There is no discretion vested in them whether the land shall be sold or not. The discretion is that the real estate shall be sold and the proceeds of the real estate divided among the persons designated. In the syllabus, the court declare, in the third paragraph, that “under the direction to sell, the land is to be regarded, for the purposes of distribution, as converted into money; and the children and grandchildren took, at the death of the testator, a vested interest in the proceeds of the sale.”

The all-important question in this case is, whether or not the doctrines of the court of equity, as declared in the case to which I have just referred, shall apply to a case like the present, where, by the provisions of the will, the executor is authorized to sell, and to pay the proceeds of the sale to a trustee who may dispose of it for benevolent purposes according to directions which are to be furnished to her by the testator. Now,it would be well to recur for a moment to the two provisions of the will upon which this question depends:

“Further, should I not while living dispose of my Toledo property, I wish that my executors shall dispose of it,investing-the net proceeds thereof, the same to be placed in the hands of Anna J. Huidekoper, trustee, and be devoted, to benevolent purposes. To her I will give full directions concerning it.
“Fifth.” (And this paragraph should be read in connection with the former:) “I authorize my executors, or the survivor of them, to sell or convey, as opportunity offers,my real estate is the city of Toledo, Ohio, or any I may acquire in other states. ”

First he declares that should he not, while living, dispose of his Toledo property, that his executors shall dispose of it, “investing the net proceeds thereof, the same to beplaced in the hands of Anna J. Huidekoper, trustee, and to be devoted to benevolent purposs. To her I will give full directions concerning it.” Then he further says, as I have read: “I authorize my executors, or the survivor of them, to sell or convey,as opportunity offers, my real estate in the city of Toledo,Ohio,or any I may acquire in any other state.”

We fail to see by these provisions of the will that there is an imperative provision made for the sale of this property. The testator in the first place expresses a wish, in the event that he has not disposed of the property during his life time, that his executors shall dispose of it then and invest the proceeds, and place them in the hands of the trustee named to be devoted to benevolent purposes. That is supplemented with a direction, or a provision, declaring that he confers authority upon the executors to sell or convey as opportunity offers, his real estate in the city of Toledo,Ohio, or any that he may acquire in any other state.

It is a matter of quite serious doubt in our minds as to whether or not under these provisions of the will the doctrine of equitable conversion applies to this case. But assuming that the language is sufficiently clear and express to give that effect to it, let us look for a moment to a case in the 39 Ohio State Reports, which seems to have a very important bearing upon this case. The case is Patton v. Patton, 39 Ohio St. 590. In that case the will, the true construction of which was being sought for by the parties and considered by the court,is set forth in extenso, or appears to be; and by that will there were, in the first place, the provisions that the funeral expenses of the testator shall be duly paid, and then follows:

“2d. All the remainder of my personal estate, including moneys, rights in action, household goods and goods of every kind, and chattels, I give and bequeathe to my wife Betsey Ann Patton, during her natural life, and at her death to my grandson, Joseph Frank Patton.
“3d. I give and devise to my wife,Betsey Ann Patton,all my real estate during her natural life, and at her death I give and devise the same to my grandson, Joseph Frank Patton.
“4th. After the death of my wife, and during the minority of my grandson, I give to my executor hereinafter named, or to his successors in office, the possession and control of my said real estate, and direct that he apply the income from said real estate to the proper support, maintenance and education of my said grandson, or so much thereof as may be necessary for such purpose, and that the residue, (if any), be safely invested for his benefit by said executor or the lawful guardian of said grandson.

And here comes the important part of it:

“5th. If my said grandson, Joseph Frank Patton, die leaving no child or children, then I direct my said executor, or his successor, to sell all my real estate, in such manner and upon such terms as he shall deem best, and to execute proper conveyance thereof, and the proceeds of such sale , also moneys and other properties devised by me to my said grandson, after payment of costs and expenses of administration, I direct to be paid share and share alike, to the Board of Home Missions of the Presbyterian Church in the United States of America, whose office is now in New York city, and to Board of Foreign Missions of the Presbyterian Church in the United States of America, whose office is nowin New York city, to aid in carrying on the work of foreign and domestic missions. But if my said grandson die leaving a child or children, tüen I give and bequeathe to said child or children all moneys and property hereinbefore mentioned and devised, such child or children to take said real estate in fee simple.”

