text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    THE STATE OF OHIO EX REL. KATHERINE C. MULLIKAN v. EUGENE L. LEWIS, AUDITOR OF HAMILTON CO., OHIO.

      Taxation — Addition of value of new building already embraced in valuation by Board of Equalization — Clerical error — Owner entitled to refunder of taxes paid in such case—
    Where,by a mistake of the county auditor, a sum for a new building returned by the assessor was added to the valuation of land, while the value of such building had already been embodied in the valuation as fixed by the county board of equalization,this is a clerical error,to the correction oí which the owner of the property is entitled,and he is also entitled to a refunder of the amount of the taxes paid by him on such erroneous addition to the valuation of his property.

      Same — Appraisement made on different day than provided by law.

    Although the law requires that the appraisement of real estate in decennial years shall be made as of the second Monday of April, yet it will not be presumed that the _ appraisements were made as of that date when it is shown as a matter of fact that the valuation was made at a different time.
   Smith, J.

In this case the parties have submitted to us what is called an “agreed statement of facts,” but the attorneys for the defendant, while consenting that it is correct, insist that on a trial of the case evidence as to many of the statements made therein would not be competent or relevant; so it is agreed further, that if in the opinion of this court evidence as to these facts would not be admissible,such facts themselves are not to be considered by us, but be stricken out.

We are of the opinion that such facts so objected to might properly be proved in the case, and being admitted to exist, that we should consider them, and in this agreed statement we find that the relator is entitled to the relief prayed for.

The facts briefly stated are these:

In 1889, the relator was the owner of a vacant lot in Clifton, which was on the county duplicate for taxation' that year, at a valuation of eight hundred ($800) dollars. In the fall of that year,the relator commenced the construction of a building thereon, which was completed by June 1st, 1890. At the November election of 1889, Miller was elected decennial assessor for the district in which this lot was situate, and entered upon the discharge of the duties of said office, in March, 1890. At the April election of 1890, Biedinger was elected annual ¿assessor for Clifton, in which this lot was situate, and in pursuance of law made a return of the building on this lot as an unfinished structure, placing a valuation thereon of fifteen hundred ($1,500) dollars, and this sum, with the original valuation of the lot, eight hundred ($800) dollars, was placed on the duplicate for 1890, making the total valuation thereon twenty-three hundred ($2,300) dollars, and taxes were paid thereon for that year.

At a meeting of the decennial appraisers, held at the office of the auditor in 1890, such appraisers and their assistants, including said Miller and his assistants, being present, the auditor gave them verbal instructions to value the land and finished buildings only. The appraisement of relator’s lot and this building was made by the decennial assessor in July, 1890, as a finished structure, the building having been fully completed before the 1st day of June, 1890. The law required him to.make his return on the first Monday of July, 1890, but he did not do so until after December 6th, 1890. He returned the building at $2800.00 and the land at $2400.00

Total valuation. $5200.00

The decennial county board of equalization convened August 11th, 1890, and continued their sessions until November 30th, 1891.

At the April election in 1891, Biedinger’was again elected annual assessor for Clifton, and he made a return as to this structure on relator’s lot, as follows: ■

“Total value of structure, , $3500.00.

“Partial value reported last year to be deducted $1500.00. Amount tp be added to 1891 duplicate for new structures, $2000. Finished.’’

It was further agreed that the minutes of the decennial board of equalization for April 25th, 1891, show that said board was viewing property in Clifton at that time; and that the annual board of equalization of the county for 1891, did not meet as required by law in May, 1891, but did convene August 10th, 1891, and continued in session until September 9th, 1891. The minutes of said last board are silent as to the returns of the annual assessors for 1891,but show that it acted upon certain returns of chattel property of the assessors. Nothing is said therein as to new structures. The assessors of the several townships returned to the auditor the sworn statements of all persons listing personal'property, and new structures, and also a book containing the names of persons listing personal property and new structures, and the new structures returned by the assessors.

