author: MOONEY, J.

text:
    AGENCY — FRAUD—PARTNERSHIP.
    [Wood (6th) Circuit Court,
    November, 1903.]
    Hull, Haynes and Mooney, JJ.
    (Judge Mooney of the third circuit sitting in place of Judge Parker.)
    Harry Jones v. Charles H. Draper.
    1. WHEN Agent May Act eor Two Adverse Principáis, etc.
    An agent may, under certain circumstances, represent two adverse principals in the same transaction, but the prima facie presumption is, in all such cases, that inconsistent duties have been' assumed, and in order to relieve the agent from suspicion, it is necessary that knowledge of every circumstance connected with his employment by either should be communicated to the other, in so far as the same would naturally affect his action; and failure to make such disclosure amounts to a fraud in law, such as will entitle the party defrauded, upon his election and prompt action, to have the contract entered into through the efforts of the agent declared void.
    2. Increasing Commission oe Double Agent by One Principal Amounts to Fraud on Other, When.
    Where the commission of an agent, who is representing two adverse principals in an oil property sale, was changed from usage to contract, and the amount thereof increased from $3,000 to $6,500 by one of the principals without the knowledge of the other, such change in the nature of the agent’s claim and increase in commission is a circumstance naturally affecting the agent’s action, of which the other principal is entitled to be informed; and the failure to make such disclosure is a fraud in - law upon him, such as will entitle him to equitable relief in the premises.
    3. Literal Resort Cannot Be Had to Words When Fraud Would Be Worked Upon Innocent Party.
    A person cannot resort to the literal meaning of language used by him, for the purpose of evading the force of an impression which he knew another has received from his words and conduct, and which he meant him to receive. Hence, when the present capacity of an oil well was only fifty-three barrels a day, which fact was known to vendor but unknown to vendee, and the former in response to an inquiry from the latter as to its present capacity, replied, “I had run two one-hundred barrel tanks a day,” which was the capacity of the property several weeks previous, and vendee believed from vendor’s conduct and words that he was. stating the present capacity of the property, and acted upon it to his prejudice, the vendor’s reply and conduct, in such case, is tantamount to a fraud upon vendee which will entitle him to relief; and vendor will be estopped from resorting to the literal meaning of his words to escape liability to the vendee.
    4. Inspection oe Property Prevented by Vendor Justifies Vendee in Acting Upon Former’s Representations.
    Where an inspection of property by a prospective purchaser is prevented, , or its completeness is defeated by the conduct or words of the vendor, without the vendee’s actual knowledge, the vendee is justified in relying upon the statement? of the vendor as to its condition, without either making the investigation which otherwise he might be bound to make, or completing the one which he had commenced.

      5. Notice Acquired by One Partner in Committing Fraud Upon Copartner not Notice to Latter.
    Where one partner commits or consents to the commission of a fraud upon, his copartners, notice acquired by him in such fraudulent transaction is not notice to the others.
    6. Innocent Partner not Denied Relief Because it May Relieve Guilty Partner, When.
    The fact that a partner who has committed a fraud upon his copartners, will be released from liability if relief is granted to the innocent partners, is not sufficient cause to warrant a court of equity in refusing to relieve the latter from the fraud.
    7. Scope of Relief When Vendee Fraudulently Induced to Purchase Property.
    Where plaintiffs were induced by defendant’s agent, 'who was also supposed by them to be their agent, to purchase oil property for $60,000 which was worth but $15,000, upon material misrepresentations which they believed to be true and relied upon, and their investigation of the property whs1 prevented by the conduct and words of defendant, in such case, a court of equity will decree the purchase void, the conveyance rescinded, the purchase money paid thereunder returned with 6 per cent interest, the notes given for the balance of the purchase money cancelled, and allow plaintiffs a lien on the property for the money expended in putting the property in condition for operation, and for the value of improvements made by him which have increased the value of the property.
    Appeal from common pleas court.
    Phelps & David, for plaintiff:
    Every principle of law wbicb should govern and control this case is laid down and discussed in Youman v. Lazley, 40 Ohio' St. 200; Fetters, Equity Secs. 38, 39; 1 Pomeroy, Eq. Jurisp. Secs. Ill, 399; Warvelle, Vend. & Pur. 851; Burch v. Smith, 15 Tex. 219 [65 Am. Dee. 154]; Miller v. Rivers, 138 Pa. St. 270 [22 Atl. Rep. 243]; Reed v. Peterson, 91 Ill. 288; Allen v. Hart, 71 Ill. 104; Ashton v. Thompson, 32 Minn. 25 [18 N. W. Rep. 918]; Kelley v. Sheldon, 8 Wis. 258; Arbuckle v. Biederman, 94 Ind. 168; Murray v. Beard, 102 N. Y. 505 [7 N. E. Rep. 553]; Fisher v. Bishop, 108 N. Y. 25 [15 N. E. Rep. 331; 2 Am. St. Rep. 357]; Cadwallader v. Wes];, 48 Mo. 483; Vandyke v. Walters, 88 Ill. 444; Brown v. Burbank, 64 Cal. 99 [27 Pac. Rep. 940]; Kleeman v. Peltzer, 17 Neb. 381 [22 N. W. Rep. 793]; Perkins v. Rice, 16 Ky. (Litt. Sel. Cas.) 218 [12 Am. Dec. 298]; Capener v. Hogan, 40 Ohio St.'203; 1 Am. & Eng. Enc. Law (1 ed.) 372, notes, 380; Appleby v. Frost, 3 Dee. 441 (2 N. P. 178) ; Bell v. McConnell, 37 Ohio St. 396; Findlay v. Pertz, 9 O. F. D. 30 [66 Fed. Rep. 427; 13 C. C. A. 559; 31 U. S. App. 340]; Everhart v. Searle, 71 Pa. St. 256; Fisher v. Saylor, 78 Pa. St. 84; Parmlee v. Adolph, 28 Ohio St. 10¡.Watson v. Erb, 33 Ohio St. 35; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Mulvey v. King, 39 Ohio S't. 491; Cannell v. Smith, 142 Pa. St. 25 [21 Atl. Rep. 793; 12 L. R. A. 395]; Mudsill Min. Co. v. Watrous, 61 Fed. Rep. 163 [9 C. C. A. 415; 22 U. S. App. 12]; Nichols v. Colgan, 130 Ind. 341 [30 N. E. Rep. 301]; Hedin v. Medical & Snrg. Inst. 62 Minn. 146 [64 N. W. Rep. 158; 35 !L. R. A. 417],
    Beverstock & Donehay,. for defendant.
   MOONEY, J.

Plaintiffs in their petition allege, in substance, that some months prior to November 8, 1902, they undertook the promotion of a corporation to be known as the Cleveland-Scranton Oil Company, designed to engage in the business of developing, operating for, and producing oil in the Ohio oil fields, and to that end solicited numerous persons to subscribe and pay for stock of the corporation to be organized, said payments to be made to plaintiffs, as trustees, to purchase oil producing properties and to hold title to the same until such time as the proposed corporation should be organized and empowered to do business in Ohio, when said title should be conveyed to the corporation and stock therein issued to the contributors of the purchase price of said properties; that plaintiffs were then without experience in the oil business and had then no knowledge of the market value of oil producing properties in this state, and for these reasons they associated themselves with and employed as their trusted and confidential agent, to examine and select such oil properties to be purchased, one A. J. Thomas, of Findlay, Ohio, a man of great experience in the business of producing oil in the Ohio fields, and plaintiffs relied exclusively upon the business judgment and fidelity of said Thomas in making said selection and in closing said purchases ; that among the properties selected by said Thomas as said agent were certain oil leases with the wells, machinery, fixtures and appliances then situated thereon owned by defendant at the price of $60,000; that at the time of said selection by Thomas, and at all times thereafter until December 18, 1902, the wells on said leases were out of repair and not in actual operation, and for that reason it was impossible to ascertain what said wells were capable of producing when in repair and in proper working order; that defendants represented to plaintiff that said wells were then capable of producing at least forty barrels of oil daily, and that no wells had ever -been drilled upon any part of said land except upon the outside edges thereof, and that the whole central area of said land was virgin oil territory with' many inside locations defined and known to be prolific territory which had never been drilled to drain or deplete the oil in said land, upon all of which statements so made by defendant, these plaintiffs and their beneficiaries relied; that after all this and on November 8, 1902, said Thomas as said agent and confiden'■tial adviser recommended to plaintiffs, as said trustees, the purchase by them of said property of defendant for $60,000; that on said day plaintiffs did accept-a conveyance of said property for said price, less $300 deducted therefrom for repairs, and then paid to defendant in money $9,700, and delivered to defendant their notes aggregating $50,000, which notes and money are still retained by defendant; that on said day plaintiffs took possession of said property, and thereafter expended a large sum of money to put said property in condition to operate and to. determine the character and capacity of said wells; that plaintiffs have just discovered and now charge:

First, that defendant paid said Thomas a large commission to induce him to recommend said property to plaintiffs and to procure said purchase by plaintiffs; second, that the statement that no wells had been drilled within the central area of said land was and is untrue; third, that the wells on said lease were not and are not capable of producing forty barrels of oil per day, nor any amount in excess of. ten or. twelve barrels per day; fourth, that both defendant and said Thomas at the time “they beguiled plaintiffs into making said fraudulent contract” well knew that the market value of said property did not exceed $15,000; that plaintiffs before the commencement of this action tendered to defendant a reconveyance of said property and demanded a neturn of the money paid and notes delivered by them to defendant as heretofore stated, and defendant declined to accept said reconveyance or to comply with said demand.

The prayer is, that said contract and conveyance be adjudged void; that said notes be canceled and said money be ordered returned; that the money expended by plaintiffs upon said property be found to be a lien upon said property and the amount thereof be ascertained on an account taken, and for all proper relief.

