author: Frazier, J.

text:
    (Seventh Circuit — Guernsey County, O., Circuit Court
    June Term, 1885.)
    Before Judges Laubie, Frazier and Woodbury.
    The C. & M. R. R. Co. v. Jno. Orme.
    In an action against a railroad company, the service of a summons on a regular ticket and freight agent, at and in charge of an established station, the road being in the hands of a receiver, and such agent having been designated and appointed by the receiver, is not good service.
    Error to the Court of Common Pleas of Guernsey County.
   Frazier, J.

John Orme commenced an action against the Cleveland & Marietta Railroad Company in the court of common pleas. Summons was served, as appears in the return of the sheriff, upon T. C. Clark, a regular ticket and freight agent of the defendant, at Cambridge, Ohio. A motion was made to set aside the service of the summons; the reasons assigned were: “ Because defendant’s railroad and other property, at the time said summons was served, was, and still is, in the custody and under the control of, and its railroad was then and still is being controlled and operated by a receiver, duly appointed and qualified; and the ticket and freight agent, T. C. Clark, referred to in said return, was then, and is now, the ticket and freight agent of said receiver, and not the agent of defendant.”

■ The error assigned is the refusal of the court below to set aside the return.

The bill of exceptions contains the facts. They are substantially, that on the 2d day of February, 1885, an order and decree was duly made and entered by the court of common pleas, by and in which it was adjudged and decreed that Phineas Pease, Esq., was duly appointed receiver of said road; who was thereupon duly qualified by said court, and entered upon the discharge of his duties as such receiver, and took possession and control of said Cleveland & Marietta Railroad and all other property of said railroad corporation ; and thereupon commenced operating and continued to operate said railroad up to and after the time of the alleged service of said summons, in the manner they were alleged to have been served in the return of the sheriff written thereon. When said receiver commenced to operate said railroad, he assumed control of all the employes then in the employ of said railroad corporation, retaining some and discharging others, and so continued from his said appointment until and after said alleged service of said summons. And soon after said receiver commenced operating said railroad, as aforesaid, among others, the regular ticket and freight agent of said railroad company, then in charge of its station at Cambridge, in said county, was removed from said position, and the T. C. Clark, referred to in said return, was appointed by said receiver as ticket agent in his stead, at said station, and thereupon entered upon the duties of- his appointment, and thereafter acted as the regular ticket and freight agent, at said place, and was so acting at the time of said alleged service of said summons.

“ Said receiver required said T. C. Clark and all others employed in the operation of said railroad, during the time aforesaid, who received or disbursed moneys, to execute to him a bond, with sureties, for the faithful discharge of their said duties. The foregoing being all t,he facts relating to the question made by said motion.”

The question may be then made by this evidence, whether Clark, the ticket agent, upon whom the service was made, was the ticket agent of the corporation, within the meaning of section 5044, of the Revised Statutes, which provides : “ A summons against a corporation may be served upon the president, etc.', * * * * and if such corporation is a railroad company, * * * the summons may be served on any regular ticket or freight agent thereof.”

Section 3415 of the Revised Statutes provides, under the head of Receivers: “ When a line of railroad * * has been placed by order of court in the hands of a receiver, who has taken charge of, and is operating the same, * * such receiver may, in his official capacity, sue or be sued in the courts of this state.” * *

Section 3416 provides : “ Actions may be brought against the receiver of a railroad in any county, through or into which the road is constructed, and service of summons may be had upon the receiver, or upon the superintendent of the road, or upon any ticket or freight agent who is in the employment of, or acting for the receiver.” * *

We have referred to the provisions of section 3416 for the purpose of showing that there may be a ticket agent in the employ of the receiver as distinct from the corporation.

In the language of section 5044, the summons may be served upon an regular ticket or freight agent thereof.”

To constitute a good service against a corporation, the ticket agent must be an agent thereof. We refer also to the language of Judge Day, in Meara v. Holbrook, 20 O. S., 145. The main question in that case was, whether an action may be maintained against a receiver for the negligence of himself or his agents. The judge says : “ Nor do we think the receivers can be exempted from liability as claimed in argument, on the ground that they are agents or trustees ; for, as to the public, and their employes, they do not stand in either of these capacities. As to them the receivers had no tangible principal behind them. They were the governing power in operating the road, by virtue of the authority conferred upon them as receivers. From the time of their appointment they had supreme control in relation to the running of the cars on the road. They alone had authority to employ, direct, control, and dismiss the various agents employed by them to operate the road. They hired Meara, as a laborer, to work for them, in the discharge of their duties as receivers. He was their servant, and they could direct his services, or dismiss him at their pleasure. Neither the railroad company, or any one else, after the receivers took possession of the road, could employ, direct, control, or dismiss, any of the employes of the receivers. Since, then, their agent had no other principal, and their servants no other master, the receiver stood in these respective relations to them. The employes of the receivers were their servants, in. the same unqualified sense that they would have been the servants of the railroad company if it had continued to operate the road, and had employed them in the same business.”

Now it should be remembered that section 5044 refers to the ticket or freight agent of the corporation, and that section 8416 refers to the ticket agent of a receiver, and shows, as we think, conclusively, the policy of the legislature of our state, to recognize both the ticket agent and freight agent of the corporation, and the ticket and freight agent of.the receiver. It is not necessary, they say, that a receiver represented a corporation. It is true, in one sense, he represents the corporation; but his authority to act is derived from his appointment as a receiver. He is not there at the election of the corporation.

He is there with a right to exercise the franchises of the corporation, and the statute provides for a suit against him for his' acts and the acts of his servants and employes in his capacity as receiver. -

It will not do to say that because that is a place that would have been filled by a ticket agent of the company or corporation, if it had not been in the hands of a receiver, that service upon him is good.

It should be borne in mind, that the authority conferred upon its freight or ticket agent is a statutory authority, and it must be served only upon the agent thereof, and not served upon the agent of the receiver. For these reasons we are of the opinion that the court of common pleas erred in quashing this return, and for this reason the judgment of the court of common pleas is reversed.

Mathews & Meade, for plaintiff in error.

Steele & Rosemond, for defendant in error.


source: Caselaw Access Project

author: Stewart, J.

license: Public Domain

text:
    (Second Circuit — Clarke Co., O., Circuit Court
    June Term, 1886.)
    Before Williams, C. J., and Stewart and Shauck, J. J.
    William Diehl v. Elizabeth Stine et al.
    1. Where parol evidence is relied on to prove a power of attorney alleged to have been lost, such evidence must be the best that the nature of ■ the case admits of, provided it cleariy and satisfactorily shows the existence, execution and so much of the contents of the supposed deed as will enable the court to determine the nature of the instrument.
    2. Where parties have executed a power of attorney, and under the authority thereof a deed has boon duly executed, neither they nor their heirs or assigns can defeat the title of the grantee in said deed, his heirs or assigns, by proof that said power of attorney was not recorded as required by law.
    Appeal from the Court of Common Pleas of Clarke County.
   Stewart, J.