The minutes of the decennial board of October 6th, 1891, show that on that day the board was equalizing the value of property in Clifton, and completed the same October 29th, 1891. The minutes of the county board of equalization show that on November 20, 1891, the board certified the value of all property in Clifton for purposes of taxation, the value of relator’s said property being $5200.00, to which was added 5'per cent, by order of the state board of equalization, thus making the decennial valuation $5460.00.

This was sent to the county auditor to enable him to make up the duplicate for 1894, and in making up the duplicate for 4891, the auditor added to said valuation of $5460.00, the valuation of $2000, which the annual assessor for 1891 had returned, and upon this $2000 so added, the relator has paid the taxes for 1891-2-3-4-5 and 1896, in all, $225.36.

In March, 1897, a claim was presented by the relator to the auditor, asserting that the $2000 had been added by some clerical error, and asking that the duplicate be corrected, and that the auditor refer the claim to the commissioners, that the taxes so improperly paid thereon for 1891-2-3-4-5, might be refunded. Thereupon the auditor, on March 30th, 1897, advised the commissioners that he had corrected the duplicate and hád remitted the taxes for the year 1896, and he did issue a warrant for' the one-half of. the taxes for 1896, on the $2000.00, which wasjpaid to relator, and gave her a remit for the other one-half of said1 taxes on the $2000 which became due in June, 1897, and which was credited on said taxes; but afterwardsjthe auditor, on the advice of the solicitor, rejected the claim, and restored the $2000.00 to the valuation, and this action'Js brought to require the auditor to correct the duplicate as to said $2000.00, and to require him’ to submit said claim to the county commissioners.

Frederick Hertenstein, Attorney for Relator.

Bendigs, ForaJcer & Dinsmore, County Solicitors, Attorneys for Defendant.

As hereinbefore stated, we are of the opinionj^that the claim of the relator is an equitable and just one. It is evident on the facts stated, that during all of these years the relator has been paying taxes on $2,000, more than she should have done. That the valuation made by the decennial assessor in July, 1890, after this building was completed, viz: $2800, for the building, and $2400 for the lot, in all $5200, together with the 5 per cent, ordered to be added by the state board of equalization, viz: $260.00, in all $5460, was all that should have gone on the duplicate-of 1891, and that the addition of the auditor of the $2000' for the same structure was wrong.

We think these facts sufficiently appeared from the records of the auditor and of these boards,[and that it was a clerical error which he could and ought to correct, The claim of counsel for the defendant, that it^fmust be conclusively presumed that all appraisements|of|real estate in the decennial year were made as of the second Monday of April, is not well founded, and particularly so, when it is shown as a matter of fact”that the valuation was made at a different time. A decree may be taken as prayed for.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1897.)
    Before Day, Price and Norris, JJ.
    FRANK W. RADCLIFF v. CORA E. RADCLIFF.

      Divorce — Dismissal of petition on ground of insufficiency — Appeal —Sec. 5706 Rev. Stat.

    Where a petition for divorce fails to state a cause of action for that relief, the court, on objection by the defendant, may properly refuse to admit or hear any evidence offered by the plaintiff; and if no leave to amend the defective petition be asked, the court may dismiss it at the costs of the plaintiff, and such order and judgment is not a dismisal of the petition “without final hearing,’’ from which an appeal will lie to the circuit court under sec. 5706 of Revised Statutes, and such appeal should be dismissed.
   Price, J.

The plaintiff sued for divorce in the lower court, and alleged in his petition that he and the defendant were married at Cleveland, Ohio, on the 30th day of June, 1890, and that no children have been born of such marriage, and makes the necessary averments as to his residence in Hancock county to entitle him to bring his suit in that county. It is also alleged that he has provided a comfortable home for his wife and furnished all. the necessaries of life, and in all respects has been an indulgent and^faithful husband.