Defendant by answer admits the transaction, but denies the fraud. He states that long before said transaction, or any off said negotiations, said Thomas had been retained as a broker by him to make sales of said property, all of which was known to plaintiffs; that the defendant had been interested in said property only about one year, had been upon „the same only a few times, and gave plaintiffs all the information he had concerning all the wells drilled on said lease in response to plaintiffs’ inquiries. Defendant expressly denies that he stated that the ■central area of said property was then undrilled, but that on the contrary he stated that the same had been drilled, and that one of the wells drilled thereon had the reputation of producing 8,000 barrels of oil per day; defendant further states that he furnished plaintiffs with the pipe line statement showing the oil produced from said wells in. July and August, 1902, and all of which facts were known to plaintiffs? at the time of said sale. All allegations of the petition not admitted by ■ the answer are denied. Plaintiffs by reply deny all the affirmative alie- ■ gations of the answer.

The case was heard and submitted here upon these pleadings and-the evidence. A transcript of the testimony given at the trial in the--common pleas court was used here.

The objections made there appear in this transcript. We find’ no rulings there made on the evidence that we are very solicitous to charge, and counsel have argued no questions arising thereon which they deem important. We abide therefore by the rulings made below.

From the evidence it appears that Harry Jones, a resident of Cleveland, one of the plaintiffs here, prior to August, 1902, formed the purpose to associate himself with other persons, then undetermined by him, to purchase oil properties, organize a corporation to own and operate the same, and to reap a joint profit for himself and associates by conveying the property so purchased to said corporation and selling the stock of said corporation to an amount sufficient to pay the cost price of the property and the amount of profit which the promoters might require. At this time Jones was without experience in or knowledge of the oil business or the'market value of oil-producing properties.’ Jones made known his purposes and intentions to A. J. Thomas, of Findlay, who at that time was experienced in the oil business and was acquainted with the market values of Ohio oil-producing properties. An arrangement was entered into between Jones and Thomas whereby Thomas undertook to find, if possible, one or more oil properties that could be purchased and would be suitable for the proposed enterprise. At this time Thomas contracted to associate himself with Jones in the general plan. After this arrangement was made, Thomas learned that the defendant’s property was for sale, and upon inquiry of Draper was informed that the price was $60,000. On or about September 16, 1902, Jones, together with one Wilson, who as an expert was visiting the property in behalf of some intending investor or investors other than himself, met Thomas by arrangement and they went to the defendant’s lease. Here they met one Hendricks, who at that time was with defendant a joint owner of this property. Wilson informed Hendricks that they h?d come to look over the property. Hendricks, in his testimony on cross-examination (transcript, page 112), details what he said a« follows-*

“Q. And he, Wilson, asked you some questions about the wells? A. Yes, sir.
“Q. And about the production? A. Yes, sir.
“Q. And what do you say you told him? A. I told him we were running about two one hundred barrel tanks a day then. ’ ’

The fourteenth question after this, in the same cross-examination of the same witness is as follows:

“Q. Mr. Hendricks, you say that day, the day that Wilson was there, in the presence .of Mr. Thomas and Mr. Jones, that you were asked what that lease was doing at that time ? A. No, sir.
“Q. Were you not? A. No, sir.
“Q. Did you make any statement that day as to what that lease was doing? A. No, sir.
“Q. Did you not tell some one then that you were running two hundred barrel tanks a day? A. I said that I had run that.
“Q. What was the question put to you when you made that answer? A. They asked me what it was doing, and I told them I had run two hundred barrel tanks a day.
“Q. Did you not tell them that you were now running that then? A. No, sir; X did not. ’ ’

At about the time of this conversation, Draper arrived at the lease and Hendricks — to use his language — “turned the visitors over to him.” When Draper met the parties he was inquired of as to the production. He exhibited to the parties a pipe line statement, the extent of which as to time is in dispute. Draper says the statement covered all the time from October, 1901, to August 14, 1902. Jones disputes this and says the statement covered the first half of August, 1902, only. It is argued that Draper that day. by wire ordered a statement covering the month of August, 1902, sent to Wilson at Findlay, because he wanted to base his report upon a full month’s statement, and Draper testifies that he, Wilson, wanted to make as good a showing as possible so that the deal would go through. See transcript, page 119. The records of the pipe line company do not show that Draper had any such statement as he testifies he had, but, on the contrary, show that the general statement sent him terminated July 31, 1902, and not on date of August 14, 1902. The records further show that Draper ordered and there was sent him a statement for the first half of August, 1902, and that bn September 4, 1902, there was sent to him a statement for the whole month of August, 1902. The evidence (deposition of R. L. Bates) further shows ;that if a large month were wanted, and if defendant had the statement he says he had, that the largest month’s production would be for the month beginning July 15, 1903, and ending with the last item in the August half-monthly statement.

, It will be noted that after August 14, there were eight tanks only in August, whereas there were fifteen tanks run from July 15 until the end of July. Moreover the distance between the watermarks in the paper still intact is eleven and one-fourth inches, while the distance between the marks on the upper part of the paper and upon that on which the August statement appears is only nine and seven-eighths inches. If the two parts were part of the same piece of paper, the distance between the marks would be the same. Since Mr. Draper’s explanation does not explain why the month of August was embraced in a single statement to Wilson, since the records of the pipe line company are against his recollection of the facts, and since the physical appearance of the paper is also in dispute of his statement, it must be assumed and held that he is mistaken in his theory as to the extent of the statement he presented to Jones and Wilson on September 16, 1902.

This leads to another inquiry. On that day, Draper had a statement for the entire month of August, 1902. It was sent him on September 4, 1902. He had run tickets also in his possession. He therefore knew what oil was produced in the month of August, yet he does not exhibit that statement. In the last-half of August the lease averaged half a tank a day. In the first half of August the lease averaged one and one-half tanks per day, and some days two and some days three tanks were run. The first half of August was in line with what Hendricks had told the parties; the last half was not. Draper was there that day to see intending purchasers, yet he did not bring the last statement of production, nor did he exhibit it, but did bring another that was favorable to the property and its production..

Afterward several other parties visited the lease. There were •other parties who intended joining Jones in the purchase or intended to purchase stock in the company. Several of these testify that Draper made statements as to the production of the lease, stating it to be forty barrels per day or more. Draper denies that he made these statements. The average daily production of the lease in August, 1902, was fifty-three and fifty-six hundredths barrels; in September, twelve and twelve hundredths; in October six and fifty-six hundredths. During these months, at no time were all the wells equipped for pumping, and at no time were the equipped wells regularly pumped. At no time prior to November 8 did Thomas take any gauge of the wells. September 29, 1902, Jones took an option on the property which fixed the price at $60,000. Thomas acted as Jones’ agent in the transaction. October 22, this option having expired by limitation,-it was renewed and extended “for such a length of time as will enable (defendant) first party to put the twelve wells in operation and first party agrees to put the-wells in operation as soon as possible and to extend the time of the-within option until said twelve wells are fully equipped and operating-to the satisfaction of A. J. Thomas both as to the operation of said lease, its production and its title.” October 28, Thomas took a statement signed, by Jones certifying that he, Thomas, was not a member or stockholder in the purchasers’ combine, nor in the corporation, but was at will an. employe.

When Draper first entertained the proposition to sell, he told-Thomas that there would be 5 per cent commission for selling the lease. Thomas informed Jones of this fact, and Jones concluded to divide the-commission among the purchasers. Jones says that Thomas stated that, by the usage of the oil business, a commission was always paid. This; Thomas does not deny. Draper says that he asked Jones whether he was interested in the commission and Jones said, “No, settle that with Thomas.” Thomas did not know of this statement, and Jones denies it. Draper did not see Jones on the lease after October 28, when for the first time Thomas became solely interested in the commission to be allowed. On October 28, Thomas stipulated with Jones that the commission on the sale should be paid to Thomas as compensation for his; services in the deal. About November 1, 1902, Thomas, who before-that time had looked after plaintiffs’ property as manager, quit their service in that capacity, and on that date stipulated with Draper that, upon the close of the deal then- pending between plaintiffs and defendant, Thomas should receive, if the property was purchased at -the price-of $60,000, a commission of $6,500. There is no pretense in the case-that any of the plaintiffs except Jones knew of any commission at all and no claim that Jones knew of any commission except 5 percent and that fixed by the usage of the business and not by contract. November 8, Draper and Thomas were in Cleveland and the-deal was then closed, the money paid and notes executed as pleaded.

It is fair to conclude from all the evidence that the property from the time of taking the first option until November 8 was at no time-worth in the market to exceed $15,000. It is asserted by one or more witnesses that Draper represented that the central area was never drilled. Draper denies this, but upon the contrary states that he said the property had been drilled, and pointed out abandoned wells. He-says though that he did say that the old territory was then usually redrilled, and that he pointed out where a line of wells, could be estab-lisbed. There are several conflicts in the evidence upon important circumstances. One between Cook and Draper; one between Marr on the one hand and Draper and Thomas on the other, and one between Major Miller, and to some extent Bowler and Jones, on the one hand, and Draper and Thomas on the other. Cook says in substance that at one time when he was working for Draper as pumper on this lease and after these negotiations were commenced, he saw. Thomas take a gauge of the' tank. He told Draper, saying, “You are caught, Thomas is taking a gauge of the production.” To which Draper replied “I can get Thomas.” Thomas says he did take one gauge and never satisfactorily repeated it, and he as an expert oil man, paid for his services and paid well, whose power and duty it was to pass upon the production of the lease, never took a gauge of that production, and he was present when the deal was closed and knew that the east wells were not pumping because the power was not properly- located, and two other wells were not then operating, nor were they completely equipped; and he says he held his peace, when every dictate of duty should impel him to speak, and the commission had grown from $3,000 to $6,500!

In this view, Cook’s statement is not very unreasonable. Marr succeeded Thomas as manager of the leases then owned by plaintiffs, and knew the condition of the property here in question. He met Draper and Thomas at Findlay on the eve of' their departure for Cleveland to close the deal. It is conceded that they asked him to accompany them and that he refused. He says they wanted him to say that defendant’s property was all right and in pumping condition and that he refused. This Draper and Thomas deny. This was the question, or one of the questions, upon which Thomas was to pass. He was to be paid for it, and Thomas was going to Cleveland. But why was Marr asked to go? The evidence does not satisfactorily answer this question, unless it be to shift responsibility from Thomas. This responsibility was one which Thomas then and now was disinclined to assume. The testimony of Major Miller we accept as true. His testimony is clear, direct and reasonable. What attorney is there who would not feel inclined in a transaction of this magnitude to see that the interests of his client ‘ were secure ? And if he started to make any inquiry he would, we believe, ask the very questions he says he asked, and would advise his client not to proceed unless the answers given were direct and satisfactory. That Thomas was averse to answering these questions is doubtless true, but that he was prepared to answer his presence there at that time for that transaction attested. We accept as facts in the case that Thomas, in the presence of Draper, who remained silent, a few minutes before the deal was closed, stated in the presence of Bowler, Jones and others that this lease was then producing forty barrels of oil per day; that it was then in proper operating order except two wells that could be set to pumping for $300; that the property could be made to produce 140 barrels per day and that the central area of the tract had not then been drilled. Bowler and Jones do not now remember this statement, and therefore it does not appear that they relied upon it, but that statement is evidence that Draper before that time, as well as Thomas, had stated these facts as to the production of the property as so many witnesses testify.