And he then appoints an executor with authority to make public or private sale of his personal property for the payment of debts.

The statement of the case says:

“This is a civil action brought by James H.Patton,a brother of the testator, Joseph D. Patton, for the partition of the real estate of which the testator died seized, among his brothers and sisters and their legal representatives, all of whom are parties, and who are alleged to be the owners thereof in fee simple. All persons claiming an interest in the real estate are also made defendnts. The Boards of Home and Foreign Missions deny the title of the brothers and sisters of the testator, and claim the entire beneficial interest in the lands under the fifth item of the will. Augusta A. Curtis and Jennie Hill claim the estate as the heirs and next of kin of Joseph Frank Patton. The executor of Joseph I). Patton,the testator, claims theright to sell the estate under the fifth item of the will, and to pay the proceeds to whomsoever is entitled.”

It was claimed in the argument by counsel for Joseph Frank Patton, that the estate, both real and personal—

“Ts now property undisposed of by the will of Joseph D. Patton; that it became intestate property at the time of the death of Joseph Frank Patton without children, and not before; that the death of Frank Patton without child or children, is a contingency unprovided for in the will. It is true that it was provided for, but the provision being void (the tlfth clause of the will), it is the same in law as being unprovided for, and then, at that time, this propety becomes intestate property and descends onto the heirs at law of the testator, for it cannot be claimed that this property was intestate property at any time during the life of Joseph Frank Patton. ”

Counsel for Joseph D. Patton’s executor claimed this:

“The language of the will is imperative: ‘I direct my said executor or his successor, to sell all my real estate, etc.’ The only discretion given isas to the manner and terms of sale. The clear purpose is to convert the real estate into money and to blend it with the other personal estate for further administration, and after the payment of costs and expenses of such administration, to distribute it as directed.”

This is', as I understand it, the argument that is made to behalf of this executor Counsel proceed to say:

‘‘An absolute direction to sell,effects a conversion, though the intended beneficiary (a charity) be incompetent to take, the will having been executed within one month of the testator’s death,” (Here follows a citation from a Pennsylvania case,)

Counsel for certain of the brothers and sisters and the administrator of Joseph E. Patton, claimed among other things:

“As to the real estate of the testator, we contend that it is stamped with the character of personalty by the absolute direction to the executor to sell and convert, and transmute into money,and that the right to the proceeds of its sale passed as personal property to the administrator of Joseph Frank Patton, to be distributed to his next of kin. Nothing is better settled in this state than that land directed by the will to be sold and converted into money is treated as personal estate, and governed by the statute of distribution.”

I have read so much from the points presented by counsel to show ho.w nearly the question presented here corresponds to the questions that were disposed of by the court in the case of Patton v. Patton; it being there insisted by different counsel representing the different interests in the case, that the direction to the executor operated to convert it into personalty, and to bring it, therefore, within the rules governing the disposition of personalty.

Mcllvaine, J. says:

“As to the claim of the Home and Foreign Missions: It was, beyond doubt, the intention of the testator, that in the case of the death of his widow, and the death of his grandson, leaving no child or children, the real estate should be sold by the executor, and the proceeds equally divided between the Missions. But, the testator dying within a year from the execution of the will, the contingent bequest to the Missions fell within the condemnatory terms of the proviso in section 1 of the Wills Act of March 30th, 1874 amending the Act of 1852.”

There the learned judge reads from the statute.

“In behalf of the Missionary Boards it is contended that this provision does not apply to a bequest contingent upon the extinction of lineal descendants. This contention is based on the assumption that lineal heirs alone may object to such bequest, as the proviso was for their protection alone. But this assumption is not authorized by the statute. We can see no reason why any one interested in thfe descent and distribution of the estate may not assert the invalidity of the bequest. True, the invalidity of the bequest depends on the existence of lineal descendants, natural or adopted, at the death of the testator; but no use of the void bequest is preserved to lineal descendants. It remains in the general estate, and if not otherwise disposed of in the wilh becomes intestate property. The true character of such bequest, whether void or valid, is determined by the state of facts existing at the testator’s death, and not by any subsequent contingency.”