As the sum of his grievances and ground for divorce, he ' says the wife has been guilty of gross neglect of duty toward him, in this, to-wit: That ever since the 17th .day of April, 1894, she has wholly failed, refused and neglected to perform any of her marital duties, and on that day, left his home and has ever since refused to co-habit with him. He further says there was no just cause or provocation for leaving him, and that she did so without his consent and against his will.

The petition was filed on the 25th day of June, 1896 — a little over two years from the date, the wife left the home of the husband.

The wife filed an answer to the charge made, and alleges the cause of the separation to be the wrongful conduct of the plaintiff.

By cross-petition she asks alimony, and on her motion, new parties were made defendants, to whom she alleges, the husband had transferred valuable stocks and property in fraud of her rights.

The reply traversed the averments of the cross-petition. At the January term of the court of common pleas, 1897, the cause came on for trial, and the certified entry shows the following disposition of the case:

“This day came Frank W. Radcliff, plaintiff, with his attorneys, and also came the said Cora E, Radcliff, defendant, with her attorneys, and thereupon this cause came on for hearing, and the said plaintiff having caused his witnesses to be sworn, offered himself as a witness in his own behalf, who was about to testify, and the defendant, by her counsel, objected to the introduction of any testimony under said petition, for the reason that said petition does not contain facts sufficient to constitute a ground for divorce for said plaintiff, which said motion was argued by counsel, and the court being fully advised in the premises, it is ordered that said motion be, and the same is hereby sustained, and said petition of said plainitff, and also the said cross-petition of said defendant, is hereby dismissed, without prejudice, at the costs of the said plaintiff.”

The plaintiff excepted to the . decision and order of the court, and also gave notice of appeal to this court, and has perfected his appeal.

We have heard the motion of' defendant to dismiss the appeal, and the question is made, whether an appeal will lie, to this court, from the order and decision of the lower court?

The only authority for such appeal in an action for divorce, is found in section 5706 of Revised Statutes, which reads:

“No appeal shall be allowed from any judgment or order of the court of common pleas under this chapter (divorce and alimony), except from an order dismissing the petition without final hearing, or from a final order or judgment, granting or refusing alimony * * * ; when judgment is rendered for both divorcíe and alimony, the appeal shall apply only to so much of the judgment as relates to the alimony. * *”

The controversy here arises over the construction to be given to the order of the court, and the first clause of the section quoted: “No appeal shall be allowed from any judgment or order of the court under this chapter, except from an order dismissing the petition without final hearing.”

It is claimed for the plaintiff that the court did dismiss the petition without final hearing, and hence the right of appeal existed.

The witnesses for plaintiff were sworn, and the plaintiff offered himself as a witness in his own behalf, and objection was made by the defendant to the introduction of any testimony, on the ground that the petition stated no case for divorce. The objection was sustained, and the petition dismissed; and the order was, in substance, a holding that the petition did not contain facts sufficient to constitute a ground for divocre. There was no request for leave to amend the petition, and it would have been an idle ceremony to hear evidence offered by each party, if there was no case stated in the petition,

The plaintiff alleged in that pleading, that the wife was guilty of gross neglect of duty in leaving his home at a certain time and refusing to return and perform her marital duties. Under this form of averment he would establish gross neglect of duty by proving wilful absence. The facts pleaded show wilful absence, but for less than three years, and the husband cannot transform the situation into a case under another statutory name, to-wit: gross neglect of duty.

. The objection to any evidence raised the same question that would have been raised by a general demurrer, and the hearing of witnesses would not strengthen the petition or enlarge its scope.

It is not the usual rule of practice,perhaps, but it is a rule nevertheless, that a party may properly object to the introduction of any evidence to support a fatally defective pleading.

To set out facts making only a part of a cause of action will not justify the admission of testimony to establish an entire, or good cause of action, and failing to demur does not Io3e to the defendant the fight to object to its introduction.