This suit was originally commenced in August, 1876, by E. G. Coffin and Asa Whitehead, to foreclose a mortgage against Elizabeth and Christopher Stine, her husband, upon a lot of ground 50 feet wide off the east side of lot 214 of Dement’s addition to the town (now city) of Springfield. To this petition Elizabeth Stine as well as her husband Christopher Stine answered, admitting giving the notes, but denying that plaintiffs were bona fide holders thereof; alleging that the notes were given without consideration, by reason of the fact that William Diehl, the original payee who had conveyed to Elizabeth Stine the premises described in the mortgage by a warranty deed, had no title thereto, but on the contrary that the title was in the heirs of Henry Fisher. William Diehl was afterwards substituted as plaintiff in the case. The heirs of Henry Fisher were properly made parties to the suit, and an issue was joined upon the latter allegation of Elizabeth Stine’s answer. Upon this issue the cause was presented to the court. It is admitted that the common source of title in this case was Henry Fisher, and the question is, is the title to these premises still in the heirs of Henry Fisher, or has it passed from them to the grantor of Elizabeth Stine. About the following facts in this case there is no controversy. That in the year 1857, Henry Fisher died in Springfield, Ohio, unmarried, childless and intestate. He left surviving him his mother, Dorothea Fisher, and three sisters, Mrs. Bierman, Mrs. Kragle and Mrs. Fenrick. Dorothea Fisher, his mother, resided with him, and continued to reside in his house after his death, Dorothea Bierman, his oldest sister, resided in Illinois. Mrs. Kragle resided and still resides in Richmond, Virginia, and Sophia Fenrick was with her brother when he died, having removed from Baltimore to Springfield with her family, and was with him during his last sickness. Shortly after her brother’s death she left Springfield, and died in February, 1865, in Richmond, Va., leaving surviving her two children, Lewis and Emma D. Fenrich, now Emma D. Harra. Henry Fisher died seized in fee simple of lots 212, 213, 214 215 in the city of Springfield, comprising about two acres of ground, the property in controversy being part of these four lots. On the 20th of November, 1860, Dorothea Fisher, said to have been acting under a power of attorney, sold and conveyed all of these premises, in consideration of eight hundred dollars, to George Kramer. The power of attorney, if executed, was never recorded. Dorothea Fisher died January 31,1861. Her will bears date December 14, 1860. Sbe divided her property equally between her three surviving children. George Kramer sold and conveyed to William Diehl lots 212 and 214. In September, 1870, Diehl sold and conveyed to the defendant, Elizabeth Stine, the property described in the mortgage upon which suit was brought. Dorothea Bierman having died intestate, her heirs" conveyed their interest in the property to Maria Kragle, Lewis Fenrick and Emma D. Harra. The power of attorney, if it existed, is lost, and there is no controversy but what the eight hundred dollars paid by George Kramer for this property at the time he purchased it, was the reasonable value of the premises.

The settlement of this question is within a very narrow compass. In fact, it depends upon the answer of two questions, and possibly only one. First, did the heirs of Henry Fisher authorize Dorothea Fisher, by power of attorney, to sell and convey their interest in Henry Fisher’s estate ?

If that question is answered in the affirmative, that is the end of this case. If it be answered in the negative, then arises the question: Did they ratify that conveyance, made by Dorothea Fisher, .by knowlingly accepting the proceeds of that estate ? The defense that is sought to be made here— the failure of title of William Diehl in these premises — is set up by Mrs. Stine in her answer. Upon her would rest the burden of proving the failure of title in William Diehl. It seems to us, that the solution of these questions is simply the solution of a question of fact.

The testimony shows, that prior to 1857 Henry Fisher and his mother, Dorothea Fisher, were living upon this property ; that they were engaged in gardening — taking the different vegetables they raised upon this property to market, in Springfield, and there selling them, as one of the witnesses testified, going there together as long as Henry Fisher lived.

Mrs. Bierman, during that time, appears to have visited at Henry Fisher’s house, and Sophia Fenrick was there during the time that Henry was alive and during his last sickness, with her children, and for their benefit an addition was built to the house.

Dorothea Fisher was an old woman when Henry Fisher died, and subsequently to his decease we find that she still continued to cultivate this property, raising vegetables upon it, and taking them to market .and selling them; but, being over 70 years of age, she was obliged within a short time, to give up the gardening of this property; and in 1860, three years after Henry’s death, we find that this deed to George Kramer was executed for the consideration of eight hundred dollars. It is in evidence here (and we think, fully explains the making of this deed) why the deed was made. Dorothea Fisher had no interest whatever in this property. The only persons interested in it were Mrs. Bierman, Mrs. Kragle and Mrs. Fenrick. We are satisfied from the evidence, that they knew that Henry Fisher was the owner of this property, and they seemed to ha^e had a proper regard and a proper love for their mother. They knew, or must have known, that she was too old to work to support herself, and it is very probable, then, that they agreed that she might sell this property for the purpose of obtaining and using the proceeds for her support and maintenance as long as she lived, which could only be for a short time. That after that time, Dorothea sold this property to Kramer for $800, and executed the deed therefor as attorney in fact for these sisters, and applied the proceeds to her own support. It is a fact that she loaned some of this money as soon as she received it, and that she had the note for it when she died. She held the other notes that were given for the purchase-price of this property, in her possession until she died. Shortly before her death, January 22d, 1861, she wrote a letter to Mrs. Bierman, her daughter in Illinois. In reading this letter, we must bear in mind that we have not her original letter, but only a translation of the same. This is such a letter as a Christian mother would write to her daughter when she thought her life was short. In this letter she uses this expression, “ My things have I sold for eight hundred dollars. After my death you shall find out what pleasure you may enjoy.” We say, that clearly tends to show that Mrs. Bierman knew that her mother was about to sell this property; and by this letter the information was conveyed to her that it had been sold, and that after her mother’s death she was to receive the proceeds for it.

In 1861, in February, after the mother’s death, we have a letter written by the Rev. Stroud to Mrs. Kragle, in Richmond, Va., with a request that that letter be shown to Mrs. Fenrick, the other daughter of Dorothea Fisher.

Much stress has been laid, in argument, upon the fact that the Rev. Stroud speaks of the property as Mrs. Fisher’s place- — " her place.” But we would call counsel’s attention to the entire sentence in which that phrase occurs: I suppose that you have heard that she had sold her place.” Now that seems to indicate to us, that the Rev. Stroud, who knew of this transaction, wrote to this daughter and her sister upon the supposition that this information had already been conveyed to them that their agreement with their mother, that she might sell this place, had been carried out. In fact, we find, from the letter to Mrs. Bierman, that such information had been conveyed to that daughter by the use of this phrase “ my things have I sold.” This property was devoted bjr these children to their mother’s support. It was to be her property and for her use, and it was for that special purpose they treated it before she died as her property, for her support and for that purpose only, and therefore it is spoken of in this way, and treated as her property. Now, then, was there any power of attorney executed authorizing Dorothea Fisher to convey this property, for it is assumed that there was by the recitals of this deed. Several of the witnesses in this case, particularly the heirs of Henry Fisher, have been examined more than once. There are statements found in their testimony one way, and statements another way. In examining their testimony, we must consider the lapse of time which has ensued since the transaction occurred yet it clearly appears that all of them, either in their depositions (that is, Mrs. Bierman and Mrs. Kragle, for Mrs. Fenrick’s deposition is not here), or by admissions to other parties, have stated that they did give to their mother some authority to sell this property. Now, unless they did do this, unless there was some such authority given by these heirs to their mother as would amount to a power of attorney, we have only the other hypothesis which has been argued, and argued strenuously by counsel for the heirs, that this paper, which purported to be a power of attorney, was a forgery.