After considering another proposition presented in the case, the court come directly to the main and important question to be determined:

“What, then, became of the title to the property in controversy, upon the death of the testator?
“Under the will,an estate for the life of the widow vested in her, and an estate in remainder, after the death of the widow, vested in the grandson, Joseph Frank, for his life. Remainder over, in fee, to the child or children of Joseph Frank, if he should die leaving a child or children. There was no such‘child or children’ in being. And no further disposition was made of the property in the will. True, the terms of the devise to Joseph Frank were ample to pass, subject to the life estate cf the widow, a fee simple remainder, but construed in connection with other parts of the will, it is quite clear that the testator intended the estate devised to the grandson to be for his life only.
“It seems clear,therefore,that upon the death of the testator, the whole estate,subject to the life estates of th’ewddow and thegrandson, vested by descent in the heir of the testator, subject to be divested in favor of the child or children of Joseph Frank Patton, if he should die leaving any.
“Joseph Frank Patton,therefore,sole heir of the testator, never having had a child or children, died seized of this estate in fee simple, and intestate.'
“The next question in the case is raised by the executor of Joseph D. Patton’s will, who claims the right under the will to sell the estate and administer upon the proceeds. Augusta A. Curtis and Jennie Hill, sisters of the mother of Joseph Frank Patton, as next of kin to the deceased Joseph Frank, claim that by the direction to sell contained in the will, the estate is to be regarded as converted into money, and passes to the next of kin as personalty. These claims may be disposed of together. The controlling question is: Did the testator intend that upon the death of Joseph Frank without leaving a child or children, this property should be converted into money, although the bequests to the Mission Boards should be invalid and void? It is not at all probable that the testator contemplated such contingency; but, on the other hand, we are satisfied that the sole reason of the testator directing the sale of the land was for the purpose of dividing the proceeds, as money, between the two Boards of Missions. If this be so, the power of sale fell with the bequests. The direction in the will is, that ‘If my said grandson, Joseph Frank Patton, die, leaving no child or children, then I direct my said executor, or his successor to sell'all my real estate * * * and the proceeds of such sale * * * I direct to be paid,share and share alike, to the Board of Home Missions. ’ True, the contingency happened upon which the testator intended the power to sell should -accrue, and upon the happening of the same contingency, the direction to pay the proceeds share and share alike to Mission Boards was to become absolute, according to the intention of the testator. But, by his death within a year from the making of the will, the direction as to the paying of the proceeds became inoperative and void, therefore the direction to sell also became inoperative and void.”

The learned judge then proceeds to cite from a paragraph of Williams on Executors language which very strongly and clearly expresses the view which he had laid down.

Our conclusion, therefore, is, that upon this, one of the main propositions, the will itself did not,by its terms,contain such an imperative direction to convert this real estate into money, or to dispose of it for the purposes contemplated, as make the equitable conversion claimed on the part of counsel for plaintiff in error. If it did that, under the ruling made by the supreme court in the case of Patton v. Patton, which I have read, the power to sell for a particular purpose, which purpose was declared to be inoperative and illegal by our statutes, would not make any special difference in the rules of law to be applied, lhis would not withdraw the devise from the operation of the statute which inhibits the making of a will, or which prevents the giving of effect to terms such as are here in question, unless the testator shall live for a period of twelve callendar months beyond the date of the will.

There is another question made here which I will briefly notice:

“Any property not specifically disposed of in the foregoing will shall, if not already invested, be put into a productive shape, and after the wants of the estate have been abundantly provided for, any surplus income shall be divided into three equal parts and given to my wife and each of my daughters.”

There was no provision of this character contained in the will of in the case of Patton v. Patton, and it is insisted here that if the devise fails by reason of the statutory inhibition, and is inoperative on that account, then it may be regarded as coming within the operation of the clause disposing of property not otherwise specifically disposed of. That is to say, if this clause is to be held inoperative and invalid — because contrary to the statute — that it is not specifically disposed of, and therefore it may pass under’the clause which provides as to what shall be done with property not specifically disposed of. But wé ¿re unable to see our way clear to adopt the view ingeniously stated by able counsel-supported partly by authority, I must confess, by which it is sought to give effect or to pass the property by virtue of this clause as to property not specifically disposed of. It seems to us that it would hardly be a proper construction of the will, or of the statute, to hold that where a testator has sought to make.a specific disposition of property, or a disposition of property by terms, and that disposition has failed ' — that bequest or devise fails to become operative by reason of being in violation of satutory regulations — nevertheless it’may come within a clause making a disposition of property not’specifically disposed of. We can hardly understand or suppose that if the testator has understood that operation and effect was not to be given to the clause which presents the principal question here, he was in that event disposing of^the property by the clause here in question.