What, then, is the character of the decision and order of the lower court?' Was the petition dismissed "without a final hearing?”

We think not. There was no effort to amend, and the plaintiff thereby chose to go down with his faulty pleading. He had stated his case on which he relied for a decree, and the facts stated were adjudicated and held to be insufficient to warrant a decree. This was a final hearing of the petition, and a hearing of plaintiff's case on the merits, and hence it was not dismissed "without a final hearing.”

What bearing on this question have the words — dismissed without prejudice,” — ■ which are found in the entry?

None, in our judgment. Those words constitute a reservation in favor of the plaintiff to again sue upon the cause of action, and the judgment of dismissal in question, would be no bar to the maintainance of such new action.

The order and judgment of dismissal are none the less final, because of the the words "without prejudice” in the entry.

Black, in his work on Judgments, in sec. 721, says; "Where a bill in equity is dismissed ‘without prejudice,’ the effect of the reservation is to prevent the decree ffom constituting a bar to another suit brought upon the same subject matter.

H. F. Burket, for motion.

A. Blackford, Judge Noble, contra.

“The purport of a decree so framed is, that such dismissal shall not operate as a bar to a new suit which the party may institute. It does not debar the defendant of any defense which he might be entitled to make in the new suit, and confers no privilege on the complainant.”

“In fact, the effect of the reservation is merely to prevent the decree from constituting a bar to another suit brought upon the same title, but it by no means compromits the court as a judicial determination in favor of that title. Nor does it alter the case, that the court erred, by dismissing the bill‘without prejudice, ’ when it ought to have been dismissed finally on its merits.”

If the court below was wrong in the order and judgment, error is the proper remedy,and not appeal.' Motion to dismiss appeal sustained.


author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE WHEELING & LAKE ERIE RAILWAY COMPANY v. JACOB KOONTZ, et al.

      Stoppage in transitu — When right to applies—

    1. The general rule is, that the vendor of goods on credit, may exercise the right of stoppage in transitu on the insolvency of the vendee at any time before there is an actual or constructive delivery of the goods to the vendee.

      Same — Exception—Sale to bona fide purchaser—
    2. An exception to this rule is, when, during the transit the vendee transfers the bill of lading to a bona fide purchaser for value. By such transfer the right of stoppage is terminated.

      Same — Sale for pre-existing debt—
    3. When, before the delivery of the goods to the vendee or his agent, he sells them to the carrier in payment of a pre-existing debt, the carrier is not a bona fide purchaser for value, •and the right of stoppage in transitu still remains in the vendor.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

A petition in error is filed here for the purpose of reversing the judgment of the court of common pleas in an action that was brought by the plaintiffs below, a partnership under the name of Koontz & Phillips, against The Wheeling & Lake Erie Railway Go., to recover the value of certain lumber that had been purchased by the railway company of the Gasche Lumber Company of this city. Koontz & Phillips claimed a right to the property by virtue of being vendors, and by virtue of the right of stoppage in transitu that was vested in them upon learning, as they did learn, that the Gasche Lumber Company had become insolvent.

The case was tried tc the court of common pleas upon an agreed statement of facts, and has been very fully and ably argued here by counsel upon both sides of the case. Judgment was rendered in the court of common pleas in favor of Koontz & Phillips against the railway company, and it was sought to reverse that judgment. The questions that were presented here were very interesting ones, and perhaps I maj say, questions of serious doubt as to which side is correct in their claims in regard to the law of the case. We have given the case a very full examination, having heard it some eight or ten days ago, and having retained it for a more full discussion than we could give it at the time we rendered our former opinions; and with some doubts and uncertainties in our minds, we have arrived at the conclusion that the judgment of the court of common pleas should be affirmed.