October 3, Jones wrote Draper a letter and clearly invited the latter to falsify the production of the lease to a number of persons who would on a specified day visit it. Draper received the letter and filed it away in silence. By this letter Jones may have intended to deceive his associate purchasers or intending purchasers of stock. Draper says he understood that the latter was the purpose. If Jones intended that both himself and his associate purchasers should pay more for the property than it was worth the procedure was folly; if to unload stock on purchasers, it was knavery. There is nothing in the letter or request inconsistent with a belief on the part of Jones that the property would produce and was producing forty barrels daily and that he wanted to show a production above this to secure stock subscribers. If this was the purpose the letter is not here important, for the stockholders are not here complaining. If Jones, knowing the actual production of the wells, sought to defraud his associate purchasers, his partners, these other questions hereafter referred to will arise.

The foregoing is a rather'too extensive statement of the complicated facts and contradictions in this case. The remaining questions are of law arising upon the facts. These are first, as to the double agency; second, as to the fraud.

1. It cannot be doubted in Ohio that an agent under certain circumstances may represent both contracting parties in the same transaction. But to relieve such double agent from suspicion that inconsistent duties have been assumed, which prima facie will be presumed, it is necessary that it should appear that knowledge of every circumstance connected with his employment by either should be communicated to the other, in so far as the same would naturally affect his action. Bell v. McConnell, 37 Ohio St. 396-402 [41 Am. Rep. 528]. In this case either the commission was originally fixed at $6,500 and Jones was misled at all times as to the amount of it, or else when the broker’s work had been all done, when the property, was practically purchased by plaintiffs, subject only to the expert approval of Thomas as to the operating condition and production of the léase, the amount of commission is increased from $3,000 to $6,500. Not only that, but the basis of the commission instead of being the usage of the business, as Jones was informed, was changed to contract. In any case, such increase of commission and •change in the nature of the claim for it, would be “circumstances naturally affecting the action of the agent.” These plaintiffs may have been content for Thomas to receive $3,000 commission fixed by usage or custom on oil sales, when on the eve of the approval of the property by Thomas, they would be unwilling that he should by contract with defendant have the commission raised to $6,500. They are entitled under the rule to be informed of the change in the commission arrangement. They were not so informed, and the change in the arrangement, if not concealed, was not disclosed. The failure to disclose was a “fraud in law” upon plaintiffs, and on account of it, upon plaintiffs’ election and prompt action, the contract will be declared void. Mechem, Agency Sec. 798, and cases there cited. Plaintiffs did not know of this change of commission until this action was brought, and so no claim of want of promptness can be sustained.

2. As to fraudulent misrepresentation, Hendricks admits at one place in his testimony that he misrepresented (page 112). At one place, a moment later (pages 113-114), he says that “they asked me what it was doing and I told them I had run two hundred barrel tanks, ’ ’ but did not tell them what it was then doing. This subterfuge cannot be allowed. It is perfectly evident that Jones and Wilson wanted to know what the lease was then doing; Hendricks knew this and yet he framed his answer so that while true in fact it would be understood by the parties asking the question in a sense in which it was not true.

“No one can evade the force of the impression which he knows another received from his words and conduct, and which he meant him to receive, by resorting to the literal meaning of his language alone.” Mizner v. Kussell, 29 Mich. 229.

Again, Draper knew on the same day that both Jones and Wilson were there to ascertain the then production of the lease. This was September 16, 1902. On that day Draper had a statement of the oil run during the whole month of August in his possession. This would show an average daily production of fifty-three sixteen hundredths barrels. He had also a statement of the production for the first half of August. This showed a daily production of eighty-nine barrels. He showed the latter to the parties. They, desiring a whole month’s statement, instead of producing the one he had, he ordered another from Lima. Under these circumstances it is manifest that both Jones and Wilson would have the right to conclude that the August runs averaging fifty-three and sixteen hundredths barrels was a fair statement of the daily production on September 16. Yet Draper then knew and Hendricks knew apd their employe, the pumper, knew that the average daily run for the first half of September was only seventeen and sixty-five hundredths barrels.

Having given this statement for August, it is perfectly evident from all the testimony, that Draper'proceeded thereafter to operate the lease in a manner in which it would be rendered impossible to know what the entire production of all the wells was. The wells were not all pumped at any one time, nor any of them pumped regularly. It is clear too that Jones and Bowler both believed that the wells would do and were doing more than forty barrels and that Draper knew they believed this, and he was bound to know that from his August statement they believed this.

“Allowing the other party to proceed upon an erroneous belief to which one’s acts have contributed is active concealment tantamount to misrepresentation.” Wald’s Pollock, Contracts 515, citing cases.

The facts of the transaction at Wood & Miller’s law office, too, fasten the effect of misrepresentation upon Draper. The admission too by Draper, that he pointed out a plan in the central area where a line of wells could be drilled, seems to us to account for the belief entertained by the parties and known by Draper to be so entertained by them, that that area was then undrilled.

We think that tfyere can be no serious question in this case that Draper made statements of existing matters, in the respects charged' that were material to the transaction and that were false in substance and in fact; that plaintiffs did not know their falsity, but relied upon their truth and thereby sustained damage. The sole remaining ques~ tion is whether plaintiffs had the right to so rely.

If they did not have such right to rely, it is because (1), having undertaken to make an inspection and examination they were bound to prosecute it to the end; or (2), they were not anthorized to rely upon the statements and representations of defendant; but were bound under the circumstances to inspect and investigate for themselves.

Plaintiffs did go to the lease to see the property. The only one of them all who knew anything of the oil business was Wilson. He says he went as agent for Foster, not here a party. Defendant con-; tends that he was agent for both Foster and Lawall. Since, after Wilson’s examination, Foster did not and Lawall did not invest in the property, we are of opinion that Wilson represented Foster alone.

Now, no one could determine by visiting the lease and seeing the wells what the production of the lease with all the wells pumping was, or would be; in other words, what the aggregate capacity of all the wells then was. The opportunity for an independent investigation was not open to plaintiffs from an inspection on the ground. The furnishing of pipe line statements was within the control of defendant and not within the unaided reach of plaintiffs. From these facts it seems clear that plaintiffs were not compelled to continue an investigation begun, or to begin an investigation, without reference to or any reliance upon the statements of defendant; and this is more particularly the case when, as here, it seems that the opportunity for a full investigation by plaintiffs was interfered with, obstructed and rendered impossible by the active intervention of defendant. It is not to be forgotten that defendant pressed this transaction to a close before all the wells were even -equipped, much less pumped, and that the newest well, the “sand well,” was not pumped for want of power after defendant had tested it and knew its capacity. (See Cottrill v. Krum, 100 Mo. 397 [13 S. W. Rep. 753; 18 Am. St. Rep. 549]; Lahay v. Bank, 15 Colo. 339 [25 Pac. Rep. 704; 22 Am. St. Rep. 407]; Roberts v. French, 153 Mass. 60 [26 N. E. Rep. 416; 10 L. R. A. 656; 25 Am. St. Rep. 611] ; Smith v. Smith, 134 N. Y. 62 [31 N. E. Rep. 258; 30 Am. St. Rep. 617]; Wilson v. Carpenter, 91 Va. 183 [21 S. E. Rep. 243; 50 Am. St. Rep. 824]; Mead v. Bunn, 32 N. Y. 275-280; McClellan v. Scott, 24 Wis. 81-87; Matlock v. Todd, 19 Ind. 130, as to the right to rely upon representations of defendant in the absence of plaintiff’s actual knowledge or unobstructed opportunity for investigation.) If an inspection was prevented or its completeness defeated by the acts, arts or words of the seller, the reliance of the purchaser upon the statements of the seller, the reliance of the purchaser upon the statements of the seller without such investigation or after an incomplete one would be justified. Roseman v. Canovan, 43 Cal. 110, 111; Swimm v. Bush, 23 Mich. 99; Webster v. Bailey, 31 Mich. 36; Starkweather v. Benjamin, 32 Mich. 305; Fisher v. Mellen, 103 Mass. 503 (as to exent of a patent right) ; 1 Bigelow, Fraud 532. We have no doubt in this ease as to plaintiff’s right to rely.

If the letter of October 3, from Jones to Draper is considered as -evidence of .an intent on the part of Jones to defraud his associate pur■chasers, then Jones’ knowledge, if any, that the capacity of this lease was less than forty barrels is not notice to his partners.

“When one member of a firm is committing or consenting to the commission of fraud upon his copartners, notice on his part is not notice to them. ’ ’ Williamson v. Barbour, 9 Ch. D. 505; 2 Pomeroy, Eq. Jurisp. Secs. 674 and 675.

After Thomas entered into the contract or stipulation of November, with Draper, the former’s undisclosed information was not notice to plaintiffs. National Life Ins. Co. v. Minch, 53 N. Y. 144; Atlantic Nat. Bank v. Harris, 118 Mass. 147; Dillaway v. Butler, 135 Mass. 479; Innerarity v. Bank, 139 Mass. 332 [1 N. E. Rep. 282; 52 Am. Rep. 710], Moreover after November 1, at least, the knowledge, as well as the declarations of Thomas as far as this action in concerned, became the knowledge and declarations of Draper, for here a special trust and confidence was reposed in Thomas by plaintiffs as Draper well knew. Laidlaw v. Organ, 15 U. S. (2 Wheat.) 178, 195; Evans v. Bicknell, 6 Ves. Jr. 174, 182; 1 Fonblanque, Equity b—1; c—2, 5, 8. If the said letter of October 3 did not relate to an intended fraud on Jones’ partners, then it is not evidence that Jones knew what the lease was producing except that he did not know it was producing nearly one hundred barrels. In the latter case assuming, as we believe that Jones relied upon defendant’s statements and so relied upon a production of forty barrels and the other matters stated, all the plaintiffs are entitled each in his own right to maintain this action.