Swayne, Sioayne & Hayes, for Plaintiff

Homer Goodwin, for Defendants

There are other questions made in the record of the. case; but in view of what has been suggested as to the proposition that we have passed upon, we do not think it necessary to express an opinion upon them. For example, we hardly think that it is necessary for us to say as to whether or not this devise is void for uncertainty. It is sufficient, it appears to us, that it comes within the language of the statute which forbids the disposing of property in this state, for charitable or benevolent purposes, unless the testator shall have survived the execution of his will at least the period of one year.

We desire to acknowledge our obligation to counsel for the very important assistance rendered in the collection, arrangement and presentation of the authorities and of the books bearing upon this important proposition.


author: Parker, J.

text:
    (Sixth Circuit — Huron County, Ohio, Circuit Court,
    April Term, 1897.)
    Before King, Baynes and Parker, JJ.
    J. H. BEERS & COMPANY v. JOHN F. GURNEY.

      Evidence — Other transactions not connected with the one sued on, incompetent—
    In an action on a written contract for the sale of a book,where the defense is, that the contract is fraudulent and defendant’s alleged signature thereto a forgery, itls error at the trial to admit evidence intended ,to show that the plaintiff had transactions.of- a similar unsatisfactory and fraudulent.nature with other parties,- where such transactions are in no way connected with the one in suit,and there was no proof that the persons acting therein were agents or representatives of plaintiff.

      Suit infirm name — What necessary — Waiver—
    A partnership to be authorized to bring an action in its firm name, must in its petition make the necessary averments required by sec. 5011; Rev. Stat., that it is a partnership formed for the purpose of doing business in Ohio. But this is an objection that may be waived, and where the defendant fails to take advantage of the omission of such averment by proper pleading, the objection is waived 'and can not be made for the first time at the trial of the case on error.
    Same—
    Whether the objection may be raised hereafter in the court below to which the case is remanded-for new trial on the reversal of its first judgment, not decided.
   Parker, J.

The plaintiff, J. H, Beers & Company, brought a suit in its said firm name against the defendant in errorj John F. Gurney, before a justice of the peace in this county, upon a certain written contract of which the following is a copy:—

“To J. H. Beers & Co: I hereby agree to take one copy of your Commemorative Biographical Record of the counties of Huron and Lorain, Ohio, if published, for which, when delivered to me or at my residence or place of business, I will pay to you or your order the sum .of fifteen dollars. I base the above on what is promised in your prospectus.I further agree to correct or revise, if necessary, and to promptly return the Biographical Sketch when sent to me for that purpose”.

What purports to be the signature of John F. Gurney appears upon the paper just below what I have read, ¡

The defendant filed before the justice of the peace an answer which reads as follows: .

“Now comes the defendant,and in answer to: the plaintiff’s bill of particulars, filed in said-case, makes the following defense, viz: That he never made any contract with the said J. H. Beers and Company of any kind whatever, neither express or implied, nor verbal or written; and that he wholly denies having signed the contract filed in this case, nor did he instruct or authorize any person to sign it for him; and he further says that the plaintiff has no cause of action against him. The defendant therefore prays that the said action be dismissed, and that a judgment be rendered against said plaintiff for costs.”

This answer is verified, and seems to meet the requirements of the provision of section 6577, Revised Statutes, to the effect that the genuiness of the signature of a person used upon a written instrument which purports to be signed by him may be put in issue by “an affidavit that such instrument of writing was not made, given, subscribed, accepted or indorsed by him.”

The defendant afterwards filed what he denominates “an amendment to defendant’s bill of particulars,” which reads as follows:

“Now comes the defendant and prays leave to amend his answer in said case as follows: That the alleged contract upon which plaintiff bases this action, is a case of forgery and fraud. That the plaintiffs, through their agents, have practiced the same fraud and deception upon various other persons with like contracts as have been alleged by the plaintiff in his bill of particulars, and have, through threats of litigation, forced other parties to settle for books they never contracted for; which contracts were forgeries, similar to the contract in this case. All of which allegations he is ready and willing to prove”.