The case was assigned to me to deliver an opinion, but since I have had the papers I have read the opinion of the court below in the case, which was evidently prepared with great care. 5 Nisi Prius Reports, 15. It gives a very full and clear statement of the facts in the case, and also a very full discussion and clear statement of what we believe to be the law of the case; it would therefore seem to be a work of supererogation for me to attempt to repeat those statements; for I should- be able, perhaps, to add nothing to what has been said by the judge of the court of common pleas. I should simply cite, if I cited any ad-ditional authorities, the case of Loeb v. Peter & Bro., 63 Ala., 243, reading from page 249 a statement of the (law of the case as given by that court in a case which in •all its leading particulars was substantially like the case at bar; also the case of Lesasseur & Wise v. The Southwestern, found in 2 Woods’ U. S. C. C. R., 35 — a decision rendered by Justice Bradley, of the Supreme Court of the United States.

Swayne, Hayes & Tyler, for Plaintiff in Error.

Marshall & Fraser, for Defendant in Error.

The judgment of the court of common pleas will be affirmed, but with certificate of reasonable cause for filing petition in error.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing.
    A. O. WHITE v. E. F. HERNDON.

      Action on note — Defense part of consideration illegal — Judgment on part admitted to be legal — On dismissal of case by plaintiff as to balance, suit for such balance not maintainable in other state—
    Where an action is brought in another state (Kentucky) on a promissory note for $1,000, and an answer is filed by the defendant assuring that a certain part, viz: $700 of the consideration of said note, was for liquor sold by the payee to the maker thereof, contrary to the law of said state, and therefore,that the note was invalid, and the court rendered judgment against the defendant for $300 as undisputed, and continued the cause for hearing as to the balance of said note, and thereupon the plaintiff dismissed his said action .as to the balance of said note, and after the payment of said judgment the said plaintiff brought an action in this state on said note to recover the balance due thereon, and there was no evidence that by the laws of Kentucky such practice was allowable, the first judgment when pleaded and proved in the second action was a bar to any recovery therein.

      Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

An action was brought by White against Herndon in one' of the courts of Kentucky on a promissory note for $100Q. One of the defenses interposed was that about $700 of the consideration thereof was for liquor sold by the payee of the note to the maker thereof, contrary to the laws of said state, and therefore, that the note was invalid. This was denied by'the reply of the plaintiff. Thereupon the court, acting, as is said by counsel, under the provisions of a statute of that state, (but of which there is no evidence in the record), being of the opinion that about the sum of $300 of the demand of the plaintiff on the note sued on was not disputed by the answer, rendered a judgment for that sum in favor of the plaintiff against the defendant on the cause of action set up in the petition, and continued the case for further hearing as to the balance of the claim. Afterwards the plaintiff came and voluntarily dismissed his action against the defendant. The judgment of $300 against the 'defendant was paid by him.

Thereupon the same plaintiff brought his action against the same defendant in the court of common pleas of this county on the same note, crediting the amount paid thereon after the rendition of the other judgment. The defendant, as one of his defenses, pleaded the former adjudication in bar of the second action. The plaintiff replied that there was no such record. On the trial, the record of the Kentucky court was introduced in evidence showing the facts hereinbefore stated, and it was admitted that the parties in the two suits were the same, and the cause of action the same, with the exception that credit for the amount so paid was given in this second case; and there was no evidence in contradiction or impeachment of the record, and the only question submitted to the court was, whether the judgment in the first case was a bar to the prosecution of the second. As has been stated, there wa's no evidence given as to the law of the state of Kentucky,or of any statute of that state, as to the procedure in cases of this kind; but it was conceded in this court by counsel that there is a statute substantially like sec. 5320 of our Revised Statutes. The court of common pleas, in substance, charged the jury that the judgment in the first case was a bar to the prosecution of the second action, and on the rendition of a verdict for the defendant, a motion for a new trial was overruled, and judgment entered upon the verdict. A bill of exceptions was allowed, containing the evidence, charge, etc., and a petition in error filed, seeking the reversal of the judgment.