If, however, Jones undertook to defraud the other purchasers in-the transaction, the result is not different. The cash paid did not belong-to Jones in whole or part. Stockholders had paid it relying upon the corporation’s ownership of this property, and Draper and Thomas knew this, and on November 8 used the fact to close the transaction. The fund should be restored as against Draper and without regard to-whether Jones had wrongfully assisted to place it in Draper’s hands. The notes signed are executory contracts, and Jones could plead his own fraud known to Draper as a defense to them on suit brought against him by Draper. In pari delicto, melior est conditio possidentis. So-even as against Jones, Draper would have no right to retain the money or enforce the notes, if Bowler and Lawall, or either, were sought to be defrauded by Jones. True by the cancellation- of the notes in such case Jones may escape liability. “But equity will not refuse to aid his innocent copurehasers because of a fraud committed on them by him. If their rights cannot be secured without to some extent relieving him, the innocent must not suffer.” Yeoman v. Lasley, 40 Ohio St. 190-203. The substantive facts warrant full relief to plaintiffs and there is nothing in the procedure in the action to prevent it.

The contract of purchase is decreed to be null and void; the conveyance is rescinded; the money paid, with interest at 6 per cent from the ,date of payment, is ordered to be restored to plaintiffs; the notes described in the petition are ordered to be surrendered up and canceled, and an account is ordered to be taken of the money expended by plaintiffs in putting the lease in a condition necessary to operate, and for the amount so expended in full, together with money expended by plaintiffs in improvements on the lease in so far as said improvements increase the value of the lease as determined on the account to be taken, plaintiffs are decreed to have a lien upon said leases and property. The part of the purchase price paid-in cash, together with interest thereon, is also declared to be a lien upon the 'property. Costs are adjudged against defendant and execution awarded. If possible, parties may agree upon the master to take and state the account; or if not, the court will appoint.

Hull and Haynes, JJ., concur.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    DEEDS — BILLS—DESCENT AND DISTRIBUTION.
    [Lucas (6th) Circuit Court,
    November 7, 1904.]
    Parker, Hull and Haynes, JJ.
    Charles R. Lee, Admr. v. Eleanora S. Scott et al.
    1. Operative Words of Conveyance Required to Engraft Reversion Upon Grant, or to Convey Rehainder in Fee.
    Where by deed an estate in fee simple is granted, the same cannot be reduced to a life estate by another instrument executed concurrently with such deed, purporting to reserve a fee to the grantor in the deed or to convey a fee to another to vest' upon the death of the grantor in the deed, unless such other instrument shall contain appropriate operative words of conveyance of such remainder or reversion.
    2. Word “Heirs” Necessary to Convey Fee Simple, Except.
    In Ohio it is necessary as a general rule to use the word, “heirs,” in a deed to convey an estate of inheritance.
    3. After Acquired Realty'Passes Under Residuary Clauses of Will.
    Where testatrix, at the time of making her will, was the owner of a real estate mortgage by assignment, and thereafter, without resorting to foreclosure proceedings, the land encumbered thereby was conveyed by the mortgagor to testatrix in satisfaction of the mortgage debt, such after acquired land passes, under the general residuary clause of the will devising all the rest and residue of the estate, to the devisees therein named. James v. Pruden, 14 Ohio St. 251, approved and followed; Lepley v. Smith, 7 Circ. Dec. 264 (13 R. 189), distinguished.”
    Appeal.

      I. N. Huntsberger, for plaintiff:
    Several separate instruments, executed at the same time between tbe same parties and referring to the same subject-matter, will be construed together as one contract or transaction, and the effect of one instrument will be held to be limited or controlled by provisions in the other. Thayer v. Luce, 22 Ohio St. 62; White v. Broeaw, 14 Ohio St. 339; 17 Am. & Eng. Enc. Law (2 ed.) 9, 10; 4 Kent’s Commentaries 135, 141; 11 Am. & Eng. Enc. Law (1 ed.) 514; 2 Smith Lead. Cas. 259; Livingston v. Story, 36 U. S. (11 Pet.) 351 [9 L. Ed. 746] ; Jacobs v. Mitchell, 46 Ohio St. 601 [22 N. E. Rep. 768]; Railway v. Railway, 44 Ohio St. 287 [7 N. E. Rep. 139] ; Ruffner v. Evans, 1 Circ. .Dec. 368 (2 R. 70); Dayton & U. Ry. v. Shoemaker, 2 Circ. Dee. 270 (3 R. 473) ; Heintz v. Sawyer, 13 Dec. 719; Gaffney v. Hicks, 131 Mass. 124; Hunt v. Livermore, 22 Mass. (5 Pick.) 395; Rogers v. Smith, 47 N. Y. 324; Draper v. Snow, 20 N. Y. 331 [75 Am. Dec. 408] ; Wilson v. Randall, 67 N. Y. 338; Jackson v. Dunsbagh, 1 Johns. Cas. 91; Tread-well v. Archer, 76 N. Y. 196; Cummings v. Antes, 19 Pa. St. 287; Reed v. Field, 15 Vt. 672; Gammon v. Freeman, 31 Me. 243; Kenyon v. Nichols, 1 R. I. 411; Odióme v. Sargent, 6 N. H. 401; Casey v. Holmes, 10 Ala. 776.
    The following cases show numerous applications of the foregoing rule. Marshall v. Stewart, 17 Ohio 356; Wilson v. Giddings, 28 Ohio St. 554; Wright v. Bates, 13 Yt. 341; Slutz v. Desenberg, 28 Ohio St. 371; Patrick v. Littell, 36 Ohio St. 79 [38 Am. Rep. 552]; Coleman v. Miller, 8 Dec. Re. 179 (6 Bull. 199); Loring v. Melendy, 11 Ohio 355; Fleming v. Donahue, 5 Ohio 255; Broadrup v. Woodman, 27 Ohio St. 553; Paddock v. Adams, 56 Ohio St. 242 [46 N. E. Rep. 1068] ; Harvey v. Gardner, 41 Ohio St. 642; Russell v. Bruer, 64 Ohio St. 1 [59 N. E. Rep. 740] ; Mathews v. Leaman, 24 Ohio St. 615; Stall v. Cincinnati, 16 Ohio St. 169; Miller v. Stokeley, 5 Ohio St. 194; Mannix v. Purcell, 46 Ohio St. 102 [19 N. E. Rep. 572; 2 L. R. A. 753; 15 Am. St. Rep. 562]; Stephenson v. Donahue, 40 Ohio St. 184; Yance v. Park, 8 Circ. Dec. 425 (15 R. 713).
    No particular form of words need be used to create a trust, and the words “trust” or “trustee” need not be used for that purpose. 1 Perry, Trusts Secs. 82, 83; Cresswell v. Jones, 68 Ala. 420; Packard v. Railway, 168 Mass. 92 [46 N. E. Rep. 433] ; Chadwick v. Chadwick, 59 Mich. 87 [26 N. W. Rep. 288].
    Termination of trust estates. Gloyd v. Roff, 1 Circ. Dec. 472 (2 R. 253) ; Taylor v. Huber, 13 Ohio St. 288; Rittenhouse v. Hicks, 10 Dec. Re. 759 (23 Bull. 269) ; Soteldo v. Clement, 11 Dec. Re. 802 (29 Bull. 584); Cornwell v. Wulff, 148 Mo. 542 [50 S. W. Rep. 439; 45 L. R. A. 53]; Elphinstone, Interp. Deeds Rule 101, P. 271.
    The word, “heirs,” is not absolutely essential to pass the legal title in fee, when the express provisions of the conveyance require a fee and the recitals and conditions plainly evidence an intention to pass the ■entire estate, as in the case at bar, an absolute power of sale being infer■entially given Mary and Albert, in 'addition to the provision that the property “shall revert in fee simple.” Brown v. Bank, 44 Ohio St. '269 [6 N. E. Rep. 648] ; Bank v. Johnson, 47 Ohio St. 306 [24 N. E. Rep. 503; 8 L. R. A. 614]; Williams v. Presbyterian Church Soc. 1 Ohio St. 478, 497; Stambach v. Fox, 8 Circ. Dec. 625 (16 R. 427) ; Martin v. Jones, 62 Ohio St. 519 [57 N. E. Rep. 238].
    Enforcement of defectively executed trusts, i Perry, Trusts Secs. 95, 96, 98, 99, 159, 160, 240; Elphinstone, Interp. Deeds 149, 150.
    The deed and lease taken together in this case may be construed as a covenant by Marion to stand seized for the use of Mary and Albert for life, and for Mary in remainder in fee; and such deed is good, though the use is to arise after the decease of the covenantor, and though it does not affect to dispose of the freehold in the meantime. Rigden v. Yallier, 2 Yes. Sr. 252; Doe v. Whittingham, 4 Taunt. 20; Coultman v. Senhouse, Th. Jones 105; Ofman v. Sheafe. 3 Lev. 370; Doe v. Prince, 20 L. J. C. P. (N. S.) 223; 6 Mews. Eng. Case Law Dig. 350; Bryan v. Bradley, 16 Conn. 474; Elphinstone, Interp. Deeds 41.
    Whether the limitation over to Albert in ease he survived his wife, is not repugnant to the prior provision that the property should revert in fee simple to Mary. Finlay Brewing Co. v. Dick, 13 Dec. 581, affirmed by circuit court, without report; Pendleton v. Bowler, 11 Dec. Re. 551 (27 Bull. 313) ; 24 Am. & Eng. Enc. Law (2 ed.) 417, 429, n. 2; Avery v. Everett, 110 N. Y. 317 [18 N. E. Rep. 148; 1 L. R. A. 264; 6 Am. St. Rep. 368].
    The property in question was not ancestral in Albert Scott, whether it came to him through his wife’s will or by virtue of her trust deed to Marion, limiting it over to him in case of his survival. A wife is not the ancestor of the husband. Birney v. Wilson, 11 Ohio St. 426; Brower v. Hunt, 18 Ohio St. 311; Stembel v. Martin, 50 Ohio St. 495 [35 N. E. Rep. 208].
    Ancestral property. Elphinstone, Interp. Deeds 148, 149; Price v. Jenkins, 5 Ch. D. 619; Gale v. Williamson, 8 Mees. & Weis. 405; Harmon v. Richards, 10 Ha. 81; Graves v. Groves. 65 Ohio St. 442, 449 [62 N. E. Rep. 104.41