The case was tried before the justice of the peace and a jury, and the trial resulted in a verdict for the defendant, which, on motion of the plaintiff, was set aside, and another trial was had before the justice of the peace and a jury, which also resulted in a verdict in favor of the defendant. Whereupon the plaintiff moved the court to set aside said verdict and grant it a new trial. Among other grounds stated in said motion are these: That the verdict is not sustained by the evidence; and that the justice erred in admitting evidence prejudicial to the plaintiff over its objection. This motion was overruled, and judgment was entered against the plaintiff upon the verdict. It had allowed, and filed, its bill of exceptions which contains all the evidence submitted to the jury upon this trial of the case. The plaintiff filed its petition in the court of common pleas to reverse tnis judgment, but the court found that there was no error in the record prejudicial to the plaintiff in error, and affirmed the judgment. This proceeding is prosecuted to reverse the judgment of the court of common pleas and said judgment of the justice, and for the setting aside.of said verdict.

A careful reading of the whole record discloses the fact that the case was tried upon the single issue as to the genuineness of the defendant’s signature to the contract upon which the suit was brought.

It appears upon the record that the plaintiff, the location of whose head-quarters for business is somewhat uncertain, was engaged in preparing, publishing and vending a book denominated, “A Commemorative Biographical Record of the Counties of Huron, and Lorain, Ohio”; and that the business of obtaining the materials for the sketches to be published in said work, and of obtaining subscribers for the book, and of delivering the book and collecting from the subscribers, was being transacted in Huron and Lorain counties, Ohio. That in the transaction with the defendant in which the contract sued 'on was given (if it was in fact given), the plaintiff was represented by an agent and the defendant acted on his own behalf. The defendant gave to this agent the materials for the sketch of defendant’s life to be published in the work, and, the plaintiff claims, at the same time, signed this subscription sued on for a copy of the work. At all events,these parties met and had some negotiations about this matter, and this business was all transacted in Huron county, Ohio.

In -the course of the1 -trial, witnesses “on behalf of the., defendant were permitted to testify to other transactions of the same character between the witnesses; and persons who represented .-themselves to be agents of the plaintiff; transactions which appear to be in.no way connected wth .that in in which the defendant.was concerned, and out of which this controversy arose, and with persons who did not appear for any competent evidence introduced to have been agents of the plaintiff; and these witnesses were permitted, over the objection of the plaintiff, to testify that these persons, who claimed to be agents of the plaintiff, had in these transactions attempted to defraud them in a manner similar to that in which defendant here claims that.the plaintiff and its. agents attempted to defraud him.

. As an example of this kind of evidence introduced upon the trial, I read from the bill of exceptions:

“The defendant to further maintain theissues of his part, swore and examined as witness, Ephraim Frost, who testified as follows: viz; that sometime in the spring of 1893, aman came to his house who said he.had been to Mr. John F. . Gurney's who had signed for the book, and for which he was the agent for some parties in Chicago, who were getting up a biographical book,and that he wanted him to subscribe for the same. He said that he did not know the man or his name. All he knew about him was what he said himself, that he had been to McGurney’s house. Plaintiff objected to witness giving his testimony, for the reason that he did not know he was the same man who had transacted business with Mr. Gurney, and the statement of the man, whoever he was, .could not alone be received as evidence of his agency The court overruled the objection and allowed the witness to give his testimony, to which ruling and allowance of the court, the plaintiff then and there excepted and does now except, The said witnéss then proceeded and testified that he gave said party a biographical sketch of himself and family, and when he had written it out, he asked him to sign a contract to take a copy of the book if it; was -published, and that he refused to do. so, and -told him that he did not want the book, and that the man went away, and he heard npthing morp-abont.-it until-the spring of 1894, when a man broqg.b.t a .book and .left it a't his house. ■ A short time after, the book was left at his house, a man who said, he was an agent of J. H. Beers arid Corhpány, deirianded payment for the book, and said he had a contract purporting to be sign-1 ed by witness for the same, and ■ he produced it, and his name was signed to it by a mark, and he told trie man that' it was a forgery, as .he co.uld sign his., own- name, and the man said his daughter signed his name to it, which he said was not true, as his daughter,nor any of his daughters, were not at home at that time, and his name to said contract was a forgery.
‘‘And thereupon the plaintiff moved the court to take said testimony from the jury, which motion the court overruled, to which ruling of the court the plaintiff then and there excepted, and.does now except.”