That such a paper existed there is no manner of doubt. ¥e do not understand counsel to claim that there was not in existence, at the time this deed was drawn, a power of attorney purporting to be signed and executed by these heirs; for the contrary claim would presume either gross negligence or willful criminality upon the part of the draftsmen of this deed, and we do not think it is necessary to defend him against any or either of these aspersions. Now then, if there was a forgery, who concocted it and carried it out? We must presume that either the Rev. Stroud did it, or Dorothea Fisher did it, or both together; and we think that the statement of that proposition, in view of the character of those parties as it is shown in the evidence before us, is a refutation of the claim. We are referred to the case of Gillmore v. Fitzgerald, 26 Ohio St., 171, in order to support the claim of counsel for the heirs, that there is before us no proof of the execution of any power of attorney,— granting that the paper was signed and that the paper was before the draftsmen of the deed, — there is nothing in the evidence before us, it is insisted, to show us that this paper was properly signed and properly executed. This decision is to the effect that where parol evidence is relied on, such evidence must clearly and satisfactorily show the existence of a supposed deed. On examination of the case in 26 Ohio St., we learn that the witnesses, who were produced to testify as to the execution of that deed and as to its contents, were witnesses not at all familiar with legal documents. Again the testimony was adduced within a very few years, one or two, subsequent to the time when it was claimed that the deed was executed. In this case the conditions are different. We have a lost paper, the contents of' which, and the effect of which, are sought to be proved: executed in 1860, twenty-six years ago, and it seems to us that we must examine the testimony adduced, as to the contents of that paper, in the light of all the circumstances of the case, and not that testimony must be adduced before us, determining with absolute certainty what the contents of the document were; who the witnesses were, and who the officer was before whom the acknowledgment was taken. It is only necessary that the best evidence which the nature of the case will admit of, must be adduced. We have before us the admissions of these heirs as to some paper having been signed before an officer. We have the testimony of the draftsman of the deed, who, upon the receipt of this paper, admitting that he was not familiar with such a paper, examined it as a lawyer and examined the authorities to see whether this instrument was properly executed, so as to convey to the grantee therein the power to convey the premises therein described, and upon that examination he found that there was before him, a proper, legal and sufficient power of attorney. He says, upon his examination as a lawyer, that there was a proper and properly executed power of attorney, and that the description in the deed was a copy of the description in the power of attorney. We therefore think, that the conclusion is irresistible that this power of attorney did exist, and that it was properly executed, and that the deed, executed in pursuance thereof, was such a deed as conveyed the title to this property to George Kramer. Now, it is said, that this power of attorney was not recorded, and we are cited to the section of the statutes that provides that a power of attorney shall be recorded before a deed conveying the property is recorded. We hardly think that these heirs are in a position to claim any advantage from that defect. If they executed this •power of attorney, and if this deed was executed to George Kramer in pursuance thereof, it matters little to them whether a record was made of that power of attorney or not. We further find, that these parties received the purchase-money from this land. Every dollar of this consideration money went into the hands of Dorothea Fisher, and every dollar of it was distributed to these heirs; we think they received it knowing exactly where it came from; that it was the proceeds of these lots in Springfield which belonged, in his life-time, to Henry Fisher.

F. M. Eagan, for plaintiff in error.

W. E. West, Geo. Spence and A. E. Gillett, for defendant in error.

A decree will be entered in this case for the plaintiff.


author: By the Court.

text:
    (Seventh Circuit — Guernsey County, O., Circuit Court
    June Term, 1886.)
    Before Judges Laurie, Frazier and Woodbury.
    James B. Johnson et al. v. Annie C. Johnson.

      Ante-nuptial Contract — What insufficient to bar Dower.

    Error to the Court of Common Pleas of Guernsey County.
   By the Court.

Annie C. Johnson filed her petition against James B. Johnson and others, the heirs of Thomas Johnson, deceased, to have her dower assigned in the lands of which the latter died seized. She alleges coverture, and makes a case in her petition showing her right to have dower assigned. The heirs set up an ante-nuptial contract between said Annie and Thomas, in bar of her right. To that answer a demurrer was sustained in the common pleas, and judgment rendered for plaintiff. The sustaining of that demurrer is alleged for error. This presents a single question: Are the facts set up in the answer sufficient to bar the widow’s right to be endowed?

The answer sets forth, .that shortly prior to her marriage with Thomas Johnson, there was a marriage contract entered into between plaintiff and him, in writing; that plaintiff was of mature age, sound understanding and under no restraint; that she was an elderly lady and a widow; that she was substantially without property, and without the means of main-, taining a comfortable home for herself; that Thomas Johnson was in his seventy-seventh year, and of delicate and feeble health, and was the father, by a former marriage, of nine children, seven sons and two daughters, and was the owner of the premises described, consisting of 366 acres of land, situate in Guernsey and Belmont counties, which were, not then and are not now considered very valuable lands. Plaintiff, prior to and at the tim-e of making said contract, had full information and knowledge as to the property and financial condition of said Thomas Johnson, and desired to marry him to secure to herself the comforts of a home, and the provisions he was willing to make for her in the event of their marriage. He was unwilling to marry her unless and until there was an agreement and settlement of plaintiffs rights in and to his property in case of marriage. The terms of such adjustment and settlement were fully discussed and agreed upon, as hereinafter stated. Said Johnson agreed to enter into said marriage only on condition that plaintiff would agree and bind herself, in the event of his death and her survivorship, to receive a certain sum of money in full of her rights and claims as widow, which sum was fixed and agreed upon between them. On the 2nd day of March, 1882, plaintiff, freely and voluntarily, and with free knowledge of all her rights in the premises, and for the purpose of effecting a marriage with Johnson, and securing to herself the comforts and advantages resulting therefrom during their joint lives, in addition to the money named in said setlement, entered into an ante-nuptial contract with him, wherein it was agreed that they would marry, and that in consideration of said marriage, he therein agreed to pay or cause to be paid to her, the sum of $700 in two years after his death, which plaintiff therein accepted in lieu of her dower and expectancies in his estate; further agreeing to sign all deeds Johnson might wish to make in his life-time. Whatever plaintiff brought with her, was to remain hers. A copy of said contract is attached, and made up out of the answer, omitting the formal parts, it is as follows :

R. W. Anderson and I. H. Southard, for plaintiffs in error.

Steele & Rosemond, for defendant in error.

“ That the parties mentioned (Thomas Johnson and Anna Hammond) have mutually agreed to join in the bonds of wedlock, and that the said Thomas Johnson agrees to pay or secure to be paid, out of his estate, by his executors, after his demise the sum of $700, in two years after his demise, and she accepts that in lieu of expectancy of dower in my estate. Now, if the said Mrs. Hammond should be called off this stage of action before the said Johnson, then in that event this obligation will be void; otherwise will be in full force. Also, the said Mrs. Hammond agrees to sign all deeds and conveyances said Johnson may wish to make during his life-time; and further, whatever the said Mrs. Hammond brings with her to said Johnson’s home, to be taken away after his decease.”

This is signed, sealed and witnessed. The answer then goes forward, and alleges the marriage, March 4th, in pursuance of the contract; that both parties fully performed the conditions of the contract during their joint lives; and the death of Johnson July 21st, 1884. That by his will Johnson provided for the payment of said $700, and that his executors are ready and willing to pay the saike to plaintiff in pursuance of said contract.

Held, that the answer is insufficient; and that the court of common pleas did not err in sustaining the demurrer to it.