      When a valuable consideration is .expressed in a deed, the title is. one by purchase, and it is not competent to show by parol that in fact the title came by deed* of gift, and thereby change the descent. Groves, v. Groves, 65 Ohio St. 442 [62 N. E. Rep. 1044]; Brown v. Whaley, 58 Ohio St. 654 [49 N. E. Rep. 479; 65 Am. St. Rep. 793]; Ossman v. Schmitz, 24 O. C. C. 709.
    Parol evidence is admissible to ascertain the object of the parties.' in executing the instruments. Cleveland P. & S. Wks. Co. v. Carbon Co. 25 O. C. C. 307; Brick v. Brick, 98 U S. 514 [25 L. Ed. 256],
    Construction. Wolfe v. Scarborough, 2 Ohio St. 361; Elphinstone,, Interp. Deeds 36, 37 to 41, 76 to 84; Devlin, Deeds Secs. 836, 840; Hickey v. Railway, 51 Ohio St. 40, 48 [36 N. E. Rep. 672; 23 L. R. A., 396; 46 Am. St. Rep. 545]; Railway v. Railway, 44 Ohio St. 287 [7 N.. E. Rep. 139]; Mintier v. Mintier, 28 Ohio St. 307; Hoffman v. Mackall,. 5 Ohio St. 124 [64 Am. Dec. 637]; Walton v. Drumtra, 152 Mo. 489' [54 S. W. Rep. 233]; Jecko v. Taussig, 45 Mo. 167; German F. Ins. Co. v. Roost, 55 Ohio St. 581 [45 N. E. Rep. 1097; 36 L. R. A. 236; 60 Am. St. Rep. 711]; Ashland Mut. F. Ins. Co. v. Housinger, 10 Ohio St. 10; Kelly v. Mills, 8 Ohio 325; Barhydt v. Ellis, 45 N. T. 107; Miller v. Railway, 90 N. Y. 430 [43 Am. Rep. 179]; Elphinstone, Interp. Deeds Rule: 16, 17 and notes; Martin v. Jones, 62 Ohio St. 519, 525 [57 N. E. Rep.. 238] ; 17 Am. & Eng. Enc. Law (2 ed.) 7; Mosier v. Parry, 60 Ohio St-388 [54 N. E. Rep. 364]; Chamberlain v. Railway, 15 Ohio St. 225;. Hildebrand v. Fogle, 20 Ohio 147.
    Clear and convincing evidence is required to divert an estate from the lawful channel of descent. Shahan v. Swan, 48 Ohio St. 25 [26 N. E. Rep. 222] ; Davis v. Davis, 62 Ohio St. 411 [57 N. E. Rep. 317; 78 Am. St. Rep. 725]; Wade v. Loach, 42 Bull. 254.
    See also Challis, Real Prop. 206; Thompson v. Thompson, 17 Ohio-St. 649; 2 Kerr, Real Prop. Secs. 1623 to 1640.
    W. H. A. Read, Marshall & Frazer, C. W. Everettt F. W. SturdL vant, F. J. Flagg, Samuel Foster and Clarence Tinker, for defendant..
   PARKER, J.

This case is in this court on appeal. Primarily it was an action brought by the administrator named to bring to sale real estate, in this city, which he alleged belonged to the decedent, in order that the proceeds might be used to discharge decedent’s debts; but it appearing that, the legal title was not in decedent at the time of his death, or at least not clearly so, the facts in respect thereto are set forth in the petition, and> it is asked that the title may be quieted. There is serious resistance to-this application, for it has aroused the opposition of various interested parties. They are all brought into court and file their answers and cross, petitions, and the issues are made up and the question of the ownership', of this property is submitted to this court; and that is the principal issue: in this case. Certain facts with respect to this property and the relationship of the parties are set forth in the amended petition, many of: which are not disputed. It is therein averred that Albert E. Scott died on September 29, 1903, leaving a will, in which he nominated Mary D. Scott, his wife, as executrix, and by which he devised and bequeathed’ to her all of his property, both real and personal, after the payment of' his debts and funeral expenses, but that his wife died two days before. he died, whereby this devise and bequest lapsed. It sets forth tha amount of the property of the decedent and the amount of his debts,, and about these there is no controversy; it is conceded that the situation! of his estate is such as that this property should be brought to sale to pay these debts, if it was his property.

The amended petition proceeds to state that the decedent left no widow, nor children, nor any deseendents of children, but left as his next of kin and heirs at law certain persons, who are named, and it also sets forth all his heirs on his maternal side as well; that these various persons, as heirs or as devisees under the will of Marion L. Scott, his mother, claim some interest or title to this property which consisted of a single lot with a dwelling thereon, described as lot No. 868 in the Vistula division of the city of Toledo, Lucas county, Ohio; that the property was occupied by decedent in his lifetime as a homestead. And the plaintiff avers that said premises formerly belonged to Frances P. Lyman, mother of said Mary D. Scott, who was decedent’s wife, and that upon the death of Frances P. Lyman she devised the same in equal shares to her husband, James Lyman, and said Mary D. Scott by will duly admitted to probate in said county; and thereafter, on February 16, 1872, the said James Lyman, in consideration of $100, conveyed all his interest in said premises to said Mary D. Scott by deed recorded March 16, 1872, in Vol. 71 of Deeds, page 230, and that thereafter, on January 29, 1883, said Mary D. Scott and said Albert E. Scott, in consideration of one dollar and the execution and delivery to them of the indenture and other considerations mentioned, conveyed said premises to Marion L. Scott, the mother of said Albert E. Scott by deed filed for record on January 31, 1883, giving the date of record, volume and page:

“That while said deed standing alone appears to be absolute upon its face it was not so intended by the parties thereto, but was intended to be and in fact was, only a conveyance of the naked legal title of said property to said Marion L. Scott, to hold the same in trust during her life for the joint use and benefit of the grantors therein, and at her death said legal title was to revert to said Mary D. Scott in fee simple; •that said limitation and trust were duly set forth and declared by an instrument duly executed by all of the said parties at the same time and as a part of the same transaction and as a part of said deed, in the form of an indenture of lease, a copy of which is attached hereto and made a part hereof marked exhibit A and which was filed for record at the same time with said deed and duly recorded in Vol. .C of Leases, pages 571 and 572, of the records of said county.
“That by the' provisions of said deed and said declaration of trust taken together, said Marion L. Scott agreed and covenanted to stand seized of said premises during her life for the use and benefit of said Máry D. Scott and Albert E. Scott, who were to have full and complete possession and enjoyment thereof, and to pay all taxes and assessments thereon, insure the buildings thereon, and make all necessary repairs and alterations and to have the right to sell or dispose of said property in fee simple; and said Marion L. Scott further covenanted therein that in the event of her death said property should revert in fee simple to said Mary D. Scott, the original owner thereof; and it was further covenanted therein between said parties that said Albert E. Scott should have, during his lifetime, a joint interest in benefits arising from rents or sale of said premises or other property bought with the proceeds thereof, and in case he survived his wife, he should then have full and entire use thereof. Plaintiff says that said Marion L. Scott never had any‘beneficial interest in said premises, but that from the date of said trust deed to the time of her death she held only the naked legal title thereto in trust as aforesaid, and that the equitable title.and beneficial ownership thereof was during said interval held by said Mary D. Scott.
“Plaintiff further says that at the time of the execution of said trust deed and declaratio'n, said Albert E. Scott was the only surviving child of said Marion L. Scott, he being the offspring of her marriage with her uncle, Samuel Belden Scott, a brother of her mother, and, said Albert E. Scott was then, and practically all his life had been, and thereafter continued to be, somewhat weak and lacking in physical health and strength, and moderate in capacity, and, therefore, his mother, said Marion L. Scott, was at all times very solicitous about his welfare and took much care of him, making provisions for his needs and advising and assisting him in the management of his affairs; that at said time he owned no real estate and but little personal property, and for a long time theretofore he had lived, and was then living, with his said wife in said homestead property belonging to her, which was substantially all the property she owned, and which continued thereafter to be their home and remained in their possession and ownership until their death; that said Albert E. Scott was about forty years old and his said wife about forty-three years old when said trust was executed, and neither of them had then any children nor any probability of having any, and both in fact died childless.
“Plaintiff further says that, in view of said situation and circumstances of said parties, it was their intention and purpose by means of said trust deed and declaration to secure to the grantors in said deed and protect them in the use and enjoyment of said homestead, and especially to secure to said Albert during his life an interest'in the use and enjoyment thereof and protect him therein. That said Marion L. Scott died on April 30, 1887, and thereupon her trusteeship and title under said deed ceased and determined, and said premises reverted in fee simple to said Mary D. Scott in accordance with the limitation contained in said declaration of trust, and she thereafter continued to own and hold the same in fee simple until September 27, 1903, when she died, leaving a will which was, on October 9, 1903, duly admitted to probate in the probate court of said county, and by which she devised and bequeathed to her said husband, Albert E. Scott, all her real and personal property, subject to the payment of her debts and the erection of a suitable monument for her. ’ ’

Now, upon these allegations, as I have said, there is based a prayer for the quieting of this title and for a sale of the property, and much that I have read and stated is not disputed. It is contended, however, on the part of others interested, and resisting this application, that the consideration of the eonveyaneé from Mary D. Scott and her husband to Marion L. Scott — the mother-in-law of the former and the mother of the latter — was not one dollar simply, and they dispute the construction put upon this instrument, by which it is claimed on the part of plaintiff that she was a trustee; they say that she paid a full consideration for the premises, considering the estate that she allowed to be carved out for the benefit of her son and daughter-in-law, and that she took this legal title fully subject to that estate, which it is said was an estate for the joint lives of the husband and wife and of the survivor of them; that the remainder in fee was vested in Marion L. Scott by the conveyance from Albert E. Scott and his wife to her and that she was never divested of it, and that, therefore, those claiming from her are entitled to this property. Without entering into a lengthy discussion- of the evidence, I will say that we,conclude that the evidence supports the «laim and contention that Marion L. Scott paid a valuable consideration for this property.