If the first action and judgment had been in a court of this state, and the same proceedings had therein, and the second action also brought here, and the judgment in the former action pleaded in bar thereof, and the same evidence offered, could it have been maintained? We think not. The first action was upon an entire and indivisible contrae!. The defense was one which went to the entire cause of action. There was no admission that there was any thing' due upon the note sued on. If the allegation of-the answer in the first action was true, that a part of the consideration of the note was founded on an illegal and unlawful transaction between the parties,' the note was wholly void, and no recovery could be had upon it. 20 Ohio St., 431. Illegality in respect to a part of the consideration of an entire contract avoids it in toto. And the rule is also well settled that in an action brought upon an entire contract, a judgment rendered in favor of a plaintiff for a part of his claim is a bar to any other action brought by him on the same contract And so is a judgment against him in the first action

Did sec. 5320, Revised Statutes,establish any different rule as to this? We think not. It provides that “When all or a part of one or more of the causes of action are not put in issue by answer, judgment may be taken as upon a default for so much of the plaintiff’s demand, as is not put in issue by the answer, upon any or all of the causes of action, without prejudice to the rights of the plaintiff as to that portion of his demand disputed” Clearly, this section does not refer to the case of a suit on an entire demand, where on any ground the defense goes to the whole of the cause of action sued on,as. in this case It must be applicable only to cases in which there are several causes of action, where one or more may be admitted by failure to plead, and one or more are disputed, or where, for instance, a claim is made upon an account consisting of several items, some of which are admitted or not disputed, and others are denied. In either of these or similar cases, the statute does apply, and there may be a judgment for the admitted or not disputed items or causes of action without prejudice to the rights of the plaintiff as to those portions of his demand which are disputed, But in a case where the cause of action is on an entire- demand, and the whole claim is disputed, the section does not apply, and if, from error, or other reason, a judgment is entered for a less amount than plaintiff claims, this, while the judgment remains in force, is a full settlement of the whole claim of the plaintiff on such cause of action. Such would be the law of Ohio, and we suppose everywhere, unless otherwise provided by statute; and there is no evidence of any such statute in Kentucky. And in our opinion,the entry of such judgment would, when properly pleaded and proved, be a complete bar to a prosecution of the same action in the same court where it had been continued for trial, as to such part of the claim as was erroneously considered not to be put in issue.

Mr. Bambnch, for Plaintiff in Error.

Mr. McCoy, for Defendant in Error.

The judgment of the court of common pleas will be affirmed.


author: Day, J.

text:
    (Third Circuit — Hancock Co., Circuit Court
    December Term, 1897.)
    Before Day, Price and Norris, JJ.
    A. J. THOMAS v. J. W. KIRKBRIDE.
    . Oil & Gas Lease — Forfeiture—Not enforeible for indefiniteness—

    A lease of lands for purposes of operating and producing oil and gas found therein, contained the following provision of forfeiture: “Second party agrees to complete four wells the second year, two the first six months of the second year andjiwo of them the last six months of the second year. If the four wells are not completed within the time specified, twenty-two acres of this grant shall be forfeited for each well not so completed” Held:

    (1.) The completion of four wells on the leased lands, within and during the second year, is such a substantial and sufficient compliance with the provisions of the lease, with respect to forfeiture, as will obviate and defeat a forfeiture.
    (2). The stipulation that twenty-two acres shall be forfeited, for éach well not so completed, is entirely too vague and indefinite in the matter of description, and furnishes no reliable data —no certain starting point, from which the twenty-two acres can be measured and accurately located, and for that reason is void for uncertainty.
    Appeal from the Court of Common Pleas of Hancock county.
   Day, J.