Judgment affirmed.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1886.)
    Before Judges Cox, Smith and Swing.
    J. G. Stowe, Receiver, etc., v. The First National Bank of Hamilton, Ohio.
    1. Where a partnership borrows a sum of money from a bank, giving a note therefor, and by the terms of said instrument, pledging as collat- . eral security for its payment, a promissory note, for a larger sum, belonging to said partnership, which is also indorsed and delivered to the bank, and the instrument of pledge only gives to the bank the right to hold it as collateral for the note so executed to it, the bank has not a banker’s lien upon the residue thereof, or the right to appropriate it, or any part thereof, to the payment of another note indorsed by said partnership to the bank, before the pledge of the collateral, and which still remains unpaid and on which the firm is liable to the bank, — these being the only transactions appearing to have been had between the said parties. In such case the bank must stand on its written contract.
    2. After the dissolution of such partnership by the death of one of its members, and the appointment of a receiver therefor, an action was brought by the bank on the pledged note, and the receiver was made a party, and set up his claim for a judgment against the makers of the note, for the amount that would be left after the satisfaction of the note for which it had been pledged, and to this extent denying the ownership of the bank to the note. The bank replied, setting up its banker’s lien on such residue for the other note. By consent the whole amount due on the collateral note was paid to the bank without prejudice to the rights of the receiver, and was more than sufficient to pay the note for which it had been pledged. The bank filed an amended reply alleging the receipt of the money by it, but setting up as against the receiver’s right to it, the other note by way of set-off.
    This cannot be done. The claim the receiver was asserting, was one against the makers of the collateral note; and when the bank received this, it was money had and received to his use, and became a claim against the bank, and could not be offset by a claim against a dissolved partnership. The rights of the parties must be adjudicated as they were at the commencement of the litigation, except so far as they may have changed them by consent.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The admissions made in the pleading and the written agreement of the parties made part of the record, by a bill of exceptions, show the following state of facts :

On April 11, 1885, the First National Bank of Hamilton, 0., commenced an action, and sought to recover a judgment against Patterson & Stearns and others, as makers, and Wm. H. Hill and T. E. Spooner, partners as Wm.- H. Hill & Co., and Jos. C. Smith, as administrator of the estate of Wm. H. Hill, deceased, as indorsers of a promissory note for $10,000, dated April 7, 1884, due twelve months after date, and bearing 8 per cent, interest from date, payable to the order of Wm. H. Hill & Co., and by said partnership indorsed in blank. And the petition also alleged that said note was duly endorsed and transferred for value before due, by said Wm. H. Hill & Co. to the plaintiff, which is still the owner thereof. That said note not being paid at maturity, it was duly protested for non-payment, and said Wm. H. Hill & Co.-, and Smith as administrator of the estate of Hill duly notified. Judgment was asked against all, for $6,177.72, the balance said to be due thereon, with 8 per cent, interest from February 21, 1885.

No defense was made to this action by any of the makers or indorsers. W. H. Hill had died January 29, 1885, insolvent. His death dissolved the partnership of W. H. Hill & Co., and on March 11, 1885, in an action prosecuted for that purpose, J. G. Stowe wasappointedasreceiverfor the firm, and having been made a party to the action, he filed an answer and cross-petition May 9, 1885.

In it, he alleges his appointment as such receiver, and denies that the bank is the owner of the whole of the note sued on, and sets up this state of fact, which is admitted to be true.

He says that on January 19, 1885, W. H. Hill & Co. had executed to the bank their note for $7,000, due 30 days after date, and to bear interest at 8 per cent, after maturity. As a part of' the note was this agreement or recital, after the promise to pay, and before the signature thereto, viz: “ having deposited or pledged as collateral security ‘for the payment of this note, a note for $10,000 signed by Patterson & Stearns, and others,1 dated St. Marys, O., April 7, ¿884, payable 12 months after date. And we hereby give to the holder hereof, full power and authority to sell or collect at our expense, all or any part or portion thereof at any place in Cincinnati or elsewhere at public or private sale, at holder’s option, on nonperformance of the above promise, and at any time thereafter, and without advertising the same, or otherwise giving to us any notice. In case of public sale, the holder may purchase, without being liable to account for more than the net proceeds of such sale.

W. H. Hill & Co.”

The receiver then alleges, that there is due on this note of $7,000, executed to the bank, a balance of only $5,000, with in-' terest from February 21,1885, and that to his extent only has the bank any lien upon, or right to the note of $10,000 sued on, and that the residue of such collateral note belongs to him as such receiver. And he asks that the plaintiff may have a judgment only for the amount due it on the $7,000 note, and that he as receiver may have a judgment for the balance then due upon such collateral note.

The original reply of the plaintifi to this answer and cross-petition was filed May 11, 1885, and admitted that it held the $10,000 as collateral security for the $7,000 note, but further claimed that it also held it as collateral securety for another note made by W. H. Hill & Co. to J. C. Symmes for $1,000, dated November 12, 1884, due in 90 days, and indorsed to the bank by said Symmes, Thos. Spooner and W. H. Hill, and which not being paid at maturity was duly protested, and is yet unpaid.

On July 13, 1885, after this issue was made, by the consent of all the parties, the bank was allowed to take a judgment against the makers of the collateral note, for the balance due, $6,172.72, to bear interest from June 1,1885. It was found by the court that the bank had a lien upon it for the balance due it on the $7,000 note, and all other questions between the bank and Stowe, receiver, were reserved for future decisions.

This judgment was then by consent of parties paid to the bank by the makers of the note, and the controversy is now as to the disposition of the residue thereof, after paying the amount due on the $7,000 note; this balance was about $1,172.72.

After payment of this judgment to the bank, it filed, Nov. 25, 1885, an amended reply to the answer and cross-petition of Stowe.

First. It set up that it held the $7,000 note, as set forth in the answer of Stowe, and then alleged that on November 12, 1884 (before the giving of the $7,000 note), Hill & Co. had executed to Symmes the $1,000 note mentioned in the original reply, which was afterwards indorsed to and was then owned by the bank, and was still unpaid, and that the plaintiff had a banker’s lien on the $10,000 note or its proceeds after collection to secure the $1,000 note.

And second, by way of counter-claim and set-off, it alleges that having since the filing of the former reply, collected the balance due on the $10,000 note, and having applied sufficient of it to the payment of the balance on the $7,000 note for which it was pledged, that they had also applied $1,000 thereof to pay said $1,000 note, which left in their hands only $172.72, which they were ready to hand over.

On this state of fact admitted and agreed to, the court of common pleas adjudged that the bank had the right to apply the balance to said $1,000 note, and ordered it to pay the balance, $180.73, to the receiver; and this is the judgment which the latter seeks to reverse.

Only two questions arise, or have been argued: First, had the plaintiff a banker’s lien on the collateral note or its proceeds for the security of the $1,000 note?

And second, if not, as the bank had collected thereon, after the issue joined between it and the receiver, enough to pay the $1,000 note, can the bank as against the claim of the receiver, set off the $1,000 note against the claim the receiver was asserting against the bank ?

First, as to the banker’s lien; it is perfectly plain that by the terms of the contract itself, the bank acquired no lien on the $10,000 collateral note to secure the $1,000 note before that time executed. There is no allusion in it to such a note, and it is manifestly pledged only for the $7,000 note.

It seems equally clear that the bank had no general lien upon it for the security of the $1,000 note — so far as appears by the evidence, these two loans from the hank are the only transactions Hill & Co. ever had with it. There is no claim that they were depositors there, or had a running account with it, and it is doubtful whether they occupied such a relation to each other as would give any suoh general lien. This doctrine of lien is thus stated in Grant on Banking, 244 : “ Unless there be an express contract, or circumstances showing an implied contract inconsistent with the principle of lien, bankers have a general lien on all securities deposited with them as hankers by their customers.” We doubt whether the firm of Hill & Co. were customers of the bank in the meaning of the law.

But whether this be so or not, we think it clear in the light of the authorities, that such lien does not arise, as stated in the quotation just made from Grant, “where there is an express contract, or circumstances showing an implied contract inconsistent with the principle of lien.” Or, as the doctrine is succinctly stated in Colebrook on Collateral Securities, section 62: “Where funds or securities are deposited with a banker as collateral security to cover a special advance or discount, the lien of the banker thereon is limited, and is discharged upon repayment of such special advance. And a claim of a banker of a general lien for balances, or on account of other loans, upon such funds or securities, is not supported where a contract for the special appropriation thereof is established,” and the same doctrine is laid down in Grant on Banking, 245.