We find from the evidence that on February 9, 1872, Mary D. Scott and Albert E. Scott, her husband, and James L. Dickenson, executor of a certain estate which seems to have had some claim upon this property, executed a mortgage to the Northwestern Savings Bank and Depository of this city, to secure a loan-of $2,500; that this mortgage indebtedness amounting when paid to $2,718.50, was paid by Marion L. Scott to the bank; and we find that it had not been repaid to her or to her estate. The instruments conveying this title, referred to in the pleading that I have read, were executed on January 29, 1883 and recorded on January 31, 1883, some eleven years after the bank had received its money upon this loan, and upon the same day the entry of satisfaction was indorsed upon the mortgage and was filed for record, and we find that Marion L. Scott had held it until that time. We have not made a computation of the amount, or what would then be due of principle and interest, but it is clear to us that, considering the estate which we find she had carved out of the property through these instruments, for her son and daughter-in-law, she paid full value for all that she received and retained.

Now, on January 29, 1883, Mary D. Scott and Albert E. Scott executed and delivered to Marion L. Scott a quitclaim deed to this property conveying to her — having regard to the terms of the deed alone — a fee simple estate therein, and upon the same day an instrument in writing was executed by Marion L. Scott to Mary D. Scott and Albert E. Scott, which is denominated upon its face, a “lease,” which appears to have been executed as a part of the transaction in which the deed was given. The deed recites a consideration of one dollar. This other instrument was executed with the formalities required in the execution of a deed. It is this paper which gives rise to the dispute and all the difficulties of the case. It is somewhat uncertain what it was intended by the parties to be. In some of its phases and features it appears to be a lease; in some respects it resembles a deed and in other respects it resembles a testamentary disposition of property, and in others still a contract between the parties respecting property in which they are all interested and not answering to the description of either a deed, lease or will. I shall read this paper: (It starts out with the word “Lease.”)

“This indenture, made this twenty-ninth day of January, a. d. 1883, between Marion L. Scott, of the city of Toledo, county of Lucas, and state of Ohio, party of the first part, and Mary D. and Albert E.* Scott, of the same place, parties of the second part,
‘ ‘ Witnesseth, that the said party of the first part, in consideration of the rent, covenants and conditions hereinafter mentioned to be performed and kept, and the fulfillment of each and every one of them by the said parties of the second part, at the time and in the manner herein specified, do let and lease unto the said parties of the second part jointly during the life of said parties of the second part, or either survivor of the said second parties:
“Town lot No. 8681, Vistula division of said city of Toledo, with all rights and, privileges thereto belonging, from the day and date of this indenture above written.
“The said parties of the second part in consideration thereof do hereby covenant and agree to pay the said party of the first part as rent for said premises the nominal sum of one dollar per year, all taxes and assessments that may be levied upon said • premises, and to insure the building thereon sufficient to cover loss of same and make all necessary repairs and alterations.
“It is further understood and agreed, that in the event of the death of the lessor, party of the first part, the property herein mentioned shall revert in fee simple to Mary D. Scott, a party of the second part, and that said Albert B. Scott, also a party of the second part, shall have during his lifetime a joint interest in benefits arising from rents or sale of said premises or other property bought with the purchase money received from such sale, and in case he shall survive his said wife, the said Mary D. Scott, then he shall have full and entire use of the said premises or of other property derived therefrom and of the-rents and income thereof.
“And he it further understood, that in the event of the death of the last surviving party of the second part, the premises herein mentioned or other premises purchased with the' money received from the sale of said premises, or the money received from the sale thereof, shall be divided by the survivor of the parties hereto, to such charitable or religious institutions of the city of Toledo, as said survivor shall deem best.
“In luitness whereof, the said Marion L. Scott, Mary D. Scott and Albert E. Scott, have hereunto set their hands and seals the day and year above written. ’ ’

They all signed and sealed it and it is duly witnessed, and acknowledged with the formality required of a deed. The claim of the plaintiff upon this instrument, taken in connection with the quitclaim deed, has been sufficiently stated by the reading of the amended petition. ■Others claiming this property or an interest in it are the devisees of Marion L. Scott, who died April 30, 1887, and by her last will and testament, executed January 31, 1879, and certain codicils subsequently executed, devised her estate, and it is claimed by her devisees represented here that she devised this as well as other parts of her estate. The heirs of Albert E. Scott, of the blood of his mother, claim' that this property was inherited by him from his mother; that it did not pass by her devise and, therefore, they claim it by inheritance from him as property coming from his maternal ancestor. The heirs of Albert E. Scott of another branch, and perhaps all of his heirs, claim shares because of his having taken this property, as they aver, by devise from his wife; and the executors of Mary D. Scott claim some interest in the premises, it appearing that there may be some debts of hers to be discharged.

I do not know that I have stated all the claims of all the various parties here, but I have stated as many of them as it will be necessary to consider in the disposition of the case, considering the conclusions at which we have arrived. Now, as I have intimated, we regard this so-called “lease” as a very curious and perplexing instrument. We'think there is no very great deal of difficulty in arriving at substantially what the parties intended or purposed to do, but in certain contingencies there might have been very serious difficulty in giving effect to their purposes and intentions. It seems to us that the purpose was to allow Albert and his wife, Mary, to occupy these premises and have the full use and enjoyment of them during their joint lives, and that the same privilege should follow to ^the survivor of them, and that, at least during the lifetime of the mother, Marion L. Scott, they were to pay the nominal sum of one dollar per year, and that they were also to pay the taxes and assessments and insure the building sufficiently to cover the loss of the same, and that they should make the necessary repairs and alterations.

It may be doubted if there was any obligation resting upon them to do any of these things if they survived the mother, she being recognized as the lessor and the owner by those provisions. Then if they should survive her mother, they were each to have substantially the same interest in the property and the same rights in the property during their joint lives and for the life of the survivor of them, excepting as I say, their interest may have been disencumbered or relieved of this obligation to pay rent, or to insure or to make repairs or alterations, and perhaps-the instrument contemplated a power of sale that might be exercised by Mary D. Scott if she survived her mother, a power to sell and convey that would carry the whole estate, that is to say, the fee simple, and if that is so, we think the same sort of power and authority are conferred upon Albert E. Scott, notwithstanding the fact that with respect to' Mary D. the term “fee simple” is used to describe the estate that she should take; the same dominion and the same right or jus disponendi seems to have been conferred upon the one as upon the other.

, Now this last clause in the instrument has received different interpretations at the hands of different interest hire, but our conclusion is that it means this: that the survivor therein named — not necessarily the survivors of the parties of the second part, that is, Albert and Mary— nor on the other hand, Marion L., the lessor, but the one of the three who should survive the other two shall devote the property to charitable and religious uses; and it amounts to-a sort of a compact between the three, that the estate is not to go to the heirs of any of them, but that the survivor of the three shall dispose of it to charitable or religious uses. ■ “And be it further understood” — there are no words of grant there — “that in the event qf the death of the last, surviving party of the second part, the premises herein mentioned, or other premises, or the money received from the sale of said premises, or the money received from the sale thereof that is, from the sale of the premises bought from the proceeds of the sale of the first — “shall be divided by the survivor of the parties hereto to such charitable or religious institutions of the city of Toledo, as said survivor shall deem best.” And that was not to occur until after the expiration of these estates given to Albert and Mary Scott.

There are no .words in this instrument defining an estate in fee simple; there are no words of inheritance limiting an estate in fee simple either to Albert or to Mary, his wife; there are no apt or operative words of conveyance to effect their transfer of an estate in fee simple; there are no words of grant. The instrument standing alone, wé think it must be conceded, could not have carried any estate beyond the life estates defined; the only instrument here that conveys an estate in fee simple is the quitclaim deed, and in giving effect to this instrument we are not to lose sight of the fact that one is a deed and the other is denominated a lease, and that the scrivener or person who prepared them was a lawyer — Albert E. Scott, one of the parties who seems to have had some notion of the kind of instrument which should be drafted and executed to convey certain estates or interest, though in the use of the terms he seems to have been in some confusion of mind.

It may be doubted if he has accomplished the general purpose which seems to have been'in the minds of the three parties concerned in respect to the remainder after the decease of the survivor: First, because the instrument lacks proper operative words of conveyance to convey the title to anybody after it had been vested in Marion L. by deed; and, secondly, because the arrangement is so indefinite in not pointing out ■any of the institutions, religious or charitable, that were to be the beneficiaries, that it could not be enforced. Had the survivor — who was Albert — undertaken to carry this purpose out by making a disposition of the property for charitable and religious purposes according to the intention manifested here, it might have raised a very different question; it would have raised a question then as to whether there was such a power conferred upon him by the instrument. But he did not attempt to do. that. And what we must determine, if we can, is where the fee simple title was left by this instrument, in the absence of an attempt on the part of anybody to execute any power of disposition that may be confirmed by the instrument.

It is contended by the plaintiff that this instrument should be read in connection with the deed and regarded as defining the trust to be executed by Marion L., or, at all events, as defining the trust pending the execution of which Marion L. was to hold the legal title to this property; but, as I have said, treating of this last provision (and that is all we have to deal with since the life estates have been enjoyed and have expired and have no further interest for us), if it was designed to raise or impress a trust, the trust is so indefinite that a court of equity could not seize upon it and appoint a trustee to execute it.