There is other testimony of the same sort from the witness A. Cushman, who testified that a man came to him and represented himself to be an agent of J. H. Beers and-Company, and who, according to his story, undertook to swindle him by requiring him to settle upon a contract which he declared he had not signed.

Another witness, one William Van Lue, was asked the general question: ‘‘State whether the transaction you had with J.' H. Beers and Company was satisfactory to you?” This question was objected to by- plaintiff. The objection was overruled by the court, to which ruling the plaintiff excepted. Answer: ‘‘No, sir: it was not. ”

On account of this testimony, admitted over the objection of the plaintiff, we find that there was error in the proceedings. before the justice which was clearly prejudicial to the' plaintiff,-and which requires -a -reversal of the judgment' rendered by the justice-of the peace, unless it shall appear' frpin the whole record that the plaintiff was not entitled to maintain the suit or recover a judgment-therein. ■ '■ ¡

Wear.e.not favored.by a report of the opinion of the-learned judge of the court of common pleas, but we cannot doubt that be took the same view of the matter of the admission of this testimony; we are advised, however,that he affirmed this judgment upon the ground that the plaintiff, suing in its first name,did not appear to have shown itself to be entitled to thus sue and prosecute its action, and that it does not affirmatively appear in the record that it was a partnership formed for the purpose of carrying on a trade or business in this state, or holding property in this state; it did not come within the purview of section 5011, Rev. Stat., authorizing such partnership to sue by the usual or ordinary name which it has assumed or by which it is known.

It has been held by the supreme court in the cases of Haskins v. Alcott, 13 Ohio State, 210, as a rule of pleading, that the plaintiff must bring itself within the provisions of this act in order to carry on a suit in the firm name; but it is also held in the same case, and in other cases, that the omission to make the averments necessary to bring the plaintiff within the purview of this section,is a proper cause for demurrer under the second sub-division of section 5062, of the Revised Statutes,viz: on the ground that the plaintiff has no legal capacity to sue; and that, unless the pleading is demurred to on this specific ground, the objection is waived. That it is waived where a general demurrer only is interposed.

The same principle is involved and approved in the case of Abernathy v. Latimore, Jenkins & Co., 19 Ohio, 286.

In the case of Sanders v. Keber & Miller, 28 Ohio St. 630, an objection was made to the form in which the plaintiff brought its suit,the suit having been brought in the firm name, and the names of the members of the firm not having been given, the petition in that case containing the allegation that the plaintiffs “are a firm doing business within the state of Ohio’’,and omitHng to state that it was formed for that purpose. The court below did not sustain this objection, and the defendant, without excepting to this ruling, answered over, and the case was heard on its merits. The supreme court, without passing upon the question whether this objection was well founded, say, that because of this action taken in failing to except to the ruling, etc, “it is now too late to raise this question.”

In Globe Rolling Mill v. King & Co., reported in Volume 2, of Cincinnati Superior Court Reports, at pages 21 and 22,the point was made that the defendant firm suing in the firm name, was described in the petition as “a firm doing business under that name in the state of Ohio”, instead of describing it as formed for “the purpose” of doing business in this state. And the case of Hasking vs. Alcott was cited as sustaining the point that this was insufficient. The court held that this point was not decided in the case cited,and Taft, Judge,in the opinion,says that “the language of the opinion of the court would seem to go upon the hypothesis that the essential thing under the statute was to show that the firm was actually doing business in the state of Ohio. I think that if it appears that the firm was actually doing business in the state, it is to be assumed that it was formed for that purpose,and I cannot regard it as a defense that a firm actually doing business here was intended to do business somewhere else.”

In this case, we do not feel called upon to either approve or disapprove of this holding, but remark that if this rule was applied to the casein hand, the judgment must be reversed, because it fairly appears from the -record that this firm was actually doing business in Lorain county, Ohio,and the suit grows out of a business transaction carried on by the firm with the defendant in Lorain county, Ohio; and it does not affirmatively appear in the record that the firm was not formed for the purpose of carrying on business in Ohio, nor that it was formed for the purpose of carrying on business any where else, nor that it, in fact, ever transacted any business outside of the state of- Ohio.