And in 17 Ohio, 576, the court in deciding the case of Gordon v. Kearney, quote approvingly the language of the supreme court of the United States, 17 Peters, 174, as follows : “ It has been long settled that whenever a banker has advanced money to another, he has a lien on all the paper securities which are in his hands, for the amount of his general balance, unless such sureties were delivered to him under a particular agreement.” In this case it is not controverted but that there was a special contract of pledge, and we hold that the bank had no lien on this note to secure the note of $1,000.

Such being the case, it is clear that the bank held it as the trustee of Hill & Go., and on receiving the amount of the note for which it was pledged, it was its duty to return the note itself, if still held by it, or if it had been paid, to return the amount (over and above the amount of the note to secure which it was pledged) to the pledgor.

The note of $7,000 had not been fully paid at the time of the bringing of the action by the bank on the collateral note. But the amount due on the collateral note was much greater than the amount due on the note, to secure which it was pledged. The bank therefore held it as trustee to collect, and apply the proceeds, first to the payment of the balance due on the $7,000 note, and then pay the balance -to Hill & Co., or their assignee, and of course did not own the whole note absolutely. It appearing that the receiver was asserting a claim to some part of the note, he was made a party and set up his right to it. This was proper practice as held in Osborn v. McClelland, 43 Ohio St., 284. In the fourth paragraph of the syllabus in that case it is said: “ So the real owner may intervene and by cross-petition obtain the relief to which he is entitled, as against the indorsee or holder, who is the appar- ' rent owner.” And we see no reason to doubt that the same would be the case, where, as in this instance, a claim is asserted that he is the owner only of a part interest therein.

And by the issue as first made, the question was, whether the receiver was entitled to a judgment against the makers of the note for his interest therein, subordinate of course to the prior right of the bank. And on the facts of the case we think he was.

But as by consent of all the parties, the whole amount of the judgment was paid to the bank, the circumstances of the parties changed somewhat and gave opportunity to the bank to set up its claim by way of set-off, or counter-claim — for as the bank had received the money, the claim of the receiver must be asserted against the bank for money had and received for his use. And the bank now seeks to set up as against this claim, the $1,000 note it held against Hill & Co., though in the amended reply it says it had paid it off with the amount thus received on this judgment. Can this be done?

It seems to us that it cannot, and for these reasons: The rights of the parties should be adjudicated as they stood at the time of the commencement of the suit, except as they have agreed to change them, by litigating as to the proceeds of the note, instead , of the note itself. As we have held, Stowe was entitled to a judgment against the makers of the note, for the amount over and above that sum necessary to pay the claim of the plaintiff for which 'it was pledged, and by the reception of his money by the bank, it became indebted to him therefore.

If Hill & Co. were prosecuting this action against the bank, there would be much more foundation for the claim that the latter could set off the $1,000 note against it. But it is to be noted that the partnership of Hill & Co. had been dissolved prior to the commencement of this action by the death of Hill. In the next place a receiver had been appointed for the partnership, and to him, its assets has been transferred. What was transferred to him was an interest in this collateral note against the makers, not a claim against the bank — and he was entitled to recover his interest from the makers of the note. If before the dissolution of the partnership, on the transfer to the receiver, the bank had collected all of the collateral note, and thereby was indebted to Hill & Co. for the surplus over the amount necessary to pay its claim for which it had been pledged, and at that time held the note of $1,000 against the partnership, the right of set-off would be complete. But such was not the case — the obligation of the bank to pay, was to the receiver; for the money due to him was paid to the bank after his appointment.

We incline to the opinion that as to matters of set-off, a receiver stands, substantially, in the position of an assignee for the benefit of creditors, or of an administrator of an estate, though we have not examined this question, and do not say that such is the case. If this be so, it is plain that there could be no set-off in a case like this. It would be a right acquired by the bank after the assignment. But if a receiver does stand in a different position from the other trustees named, as to the right of set-off, yet for the reasons already stated, and the additional one, that as we understand it, it is a plain and familiar principle of the law, that after the transfer of a claim by one person to another, and the commencement of an action thereon, the person so sued can not setoff against it a claim acquired by him after suit brought, or acquire a new right of'set-off. The rights of the parties as I have already said, are to be adjudicated as they stood at the commencement of the action, except so far as they may be changed by consent. And as this claim to this note was a claim of this receiver upon the note and against the makers of it, and the bank received it for him, he has a valid claim against it for the amount, not subject to be reduced by setting off a note the bank holds against his assignees.

Messrs. Black and Rockhold, for plaintiff in error.

Judge M. B. Hagans, for defendant in error.

The judgment of the court of common pleas will therefore be reversed with costs.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan’y Term, 1886.)
    Before Judges Cox, Smith and Swing.
    Yager, Adm’r of Adams, dec’d, v. Greiss et al.
    1. Whether a judgment of a justice of the peace is sustained by the weight of the evidence, is a question which can not be reviewed on error by the court of common pleas — but the question whether there was any evidence offered, on a point essential to be shown by the plaintiff to obtain the judgment, may be.
    2. In an action against an administrator of an estate on an account alleged to be due from his intestate, it is essential to provo a presentation of such claim to the administrator, and its rejection, or what is equivalent thereto, by him; or to show some other reason why the administrator is liable to be sued, notwithstanding the provisions of section 6113, Eev. Stats.
    3. In such an action, where it was sought to show a rejection of the claim, and the evidence of tlie plaintiff tended to show a presentation of the claim to the administrator, and its retention by him for examination, and that it was afterwards returned with no indorsement thereon, and no verbal message, but accompanied with a letter in relation thereto, which a witness for plaintiff stated was a rejection of the claim, and the defendant was not allowed to cross-examine such witness as to such letter, or to introduce it in evidence on his cross-examination, or afterwards when he came to the introduction of his own evidence, such action of the court was erroneous. ,
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The error assigned is, that the court of common pleas affirmed the judgment of Lowry, a jbstice of the peace, in which G-reiss and others, plaintiffs below, recovered a judgment against Yager, as administrator of the estate of Adams.

It was assigned as one of the errors in the common pleas, that the justice of the peace had refused to grant the administrator a new trial on the ground that the judgment .was against the weight of the evidence; and from the fact that we have a stenographic report of the evidence, — not only that offered on behalf of the plaintiffs below, but also that of the defendant — -it is evident that the counsel for the plaintiff in error has proceeded upon the idea, that the judgment of a justice of the peace in an action of this kind, may be reviewed by the court of common pleas on this ground — viz.: That it was against the weight of the evidence, and that a new trial, on this ground, should have been granted on the motion filed. As a result of this opinion, we have by far the longest bill of exceptions I have ever known to be taken before a justice of the peace, the cost of recording which, and of making a certified transcript of it, is over $40.

As we understand it, there is no warrant of law for any such practice. In the first place, when a justice of the peace tries a case with the aid of a jury, he may set aside a verdict rendered by the jury, on the ground that it was “ obtained by fraud, partiality or undue means.” (Sec. 6560, Rev. Stats.) But we are not aware of any statutory provision for the filing of a motion for a new trial where the case is heard by the magistrate alone. And there surely is nothing that allows it to be done upon the ground that the judgment is against the weight of the evidence, so as by bill of exceptions to get all the evidence upon the record, that the correctness of the judgment of the magistrate may be reviewed.