In this case, both, plaintiff and defendant claim the exclusive right to operate for and produce oil and gas on a 155 acre tract of land, situate in Biglick township,Hancock county, and known as the Roller farm. Both.claim in virtue of separate and distinct leases, or oil contracts, made and delivered by the owners of the land, on separate and distinct dates. Each lease is made upon a good and sufficient consideration thereunto moving, and is duly acknowledged and recorded. The instrument which forms the basis of plaintiff’s claim is of date July 1897; and that of defendant, of December 1895. These instruments, if valid, supply a substantial basis, upon which to rest the claim of both plaintiff and defendant. There was a question made as to defendant’s ownership of the lease of 1895, but the evidence clearly and conclusively establishes his right to its benefits. Plaintiff does not controvert, but substantially concedes the validity of the lease of 1895, at the beginning and for months after its execution; but asserts the claim that by virtue of certain provisions of forfeiture contained in it, the entire lease has become forfeit; and if not, that then it has become forfeit, at least, in part, and that in consequence of such forfeiture, his lease of 1897 has become valid and subsisting as to all, or a part, of the 'farm in question; the extent of the validity of the lease of 1897, depending entirely upon the extent to which the first lease has become forfeited and void. Forfeiture, either in whole or in part, is denied by the plain tiff, and so the precise question we have for decision is, has the lease of 1895 become forfeit in whole or in part; and, if forfeit, to what extent;

The provisions of the lease of 1895, necessary to be noticed in determining the question presented, are as follows:

“If no well-is completed within three months from this date, (Dec. 18, 1895),then this grant shall become null and void, unless second party shall pay to first party $39,00 in advance for each three months thereafter such completion is delayed.

“Second party agrees to protect the lands contained in this grant against all paying-oil wells drilled on- adjoining property. If the first well is a paying well, a second well shall.be completed by July 1, 1896, and a third well by September 18, 1896. If these three wells are not completed within the time specified, twenty two acres of this grant shall be forfeited for each well not so completed. Second party agrees to complete four wells the second year, two the first six months of the second year,and two of them the last six months of the second year. If the. four wells are not completed within the time specified, twenty two acres of this grant shall be forfeited for each well not so completed.” * * * “If no well is completed within nine months from the date of this grant, this grant' cannot be continued by the rental heretofore named, and is null and void. ”

There is no dispute as to the facts in the case. It is a fact that the first well stipulated for in the lease, was drilled to completion about June 1896. It was not a paying well; neither oil or gas was found therein in any quantity. No other wells were drilled until in August, 1897, and since then, to the time of the hearing in this court, three wells have been drilled, all of them yielding oil in paying quantities.

Considering these conceded facts in connection with the stipulations of the lease for a first well within nine months from its date; and for two wells, in July and September, 1896, if the first well was a paying one, and the conclusion seems imperative that, by completing the first well before the expiration of nine months from the date of the lease, in June 1896, the grant was saved from becoming null and void, in toto, and the integrity of the lease was made absolute for the full term specified therein, subject, of course, to the other conditions of forfeiture contained in it. The first well drilled, not being a paying one, as the stipulation provides, there was no requirement to drill a second and third well in July and September, and the provision for forfeiting twenty two acres for each of the three wells not drilled the first year, was obviated, and no forfeiture can properly be declared on that account.

The provision for four wells the second year, two in the first six months and two in the last six months of the year, and a forfeiture of twenty two acres for each well not completed within the time specified, is not so clear and easily disposed of as the provision for the first year. A more difficult proposition is presented provoking some discussion and some difference of opinion as to the proper disposition of it.