It is claimed that the bill of exceptions shows that the head-quarters 'of' the firm are in' Chicago, Illinois. The statement of the witness Beers in his deposition, upon which this claim is based, is somewhat equivocal; it may relate to, his own residence as Well as to the place of business of the firm; but we base our decision upon the' ground that this objection,to the suit being brought in the firm name, was not raised during the pendency of the cause in the justice’s court, and was therefore waived in that court.

We d'o not pretend to'say just how this objection to the capacity of the plaintiff to sue must be raised before the justice of the peace in order to prevent the application of the doctrine of waiver; but where we find, as in this case, that the right of the plaintiff to recover a judgment has been vigorously contested upon two trials and upon several hearings without this question having been raised or suggested, we think that it ought to be deemed waived.

The defendant asked that the plaintiff might be-required to give security for costs, and that in default thereof, the case might be dismissed-. Security for costs was ordered and given. Afterward, on motion of the defendant, additional security was required and given.

There is one motion interposed by defendant to dismiss the cause in which no ground is stated. It does not appear anywhere in the record that any objection whatever was raised to the suit being instituted and carried forward in the firm name, and no effort was made upon - the trial to show that the plaintiff firm was not authorized to -maintain this suit in Ohio, in its firm name. If the question had been presented, it may be that the plaintiff [might have shown beyond question its right to sue jthus. Its right to sue in this way, may have been known to, and recognized by the defendant. It may havé been clear; at all'.events, it is unquestioned. But, even if it might have been successfully disputed, it is not a question that goes to the jurisdiction of the court over a party, or over the subject matter. It is an objection that may be waived.

D. H. Young and Sherman Culp, for Plaintiff.

Wm. G. Burwell and G. B, Craig, for Defendant.

We do not undertake to hold that this question may not be raised hereafter in any subsequent proceeding that may be had in this case in the courts below. , We express no opinion upon that subject. We simply hold that it was too late for the defendant in error to raise this question when the cause was pending on error in the common pleas court; and if it may still be interposed when the cause comes up to be heard upon its merits, it should be done in such a way as to distinctly raise the question and afford the plaintiff an opportunity to be heard, or present its proof upon it.

The absence of affirmative allegations, or proofs in support of its right to sue in the firm name, where no objection had been interposed, to its suing in this way, is not sufficient to justify a judgment against the plaintiff.

The judgment of the court of common pleas is reversed, and the case will be remanded to that court with directions to reverse the judgment of the justice of the peace and set aside the verdict, and to set the case down for trial or other proceedings according to law, in the court of common pleas. The costs of the proceedings in this court, are adjudged against the defendant in error.


author: King, J.

text:
    (Sixth Circuit — Sandusky Co., O., Circuit Court
    Dec. Term, 1896.)
    Before"Haynes, Scribner and King, JJ.
    GEORGE KINNEY AND F. O’FARRELL v. STATE OF OHIO.

      Suit on forfeited recognizance — Sufficient averments in petition—

    1. In a suit on a forfeited recognizance,the petition stating that the bond was forfeited, and the facts, is sufficient without averring that the bond was “duly” forfeited.

      Interest chargeable on forfeited recognizance— ■ '
    3. A recognizance is a promise to pay a certain sum of money, and on condition broken draws interest from the time when due.
    Error to the Court of Common Pleas of Sandusky county.
   King, J.

This proceeding is brought to reverse the judgment of the common pleas, which was rendered against the defendant upon a recognizance for $330.00. It is urged here-as a reason why this judgment should be reversed that the petition does not show that the case in which the recognizance was given was continued, from one day to another, the period of time for which the bond was entered. We are of the opinion that the pleading, by averring that the defendant entered into recognizance to appear at the same court at a certain other day, is sufficient without showing that the justice or magistrate adjourned the case.

Another ground of objection is that the petition does not allege that forfeiture was duly made pursuant to a statute which provides that in pleading a judgment or other determination of a court it shall be sufficient to state that the same was duly made or rendered; but the amended petition, upon which judgment was taken in this case, sets forth exactly what was done to forfeit this bond.