Sec. 6565, Rev. Stats., and the decisions made under it, seem to settle the question. The section in question gives a right to either party to except to the opinion of the justice upon any question of law, arising during the trial of the case; and the case of Leonard v. City, 26 Ohio St., 447, construing it, holds substantially that there is in it, no authority to have a bill of exceptions on the question of the weight of evidence, and that such a bill can not be considered by a reviewing court.

This being so, it is clear that much the greater part of this voluminous bill of exceptions was improperly taken and allowed, and the expense of that portion of it ought not be included in the cost bill. If we are to have the practice of having stenographers in a justice’s court, thus adding enormously to the costs of litigation, in my judgment the evil will become unendurable.

But there are, as already suggested, statutory provisions for bills of exceptions before justices of the peace on legal questions, and several such questions are raised on this bill. And it is urged by counsel for plaintiff in error, that the justice of the peace erred in refusing to sustain the motion made by him, at the close of the evidence in chief for plaintiffs below, for a judgment in his favor on such evidence; and second, that the justice of the peace erred in admitting and rejecting evidence.

The case of Kauffman v. Broughton, 31 Ohio St., 424, holds that a bill of exception may be taken to bring upon the record the fact that no evidence was offered on a point which it was necessary to establish, to obtain the judgment.

Was such the case here? The claim of the plaintiffs below against the Adams estate, as shown by their evidence in chief, as set out in the bill of exceptions, was substantially this: They originally had an account against the Globe Carriage W orks of Cincinnati, an insolvent partnership, in which Adams was a secret partner. On the failure of the firm, and the making of an assignment by it, a negotiation was set on foot for the compromise of the claims against it, which was effected with plaintiffs and the other creditors, by which a di vidend of 42J per cent, was paid on their claims, and they taken up and assigned to the trustees of Adams, who was not known to be a partner, and supposed only to be a creditor, and seeking to aid the old partnership, and save his own claim.

Adams was entirely able to pay off the whole debt, and, of course, he was liable for the whole of it. And after his death, and the discovery of the fact that he had been a partner, and so liable, suit was brought by plaintiffs below against his estate, on the original accounts, credited with the 42§ per cent, paid upon it.

Here was shown a state of the case, on the face of it, which in all justice and equity would entitle the plaintiffs below to recover from the Adams estate, the balance due on the accounts. The idea, that being liable for the whole debt, he could conceal this liability, and by some scheme buy in the claims at a discount, and be absolved from further liability, is one not readdily to be tolerated.

But in addition to showing this state of fact, plaintiffs below were bound to' show that these accounts had been presented to the administrator and rejected by him.

An issue was made as to this point also.

The evidence offered on behalf of the plaintiffs below, showed that these, with other accounts of a similar character, had been sent by the attorney for plaintiffs, by a messenger, to the administrator of Adams’ estate, with a written receipt prepared for him to sign, receipting for them as claims against the estate, and that on these being handed to him, the administrator desired to consult his attorney about the matter, and that they were left with him to show to his attorney. That afterwards Mr. Williams, the attorney for claimants, found all of the claims upon his desk, with the receipt which had accompanied them, not signed, together with a letter from the administrator, which Mi-. Williams testified he thought was a rejection. The letter itself was not introduced in evidence.

This was substantially all the evidence in chief on the part of the plaintiffs below, and in our judgment it tended to prove what all these plaintiffs were bound to prove; that is, first, the debt against the original firm 6n these accounts; secondly, Adams’ liability for them, and his buying them up at a discount, without the knowledge of plaintiffs of his liability, and third, the presentation of the accounts to the administrator and their rejection by him. We think, therefore, the motion was properly overruled.

2nd. Was there error in the ruling of the justice as to the admission of evidence? The principal question presented on this point is as to the admissibility in evidence of the letter of the administrator sent by him to Mr. Williams, attorney for plaintiffs below, returning the claims without his allowance indorsed thereon.

It was distinctly disclosed in the evidence of the plaintiff in error that such a letter had been sent, in answer to the demand of Mr. Williams. And there was much controversy between counsel at the trial below as to its admissibility — the attorney for the administrator desiring that it be introduced, evidently for the purpose of showing that it did not contain a rejection of the claim, and, for some reason the attorney of the plaintiffs below objecting thereto — the first claim of the latter being, that it could not properly be introduced asa part of the cross-examination of plaintiffs’ witnesses; but that the administrator, if authorized to have it in evidence at any time, must wait until he came to the presentation of his own evidence. This view being sustained by the magistrate, the defendant below was not allowed to cross-examine Mr. Williams as to its contents, or put in the letter itself, which had been furnished to him, though, as before stated, Mr. Williams had testified that the letter was a rejection of the claim.

After the plaintiffs below rested, the defendant again produced the letter, and offered it in evidence ; but the justice, for what reason I know not, refused to receive it. To these rulings proper exceptions are taken, and a copy of the letter is attached to the bill. It seems to apply to the whole list furnished, and to contain no express rejection of the accounts; but objects that in some cases the affidavits alleged that they are for goods sold and delivered, but fail to state what goods, when sold, and at what prices charged, or whether the debt is an account, or is evidenced by note or otherwise. And he declines to act on the presentation of such claims until satisfactory vouchers in support thereof, if any exist, are furnished.

We think there was error in these rulings. It was necessary (as has been stated) for the plaintiffs below, to entitle them to recover, that they should show a presentation of the accounts to the administrator, and a rejection of them by him, or that he should show some other reason, making the administrator liable to the suit, notwithstanding the provisions of section 6113, Rev. Stats. See 12 Ohio St., 254; 36 Ohio St., 456.

Plaintiffs below had undertaken to prove this rejection by showing a presentation, and a return of the claims without an approval. They did show that these claims had been returned to Mr. Williams, their attorney, by the administrator with no verbal message, but accompanied with an answer in writing, relating to the allowance of the claims. If an interview had been had between the parties, in which something had been said on the subject of the allowance of the claims, everything that had passed between them at the same time on the same subject was clearly admissible. So if the claims were returned with a letter allowing or rejecting them, if you show the return of the claims as raising an implication of their rejection, the letter itself must be admissible on behalf of the administrator to slmw what the fact was.

Clearly it is the important and material fact to be shown on this point. Did the administrator reject the claims ? We are unable to see any reason for the rejection of the evidence. The only possible suggestion we see against it is, that it would be proving an act of the administrator himself. But this it is entirely competent to do — for it is an act, or a writing addressed to his adversary. Admit that this letter contained an express allowance of the claims — could it not be shown ? Is it only to be used by the party to whom it is addressed, in case a controversy afterwards arises between them? Such can not be the case. A notice, or other paper, written by one party to an action to another, if material, can after-wards be used by either.

The evidence was admissible on the doctrine of res gestas, as constituting a material part of the transaction itself, and as being therefore a proper and legitimate subject of examination, when the letter itself was shown by plaintiffs below to have been received, and to some extent the contents given.

Thus, in Martin v. Elden, 32 Ohio St., 282, the supreme court states the rule thus : “ A witness may be cross-examined as to his examination in chief, in all its bearings, and as to whatever goes to explain or modify what he has stated in his examination in chief. The right to cross-examine, extends in any view, to all matters connected with the res gestee.”

And it is further stated in the opinion, that it is “ the clear right of a party to cross-examine to elicit suppressed facts, which weaken or qualify the case of the party examining in chief, or support the case of the cross-examining party.”

Independently then of the fact, that we think the letter itself was admissible as an independent item of evidence, on the part of the defendant below under the circumstances disclosed, we are also of the opinion that the defendant below, was authorized on cross-examination to show the same thing, and because of the action of the justice of the peace in these respects the judgment must be reversed.