The same difficulty would meet us should we regard it as counsel for the plaintiff contend we should — as a covenant on the part of Marion L. to stand seized to certain uses. I shall not try to follow counsel in all their various claims with reference to this property and what was possibly intended or possibly accomplished, but, with respect to this claim, it seems to me that it is hardly tenable, owing to the fact that there is no covenant whatever upon the part of Marion L. Scott — not a word of covenant from the beginning to the end of either of these papers. If we should undertake to treat this instrument as a part of the deed, and as limiting or qualifying the fee simple estate conveyed by the deed survivor, or a conveyance to Albert of the remainder if he should be the survivor, then we are again met with these difficulties I have mentioned, to wit, there are no operative words of conveyance; and we understand that operative words of conveyance are required either to engraft a reservation of a fee in reversion upon a grant of a fee simple, or to convey a remainder in fee, in such wise as to reduce the fee simple granted to an estate for life, or anything less than a fee simple. Now, with respect to the necessary operative words, there is something said in 9 Am. & Eng. Enc. Law (2 ed.) 137. I read:

“The granting clause, which is a part of the premises, manifests the grant or transfer, and this is best accomplished by certain operative words peculiarly adapted to that purpose, witb reference to the nature of the deed. ’ ’

And then are given, in a note, the proper and necessary operative words, i. e.

“Operative words of the various forms of conveyance — Feoffment— ‘Give, grant and enfeoff.’
“Gift — ‘Give and grant.’
“Grant — ‘Give and grant.’
“Lease — ‘Demise, grant, and to farm let.’
‘ ‘ Exchange — ‘ Exchange. ’
“Belease — ‘Remise, release, and forever quitclaim.’
“Confirmation — ‘Give, grant, ratify, approve, and cónfirm.’
“Surrender — ‘Surrender, grant, and yield up.’
“Belease — Quitclaim—‘Remise, release, and forever quitclaim.’ * =* #
“Bargain and sale — ‘Bargain and sell.’ * * *
“Covenant to stand seized — ‘ Covenant to stand seized-to the use ■of.’ ”

That some appropriate form of expression is necessary, is therein set forth, and the authorities are there cited. Now, after the part of this instrument which, as I have stated, is clearly, and distinctly a lease, we find that it starts off with not, “I grant,” or like words, which would imply a purpose of conveying an estate from one to another, but “It is understood and agreed” — words of compact; and then the next clause, “And be it further understood,” evincing an amicable arrangement and understanding between the parties, and a purpose to do something which it seems to us cannot be given effect. Neither are the words of inheritance used; and it is the law of Ohio, as we understand it, that to convey' a fee simple estate — except in some special cases — it is necessary to use •the word, “heirs.” There are some qualifications to this, as where the instrument is a mortgage or a will instead of a deed; but, so far as we have discovered, there is no other or further qualification of the common-law rule upon the subject; and this instrument does not contain such word or any equivalent thereof, and it does not convey a fee simple estate to either Mary D. or Albert E. Scott.

Our conclusion is, therefore, that the legal estate rests where the quitclaim deed carried it — in Marion L. Scott. While this will not accomplish exactly what the parties desired with respect to the remainder, it does not defeat any purpose of the parties to the instrument that can affect the interests of any of the heirs claiming here, for there is no intent manifested therein to convey this remainder either to the heirs of Mary D. Scott or to the heirs of Albert E. Scott.

The remaining question is, whether this estate was carried to the devisees of Marion L. Scott, by her will, or whether she died intestate with respect to this piece of property so that it devolves upon her heirs ?

It will be noticed from the transactions and dates that I have given, that this property was acquired by Marion L. Scott through this quitclaim deed, some time after she executed her will. It is therefore claimed by the maternal heirs of Albert E. Scott that her devise did not cover it so that it has descended from her to Albert and has descended from Albert to them. They call attention to the statute of the state upon the subject, Lan. R. L. 9508 (R. S. 5969), which reads:

“Any estate, right, or interest, in lands or personal estate or other property acquired by the testator after the making of his will, shall pass thereby, in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.”

And they cite. Paige on Wills and Jarman on Wills, to the effect that in a devise of realty it was settled at common law that the will could operate only upon property owned by the decedent at the time of the execution of the will and that after acquired property could not pass, and that under such statutes as we have here quoted it has been held by various courts of other states that the residuary clause does not pass after acquired real estate when it is not manifestly and clearly the intention to devise the after acquired real estate. Counsel representing this interest also cite upon that subject the case of Lepley v. Smith, 7 Circ. Dec. 264 (13 R. 189), decided by the circuit court in and for Holmes county, in 1896.

In that case the will under consideration, being made by a husband, contained a clause devising all of his property, both real and personal, to his wife to have and to hold during her natural life and dispose of as she saw fit, etc., and one of the questions in the case was as to the character of the estate she took and also as to whether she took any of the property which he afterwards acquired. This will devising all the property to the wife was made five years before the death of the husband. It gave to her the power of disposition of the fee of the property. The question in the case was, whether by the execution of her will she had exercised this power of disposition; and it was held, upon the peculiar facts of that case, that she had not, and that this after acquired property was not carried to her by the will. But it seems to us that, the case of James v. Pruden, 14 Ohio St. 251, is no nearly like the ease at bar upon all material points involved, and that the general rules therein laid down upon the subject so completely cover the case at bar, that it should control. The syllabus in the case is as follows:

Lee v. Scott.

“Lands acquired after the making of a will disposing of all the testator’s property, owned at his death, for specified purposes, will pass under its provisions.”

Something has been claimed for the phrase, “specified purposes;” but that does not appear to have been used to qualify the rule. Some effect was given to the fact in that case, that the property which was devised was already owned by the testator at the time he made the will — that is to' say, not the precise property, but property which afterward by a change of form, became the property in dispute. It was in the form at the time he executed his will of a claim secured by mortgage, and that was afterwards foreclosed and he acquired the mortgage estate, and reference is made to that in the course of the decision as a circumstance of some influence in the case. And the same is true here; it appears that the interest which Marion L. Scott had at the time she executed her will was the interest of an assignee of a mortgage — substantially the same as the mortgagee’s interest in the Pruden case — , and afterward, in consideration of that, without going through the trouble and formality of a foreclosure, the mortgagors conveyed the legal title to her; and we think that under such circumstances such general provisions as are contained in her will devising all the rest and residue of her estate, covered and operated upon this property as well as her other property; and so we hold that the devisees acquired this property under her will.

Hull and Haynes, JJ., concur.


author: VOORHEES, J.

text:
    HOMICIDE — CRIMINAL LAW —TRIAL.
    [Morgan (5th) Circuit Court,
    November Term, 1904.]
    Voorhees, McCarty and Winch, JJ.
    (Judge Winch of the eighth circuit sitting in the place of Judge Donahue.)
    Wilbur E. Wray v. State of Ohio.
    1. Misconduct op Counsel for State, Wiiat Not.
    In a criminal case, where counsel for the state, in his statement of the case under Lan. R. L. 11054 (R. S. 7300), in good faith refers to evidence he expects to offer in support of the charge against the defendant, and it • turns out that such evidence is incompetent, and is not admitted, or offered, and, objection being made at the time, the court overrules the objection, it is not such an abuse of privilege on the part of counsel and discretion in the court as will constitute ground for reversal.
    2. Failure to Request Court to Charge, Effect of.
    It is not error for a trial court to omit to instruct the jury on a point of law arising in the case unless counsel request instructions to be given on such point.
    8. Homicide — Indictment—Two Mortal Wounds, as to Proof.
    Where in an indictment for murder in the first degree, it is charged that there were two shots fired and two mortal wounds inflicted from which death resulted, the state is not compelled to prove, beyond a reasonable doubt, that either the first or second shot alone produced the death, nor if the death result only from the combined effects or results of both shots, that each of said shots were fired unlawfully.
    4. Homicide — Self-Defense—Moets v. State, 26 Ohio St. 162, Followed.
    Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death, er great bodily harm, and that his only means of escape from such danger will be by taking tbe life of bis assailant, although in fact be is mistaken as to tbe existence or imminence of tbe danger. Morts y. State, 26 Ohio St. 162, followed.
    Error to Morgan common pleas court.
    L. J. Weber and M. C. Danford, for plaintiff in error.
    A. H. Mercer, prosecuting attorney, and C. H. Fouts, for defendant in error.
   VOORHEES, J.

Plaintiff in error was indicted at the October term, 1903, of the court of common pleas of Morgan county, Ohio, for the murder of William Farris on July 31, 1903. At the January term, 1904, of said court, he was tried and convicted of manslaughter under said indictment and sentenced to the penitentiary for the term of six years. Error is prosecuted to this court, and numerous grounds are assigned for the reversal of the judgment. Among the errors assigned, and specially urged as grounds for reversal, are:

1. That the court erred in permitting the assistant prosecuting attorney to make and include improper matter in the opening statement of the case on behalf of state to the jury.

2. That the court erred in its charge to the jury.

3. That the court erred in refusing to give to the jury charges requested by the plaintiff in error.

4. That the verdict of the jury is not supported by the evidence, and is against the weight of the evidence.

There are other errors assigned, but the four above named are the errors urged in argument.

We Will consider the errors in the order named:

1. As to the misconduct of the assistant prosecuting attorney in stating the claims of the state preceding the introduction of any testimony.

The alleged misconduct consists in this: In stating the claims of the state before the introduction of any evidence, under Lan. R. L. 11054 (R. S. 7300) the counsel said, “that defendant (meaning plaintiff in error) brought with him, in addition to this infatuation for the girl, a letter from his wife begging him to return to his home and provide for her and her child, and another from his mother saying to him, that she hoped he would have the honor to go back home, provide for his wife and child, return to the habitation of his little boy, and the abode of his wife.” To which statement defendant by his counsel objected. The court overruled the objection, and exceptions were noted.

The attorney for the state then further stated to the jury the following: “He” (referring to the deceased, William Farris) “was a man who had a right to pay her” (referring to Sadie Gilbert) “attention, and to have her if she was willing.” To which statement objection was made, overruled, and exceptions noted.

Under Lan. R. L. 11054 (R. S. 7300), providing the order of proceeding in criminal trials, among other things, provides, that,

“After the jury is impaneled and sworn, the trial shall proceed in the following order:
“First. The counsel for"the state must state the case of the prosecution, and may briefly state the evidence by which he expects to sustain it.
“Second. The defendant, or his counsel, must then state his defense, and may briefly state the evidence he expects to offer in support of it. ’ ’

The alleged objectionable, statements of the assistant prosecuting attorney were made under the first subdivision of the section, and it is contended by plaintiff in error, that the letters and statements referred to were not competent evidence on behalf of the state, and notwithstanding the fact they were not admitted in evidence, he was prejudiced, thereby, and by the action of the trial court in not sustaining his objections thereto.