The first part of the agreement is that four wells shall be drilled the second year. That would be easy enough if it were all, but it is not; for following that agreement is a stipulation that two of the wells are to be drilled in the first six months and two the last six months of the second year; and then follows the provision of forfeiture: “If the four wells are not drilled by the time specified,’’ twenty two acres for each shall be forfeit. Which time specified? The second year? or the iirst and second six months of the second year? Plaintiff insists that the time contemplated by the parties, and specified, is the first and second six months of the second year; and that by failing to drill two wells the first six months there became forfeit forty-four acres of this tract of land. That claim is, perhaps, not tenable. It seems more likely the time intended by the contracting parties, upon which a forfeiture should operate in case of failure to perform, was that specified as the second year, and that the division of that time into two parts was directory only, and for the convenience of the parties to the contract. The wording of that provision of the lease seems to enforce this view. The provision is for four wells the second year,and the stipulation of forfeiture is: “if four wells are not completed within the time specified’’ forfeiture shall result,etc. There is no provision of forfeiture if two wells are not completed in the first six months of the second year and two in the last six months. Forfeiture is very rarely decreed or enforced, unless specifically provided for by the contract. To call for such action,forfeiture must be clearly nominated in the contract. It is not believed that by the phrase, “time specified,’’ the parties intended both times, second year, and first six and last six months of the second year; for the two might be inconsistent and conflict and confusion might arise. It is possible to complete four wells the second year, and none of them in the first six months of the year. In such case the driller, would have complied with his contract to make four wells in the second year, and jet suffer forfeiture of a large portion of his leasehold estate, if plaintiff’s contention be correct and is allowed. A majority of the court is of the opinion, that if four wells were completed within the second year, without reference to the first or last six months of that year, it would be a substantial compliance with the provisions of the lease; so much so, that a forfeiture, which is not favored of the law, would not be declared or enforced by any well disposed court, possessing and exercising equity powers and jurisdiction; and the court would be willing on that ground, if there was no other, to rest a decision of the case, adverse to the plaintiff. But a very respectable, minority, Judge Price, is found dissenting from that view, and so we do not base our decision in the case on that ground alone; but as well upon another ground, which seems entirely sound, and upon which the entire court can and does stand; and that is the proposition that the provision for forfeiture is so vague and indefinite that it is void for uncertainty.

There is no particular or definite description by which either of the twenty-two acre tracts can be located. There is an utter absence of any and all data, by which a starting point, from which to measure,may be found. It was suggested by counsel that the Stahl-VanVleck case, 53 Ohio St., 136, at page 147 supplied a rule by which the several twenty two acre tracts to be forfeited might be ascertained and measured. That case, we think, however, does not supply a rule, or even suggest one, or in any way relieve the forfeiture provision of the lease, from the imputation of uncertainty. In that case the court was defining a process or rule by which could be ascertained which one of three described forty acre tracts of land was intended to be operated for gas and oil, under a lease of one acre of one of the forty acre pieces, the one acre to be selected by the owner, and the selection made. Judge Burket, in stating the rule, used the following language:

Geo. H. Phelps, and Henry W. Seney, forplaintff.

John Poe, for defendant.

“If the number of acres contracted to be operated in case gas or oil shall be found, is the same as a subdivision of a section, say 10, 20, 40, 80, or 160 acres, it will be held that the subdivision of the section upon which the well is located, is the land intended to be operated under the lease, Otherwise the land to be operated is to be taken in a square form, with the well as its center, unless the well is so near a line of the land as to make this impossible, in which case the land to be operated will be in a square form including the well, and extending to such line.’’

The rule as stated by Judge Burket is well enough, and would doubtless work as well in ascertaining a tract of land to be forfeited, as land to be operated, if the starting point was definitely stated, as was the fact in the VanVleck case. An acre was selected there where a well was to be drilled; that furnished a definite starting point from which the rule was evolved; but in the case before us, no point was selected or pointed out in any way, where a well was to be completed, either the first or second year; and it is absolutely impossible to find a definite point named in the lease or supplied by parol to enable the court to find a definite point from which to measure any number of acres for forfeiture. In such case the court must decline to declare or enforce a forfeiture on the twofold grounds, that no forfeiture is due, and the provision for forfeiture is entirely vague and uncertain.

The finding will be against the plaintiff, and his petition is dismissed. Defendant’s title is quieted as against the plaintiff, and the plaintiff is required to pay the cost.