Messrs. Kebler & Wilby, for plaintiff in error.

Judge D. T. Wright, for defendant in error.

Other errors, we believe, were alleged; but in view of the fact that a new trial will result in a court in which, if necessary, new parties can be made, we do not deem it necessary to dispose of the only additional one argued.


author: Laubie, J.

text:
    (Seventh Circuit — Noble County, O., Circuit Court
    June Term, 1886.)
    Before Judses Laubib, Frazier and Woodbury.
    B. F. Atkinson v. F. C. Baden et al.
    A reservation or exception in a deed-poll, by the grantor, of an estate in lands of the grantee other than those conveyed by such deed, cannot operate as a reservation or exception strictly, but will operate as an implied grant of such estate from the grantee to the grantor, when it clearly appears from the terms of the deed, and the acceptance thereof, that the parties so intended.
    Where the owners of three undivided fourths of a tract of land conveyed to the owner of the other undivided .fourth, their interest in the entire tract, described by metes and bounds as containing four (400) hundred acres, without specifying what that interest was, and without naming any particular estate as being conveyed; reserving and excepting the full, sole, and whole privilege of prospecting and boring for petroleum or rock oil, from and out of said lands or any part thereof; with the full right of ingress and egress upon said lands or any part thereof, for the purpose aforesaid, and for all the roads and rights-of-way that are necessary and proper for carrying on the business of procuring oil and transporting the same to market; the right to take timber and coal from said land or any part thereof, and the necessary land for derricks, wells, sheds, shafts, buildings, machinery, etc., and to remove such structures at pleasure; and providing that all the oils procured from said lands belong exclusively to said grantors; habendum, to have and hold said described 400 acres of land subject to the reservations as above set forth, and such deed was accepted by the grantee, the intention to grant sufficiently appears to vest in the grantors the sole right to procure and remove the oil, in the manner specified in the deed, from said entire premises.
    Appeal from the Court of Common Pleas of Noble County.
    The petition sets forth that on the 6th of January, 1886, Stewart Gordon was the owner in fee of the legal title of the one undivided fourth part of certain premises, situate in said county, and described by metes and bounds, containing 400 acres; that at the same time John Burgess, Wm. Thompson and Joseph Myers were jointly the owners in fee of the undivided three-fourths of said lands, and were tenants in common with Gordon ; that on said day said Burgess, Thompson and Myers, in consideration of $6,000 paid, them by Gordon, executed a conveyance of their interest in said lands, describing the same by metes and bounds, to Gordon. Said deed, so far as it is necessary to an understanding of the case, was in these words: — “This indenture, made this, etc',, between B., T. and M., parties of the first part, and G., party of the second part, witnesseth, that said parties of the first part, in consideration etc., have granted, bargained, sold, etc., and by these presents do grant, bargain, sell, etc., unto the party of the second part, etc., “ all their right, title and claim, with the exceptions and reservations hereinafter mentioned, of, in and to all the following described premises,” a description by metes and bounds of the 400 acres following, reserving and excepting nevertheless, to said B., T. and M. etc., “ the full, sole, and whole privilege of prospecting for, or otherwise procuring petroleum or rock oil, from or out of said lands or any part thereof, without any hindrance-on the part of said G., his heirs or assigns; also a full and complete right of ingress and egress upon and over said lands or any part thereof, for the purpose aforesaid, and all the necessary roads and rights-of-way, necessary and proper for carrying on the business of procuring said oil and transporting the same to market; also the right to enter upon any part of said land and procure therefrom the necessary timber for derricks, sheds, etc., used in connection with said business, and also to procure therefrom all the necessary coal in prospecting, boring for and procuring oil from said lands or any part thereof; and further reserving and excepting such portions of said lands as may be necessary to occupy with derricks, wells, shafts, buildings, or sheds, in carrying on said business of boring, prospecting and procuring oil upon or out of said lands, and with the free privilege of removing, at any time, such buildings, machinery, etc.; and furthermore, it is understood that all oils procured from said lands belong exclusively to the parties of the first part. * * * To have and to hold the said described four hundred acres of land, subject to all the reservations as above set forth.” Said deed was executed by said grantors, but was not executed by G., and was not intended to be. G., at the time, was in possession of said lands and so remained, until he conveyed to others, who conveyed to plaintiff, who took and retains possession. That B., T. and M. conveyed to the Bradford Oil Co., which conveyed to Baden & Aiken, who have only such interest as B., T. and M. had by virtue of said deed. That B. & A. have taken possession of plaintiff’s lands, and are boring and prospecting for oil, and have procured and are procuring oil in large quantities, and claim and assert that they have the sole and exclusive interest and estate in the whole of the oil in said lands, and the sole right to obtain the same, and that said claim is made solely by virtue of the reservations in said deed; but plaintiff claims he is the owner of the one undivided fourth in the oil in said lands, as tenant in common, etc. Further facts appear in the opinion.
   Laubie, J.

In the court below, this case was heard on a demurrer to the petition, which was sustained and the petition dismissed ; and from such judgment plaintiff appeals; so that the question is presented to us as it was in the court below, whether or not the demurrer was well taken to the petition. The plaintiff states in the petition, that in 1866, one Stewart Gordon was the owner in fee of the one undivided fourth of the lands described in the petition; that Burgess, Myers and Thompson were the owners of the other three undivided fourths; that Burgess, Myers and Thompson conveyed to Gordon their undivided three-fourths interest in this land, reserving and excepting therefrom certain oil privileges (petroleum or rock oil) in the lands conveyed; that subsequently thereto, Gordon conveyed certain portions of the land to the plaintiff; that Burgess, Myers and Thompson conveyed their rights, reserved to themselves in the deed, to the defendants; that these defendants have entered into possession of the lands conveyed to the plaintiff by Gordon; have bored wells thereon, and are taking out, (at the time of the filing of the petition), large quantities of petroleum or rock oil. That the defendants claim to be the owners of the sole right to take this oil, and to the oil when severed from the land, and deny that the plaintiff has any rights therein; and they claim this right under and by virtue, only and solely, of the reservation specified in the deed of Burgess, Myers and Thompson to Gordon. Plaintift claims that he is the owner, by virtue of the conveyance from Gordon to himself of these lands, of the undivided one fourth interest in this oil, and seeks generally to have an account from the defendants as to the amount of oil taken out at the time of filing the petition; that his and their rights be determined, and that the cloud upon his title to the undivided one-fourth interest in the oil in this land be cleared.

This brings us to the question as to the construction to be given to the reservations and exceptions contained in the deed: — 1st, as to what was the intention of the parties in these reservations and exceptions; 2nd, when ascertained, what is their legal effect.

First, then, what did. these parties intend by the reservations and exceptions in this deed?

It is claimed upon the pare of the plaintiff, that the intention was to reserve and except to the grantors, Burgess, Myers and Thompson, no greater interest than they were then lawfully possessed of; while upon the part of the defendants it is claimed, that the parties intended to reserve a larger right to the oil than the grantors lawfully owned at the time of the execution of this deed.

In what manner the deed is to operate, is to be determined from the deed itself. On what it is to operate may be gathered from the whole body of the evidence, whether it be in the deed or in the facts connected therewith, and surrounding the parties at the time.