It makes the allegation that the bond was thereupon forfeited — does not say duly forfeited, but having set forth the facts that on the hour and time named in the recognizance defendant did not appear, and continued to absent himself for more than one hour thereafter, and thereupon the names of the sureties were called at the door of the office, and he came not, and thereupon the justice declared the bond was forfeited, this would constitute a due forfeiture of the bond, and would not require an allegation in the pleading that it was duly forfeited. It is also claimed that the petition shows that the recognizance does not decribe any statutory offense. The offense described in the recognizance is that the defendant was charged with passing counterfeit coins.

There is no crime described in just so many words in the statute, but the amended petition sets forth exactly what he was charged with at the time that the recognizance was given,and in 6th Ohio Reports, page 254, the court, in passing upon recognizance, say:

“It is contended by the defendants that this recognizance is in too general terms; that it is void for uncertainty, and, therefore, not matter of record on which an action can be sustained. The condition as set out in the declaration, is that the said William Dawson appear here, from day to day, during the present term, to answer what may be charged against him, and not depart without leave. This is in the usual form,'and no substantial objection to it is perceivable. It is not necessary to specify any charge in the recognizance which had been made against the accused, and for which alone he is to appear and answer, although it is necessary to aver in declaring on such a recognizance that the defendant was in custody on an accusation for some offense, or had been charged with some crime, before the court could hold him legally responsible for having forfeited his recognizance.”

That was a decision when we were under the old forms of pleading and practice, yet it was there held to be unnecessary to describe any offense in the recognizance itself. Directly in line with that is a decision of the New York Court of Appeals, referred to here in the 26th N. E Reporter, 469, in which they hold, under the provisions of their code:

“The omission in a bail-bond to specify the crime for which the bail is given does not release the surety, since thése substantial rights are not prejudiced by such omission, and by Code Crim. Proc. N. Y. sec. 684,it is declared that no proceeding under the code shall be invalid because of any error or mistake that does not prejudice defendant’s substantial rights. Reversing 12 N. Y. Supp. 40.”

We have no such provision-in our civil code,so we think this objection is not good upon that ground. It is also said there was judgment here for interest,- but we are inclined to believe that is correct. It is said, or stated, that this sum is not fixed; that is to say, it is within the power of the court to reduce it.

The statute authorizes, in two different sections that the court, on presentation of a case like this,may reduce the bond or amount; or in one section provides that they may reduce it entirely if defendant appears,and in the other that the court may reduce it in accordance as the facts may show right and justice to be; but that is not a sufficient reason for holding that the bond does not draw interest. It is a promise to pay the money on condition broken, and, we think, draws interest from the time when due.

Therefore judgment will be affirmed.


author: Swing, J.

text:
    (First Circuit Hamilton Co., O., Circuit Court
    January Term. 1897.)
    Before Smith, Swing and Cox., JJ.
    JOSEPH RAWSON & COMPANY V. SCHOTT, TREASURER.
    In making additions to tax returns the board of review must act with reason and upon the evidence before them.
    Appeal from the Common Pleas of Hamilton county.
    The suit was to enjoin the collection of taxes on additions of $35,760 and $20,000, made to the plaintiff’s tax return for the year 1892, under the Rawlings Law, (sec. 2742, Rev. Stat.,) by the Board of Review, sitting as a Board of Equalization. The hearing belcw was on demurrer to the petition,which was.sustained by Judge Sayler,in an opinion holding the'law constitutional.
   Swing, J.

We are of the opinion, that the injunction should be allowed. Plaintiffs by its allegations and proof, bring the case under the well settled rule of equity, that where the board acts from mere caprice or arbitrarily, a court of equity may grant relief. A court of equity would not interfere on a mere question of evidence, or the weight of evidence; all such matters are for the board to determine, and its action must be final as far as relief Iby injunction by a court of equity is concerned. But when the board acts without evidence, or arbitrarily, or from mere caprice, a court of equity can, and should,grant relief. In the case before us, the only evidence was that of Joseph Rawson,and the action of the board on the evidence, was not only not in accord with the evidence,but so manifestly contrary to it, that it is charitable to say that it is purely arbitrary, and such power was not intended to be exercised by the board.

Ramsey, Maxwell & Ramsey, for Plaintiffs.

For cúter, Rencligs & Dinsmore,for Defendants.