This is all that the record shows concerning this alleged error. The plaintiff in error presented no special requests to the court touching these matters, nor did the court in its general charge refer to them. We are to consider the grounds of error raised by setting out the objectionable statements complained of, and that defendant below objected to the’ statements at the' time they were made, and the court overruled the objections.

Was there an abuse of privilege by the attorney for the state, in stating, at the threshold of the trial, matters that were not admitted in evidence in the further progress of the trial, and which could not in any event become competent? We state the proposition thus, because it is the most favorable to the plaintiff in error. This raises the question, whether in a criminal case, where counsel for the state, in his statement of the case under Lan. R. L. 11054 (R. S. 7300), refers to evidence he expects to offer in support of the charge against the defendant, and it turns out that such evidence is incompetent, and is not admitted, or offered, and objection being made at the time, the court overrules the objection, it is such an abuse of privilege on the part of counsel and discretion in the court as to be ground for reversal.

v First, as to its being an abuse of privilege on the part of counsel. Suppose counsel in good faith — .-and there is nothing in this record to show bad faith on the part of the assistant prosecuting attorney — should say to the jury in his opéning statement, that he expects the evidence to show a certain fact, and names the witness or witnesses by whom he expects to prove the same, but when the witness is called he fails to so testify, it would not be claimed for a moment that this would be an abuse of privilege.

Again, suppose the facts or matters referred to, when the whole transaction under investigation is developed, are rendered incompetent for any reason as evidence, would this be an abuse of privilege? We think not.

Would it be an abuse of discretion in the court to overrule objections to such statements in advance of knowing the true or real connection or relation that such matters may have, or bear, on the transaction under investigation?

It is sought to apply the rule here, that is established for the regulation of counsel in the argument of eases, and the discretion of- the court therein, as applied in the ease of Hayes v. Smith, 62 Ohio St. 161 [56 N. E. Rep. 879].

The principles laid down in the case just cited have application to the final argument of the case, after the testimony is closed. Then for counsel to make statements of alleged facts not adduced in evidence, and comments thereon, are irrelevant, not pertinent, and are, therefore, clearly not within the privilege of counsel. We do not think the same strict rule should apply when the counsel is only stating what he expects the evidence will be, or will show.

But if there were a violation of the rule in this case, the judgment ought not to be reversed on that ground unless it appear that there was such abuse of discretion as to have deprived the plaintiff in error of a fair trial (Adams v. State, 25 Ohio St. 584, 586); and this court, being of opinion that this ground of error is not well taken, will proceed to the examination of other assigned errors.

2. That the court erred in its charge.

It is contended by plaintiff in error that the court erred in its general charge in this:

(1) The court did not explain to the jury, as it should, that every person has a right at all times and under all circumstances, and conditions, to carry -a weapon, a revolver, provided it is not concealed.

(2) The court erred in its charge when it announced to the jury, “The defendant admits that he fatally shot William Farris.”

The first objection is not a complaint as to what the court did charge, but what it failed to charge. The plaintiff in error did not ask any such charge as he complains was not given. It is not error for the court to omit to instruct the jury, on a point of law arising in the case, unless instructions are asked by counsel. Taft v. Wildman, 15 Ohio 123; Jones v. State, 20 Ohio 34; Hills v. Ludwig, 46 Ohio St. 373, 375, 377 [24 N. E. Rep. 596]; Hoppe v. Parmalee, 11 Circ. Dec. 24 (20 R. 303); affirmed by Supreme Court, without report, 65 Ohio St. 614; Steen v. Friend, 11 Circ. Dec. 235 (20 R. 459); Mitchell v. State, 11 Circ. Dec. 446 (21 R. 24). This disposes of this question, and we do not stop to inquire whether such instruction would have been proper or not, if it had been requested.

Second, was it error for the court to say, in view of all the evidence, and especially the statements made by the plaintiff in error, that “the defendant admits that he fatally shot William Farris?” Taking the testimony of Wray alone there is no other conclusion to be reached than that he fired two shots from a revolver that he had and held while in a struggle with the deceased, William Farris. The only thing not specifically admitted by the defendant, as to the act of shooting, is as to the effect of the shooting. He contends all through that the shooting was not unlawful because done in self-defense. Did the two shots that were fired take effect in the body of Farris? Did they, or either of them, cause the death of Farris ?

Both of these questions must be answered in the affirmative beyond a reasonable doubt from the evidence. This being so, it could not be and was not prejudicial to the defendant, when the court said to the jury, “The defendant admits that he fatally shot Farris.” If tN shooting was not .unlawful he was not guilty although he fatally shot the deceased.

We think the court followed the statements complained of with correct instructions as to the law of self-defense; and in view of the evidence, and the claims made by the defendant himself, as to what occurred and how it occurred, he was not prejudiced by the court saying that “he admits he fatally shot William Farris. ’ ’

We think there is no error in the charge of the court as given.

3. Did the court err in refusing to give the requests, or any of them, asked by the defendant?

The defendant submitted ten requests, each of which the court refused, and the defendant excepted. The indictment was for murder with but a single count, which charges the crime (omitting the formal parts) as follows:

“That Wilbur E. Wray, late of said county, on the thirty-first day of July, in the year of Our Lord one thousand nine hundred and three, at the county of Morgan aforesaid, in and upon one William Farris, then and there being, did unlawfully, purposely, and of deliberate and premeditated malice, make an assault, in a menacing manner, with intent, him, the said William Farris, unlawfully, purposely, and of deliberate and premeditated malice, to kill and murder; and that the said Wilbur E. Wray, a certain pistol then and there charged with gunpowder and certain leaden bullets, which said pistol he, the said Wilbur E. Wray, then and there in his right hand had and held, then and there, unlawfully, purposely, and of deliberate and premeditated malice, did discharge and shoot off to, against and upon the said William Farris, witn the intent aforesaid, and that the said Wilbur E. Wray with the leaden bullets aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said Wilbur E. Wray then and there discharged and shot off as aforesaid, him, the said William Farris, in and upon the left side of the belly of him, the said William Farris, then and there unlawfully, purposely, and of deliberate and premeditated malice did strike, penetrate, .and wound, with the intent aforesaid, thereby then and there giving to him, the said William Farris, with the leaden bullets aforesaid, so as aforesaid discharged, and shot out of the pistol aforesaid, by the said Wilbur E. Wray, in and upon the left side of the belly of him, the said William Farris, two mortal wounds, the length and breadth of said mortal wounds, and each of them, being to the jurors aforesaid unknown, of which said mortal wounds he, the said William Farris, afterward and on the second day of August, in said year of Our Lord one thousand nine hundred and three, and in the county of Muskingum, and in said state of Ohio, died; and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Wilbur E. Wray, him, the said William Farris, in said county of Morgan, at the time, in the manner and by the means aforesaid, unlawfully, purposely, and of deliberate and premeditated malice, did kill and murder. ’ ’

It is contended by plaintiff in error, as it is charged in the indictment, there were two shots fired, and that the state must prove beyond a reasonable doubt either the first or second shot alone produced the death, but if the death only result from the combined effects or results of both shots, then before there can be a conviction of the grades of crime charged in the indictment, including the grade of manslaughter, the state must show beyond a reasonable doubt, and the jury must so find, that each of said shots were fired unlawfully.

We do not agree with this contention. The testimony in this case shows that both shots were fired by the defendant while he was engaged in a single conflict or struggle with the deceased, and without any discontinuance of the conflict, or either party withdrawing therefrom. The question of the lawfulness or unlawfulness of both shots depends upon the same state of facts and upon the same evidence. From this record it does not appear upon any hypothesis that one of these shots could have been lawful and the other unlawful; therefore, the evidence not having distinguished between the shots it was unnecessary for the trial court to do so in its charge. If in the conflict the defendant unlawfully fired a shot, which produced death, either alone or in combined effect with another shot fired by him in the same struggle, the jury may find him guilty under this indictment.

The indictment is not bad for duplicity, and although the shots were both fired while the defendant and the deceased were engaged in a struggle or conflict, if the defendant unlawfully fired one or both shots, thereby killing the deceased, he could be rightfully convicted of manslaughter, if the jury found death resulted from such unlawful act. Taking this view of the law, the court is of opinion that there was no error in the court refusing each and all of the ten requests asked by defendant, plaintiff in error.

4. That the verdict of the jury is not supported by sufficient evidence.

The defendant was found guilty of manslaughter only; and it is contended by plaintiff in error, that the verdict is not supported by sufficient evidence. The record is a very voluminous one, and we have taken the time, and with care and labor have gone through and carefully examined the whole record. There is much of the record that does not bear directly on the main question, or defense, involved. There are many circumstances introduced in evidence tending to throw light upon the transaction up to the time the final tragedy occurred, resulting in the death of William Farris.

It is contended by the plaintiff in error that when he fired the shots that wounded the deceased, and which it is claimed by the state produced his death, he was acting in self-defense. The evidence is conflicting on this question.

Our Supreme Court, in the case of Marts v. State, 26 Ohio St. 162, held:

“Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger.”

It is contended by the state that when the defendant fired the shots, or at least the first shot, he believed Farris wanted to get from him his “gun,” or revolver, and that he would be able to take the “gun,” and these were the only things he thought of until he fired the shot. In other words, the state contends, from the whole evidence, and the explanation given by the defendant himself, that the reason why he shot was, that he believed Farris would and could take from him his “gun,” and not that he believed and had reasonable ground to believe that he was in imminent danger of death, or great bodily harm, and that his only means of escape from such danger was in the use of his weapon.

The jury found the issue thus made against the defendant, and we cannot, consistently with the rule of law, say from a careful examination of all the evidence that they were manifestly wrong in so finding.

Other grounds of error are alleged, but we do not regard them as being of sufficient gravity to warrant a reversal or extended consideration.

The court has reached a unanimous conclusion upon all the questions involved; and without attempting to review the record in detail, we are of the opinion the judgment should be affirmed with costs. Execution is awarded and the cause remanded accordingly.

Judgment affirmed.

McCarty and Winch, JJ., concur.