In the construction of a contract, a deed, or instrument of writing, the court may be put into possession of the facts and circumstances connected with the subject-matter and known to the parties at the time, for the purpose of enabling the court to correctly interpret it and correctly arrive, at what was- the intention of the parties. As respects the reservations and exceptions contained in this deed, was it the intention to reserve to the grantors a larger right than they then owned? Being heard upon demurrer, the court has possession of none of the facts or circumstances surrounding the parties, or connected with the subject matter of the deed, save as they are detailed in the petition ; and so far as the plaintiff regarded them to be impor-. tant, he has included them in the allegations of his petition. I have already substantially referred to the material parts; that is, that Gordon was the owner of one undivided fourth of this land, and that B.urgess, Myers and Thompson were the owners of three undivided fourths, and that Burgess, Myers and Thompson thereupon undertook to convey and did convey to Gordon, their tenant in common, their undivided interest, reserving in the deed rights to which I have referred. The deed expresses to be one of bargain and sale, and to have a consideration in money of six thousand dollars; and by its terms the grantors transfer to Gordon all their interest in the land save what is reserved, it being what may be termed a special quit-claim deed. They do not undertake to convey to him any indefeasible estate, or any particular estate. It is not specified in the deed that they are conveying an undivided interest. They quit-claim to him all their right, title and interest of and in the body of the lands, whatever that title, right and interest may be.

In determining whether or not parties, in a case like this, are reserving to themselves a greater right than they lawfully own or possess in the lands, it is necessary that it should clearly appear that such is the intention ; because, although this is said to be an indenture, it is, in force and legal effect, a deed-poll. It is executed by the grantors only, and is designed and intended to be executed by them alone.

A deed-poll, it is hardly necessary to say, is the deed of the grantor only, and by which the grantor undertakes to convey to the grantee certain rights and interests of his own ; and the thing intended, ordinarly, in a conveyance, by way of reservation and exception, is something that would otherwise pass to the grantee. Does it clearly appear that the reservations in this deed are reservations of greater rights in the premises than’the grantors, at the time of the execution of the deed, themselves possessed ?

The deed itself, after naming the parties, provides that the parties of the first part do grant, bargain, sell, alien and release, to said party of the second part, “all their right, title and claim, with the exceptions and reservations hereinafter mentioned, of and to the following described premises.” It then describes the entire body of land — the 400 acres — by metes and bounds. >

It proceeds, “ reserving and excepting, nevertheless, to the said Burgess, Myers and Thompson, the full, sole and whole privilege of prospecting for and mining petroleum or rock oil, from and out of said land, or any part thereof,” which, here, seems to mean simply a reservation out of their own title and land.

But it will be remembered that they have not undertaken by’ this deed, to convey any particular estate, as for instance their undivided three-fourths interest, but all their right, title and claim to the lands described as four hundred acres, whatever that title or claim may be; and they specially provide that “ they shall and do retain the full, sole, and whole privilege of prospecting, and boring for petroleum and rock oil, from and out of said land or any part thereof;” reserving here a right in the whole land, or any part thereof; to have the sole and whole privilege of thus prospecting and boring for oil, and this to be without hindrance on the part of Gordon, his heirs or assigns.

The grantors also reserve full right of going upon or over said land, or any part thereof, for the purposes aforesaid, and all the rights that are necessary and proper for carrying on the business of procuring said oil and transporting the same to market. They also provide for the right to enter upon the land or any part thereof to take timber for such purposes, and for the right of taking the necessary quantity of land for the erection of their derricks, sidings, shafts, and machinery, with the provision that they may remove the saihe at any time. They further provide, “ and it is further understood that all the oil procured from said lands belongs exclusively to ‘the parties of the first part.” In the habendum clause, it is provided that the party of the second part is to have and to hold the said described four hundred acres of land, subject to the reservations as above set forth. It would seem from these provisions, that the parties were not contracting in regard to just what the grantors then owned.

As I have said, the grantors do not undertake to convey any particular estate. They are conveying only what right and title they may have to four hundred acres of land. What that right is, or what that claim, whether it be of the whole, or whether it be of any undivided part, is not mentioned specially. It is to be inferred that they were making a claim to the whole land, as there is no particular estate designated. It may be a claim to the whole, or it may be á claim to a small part.

Outside of the deed, for the purpose of enabling the court properly to interpret it, plaintiff alleges that the title and right was to the undivided three-fourths interest; but they have not specified it in the deed. They are conveying an indeterminate interest, which may be one thing or another. When they come to the reservation, they reserve as to the whole land; the oil in the whole four hundred acres. This is definite and specific, so that, if we look to the deed alone, it may be seen that they are reserving a definite interest, and one which may be, and in fact is, much larger and greater than their real interest. They reserve all of the oil in the whole of the land. This deed is nothing more nor less than a contract, and is to be interpreted as any other contract. We are to arrive at the intention of the parties, in making these provisions, the same as we would arrive at it in any other contract. The rule of interpretation is the same.

Gordon must have known, when he accepted this deed, that the grantors were reserving to themselves all the oil under the whole four hundred acres, and it must have been, therefore, his intention as well as that of the grantors that it should have this force and meaning. We think this a very fair deduction from the facts and the contract as set out. But at all events he is chargeable with such knowledge.

Now, upon the second question, what is to be the legal effect of such a reservation, reserving to the grantors a larger interest in the lands than they owned at the time of making this deed? Can it have the legal effect of passing to them an interest which they did not own at the time, but which belonged to the grantee? The plaintiff claims that it cannot have such legal effect; that notwithstanding such may have been the intention, it cannot have the legal effect of reserving to them any interest in the lands of the grantee; that it can operate only as a reservation or an exception. Undoubtedly, a reservation or an exception must be out of the thing granted, and as a reservation or an exception merely, it could operate upon, and grow out of nothing but the estate owned and conveyed by the grantors.

But may not these provisions of the deed, although in the form of reservations and exceptions, operate as an implied grant on the part of the grantee of an interest in his estate ?

Three cases (and we find no other directly in point) are relied upon by counsel on each side on this proposition, and they are all Massachusetts cases.

In the case of Adams v. The Briggs Iron Co., 7 Cushing, 361, the bill sets out, that upon the 21st of December, 1790, Jared Lane was the owner in fee-simple of three undivided fourths of lot No. 62, containing 100 acres, and then sold the same to John and Titus Wood and Jonathan Weed, and executed to them a deed thereof in due form of law, excepting, saving, and reserving a full and ample right to all the iron or other ores that may be found on the surface or in the bowels of the earth of said one hundred acres of land, with liberty to pass and repass, cart, and carry away the same.

In that case the deed is of the three undivided fourths in the one hundred acres, and it has a reservation and exception of the full and ample right to the iron and other ore on the surface and in the bowels of the earth, of said one hundred acres. But it is not a conveyance to the party who owned the other undivided fourth of the land, and therefore no grant could be implied from the grantee as to it.

The court, Chief Justice Shaw delivering the opinion, say: “It is contended on the part of the defendants in the present case, that the relation of tenants in common of these ores does not exist between the parties, because the deed under which the plaintiffs claim, although it conveys three-fourths of the land only, excepts and reserves in terms all the iron and other ore under the whole hundred acres; and so, if the plaintiffs have any title, they are sole owners. All the conveyance out of which such reservations and exceptions are made, is of the three undivided parts, only, of the soil of the hundred acres. The literal form of the reservation is of the whole; but perhaps this can hardly be regarded as the true meaning. The form being that of a reservation, the ordinary construction must be, that the reservation must be out of the grant of something which, but for the reservation and exception, must have passed by it, and must, by implication, be so restricted.” He proceeds to state that if there had been a severance of the iron from the land, that a different construction might have prevailed.

This is the expression of the opinion of the judge of a court entitled to the highest respect and consideration. But the case did not pass off on that point, but did pass off on an entirely different one; that is, that the grant was void because it was an attempt upon the part of a tenant in common to sever the tenancy, by a deed to a third person of a specified part in the common estate, which could not be done.

The next case that is referred to is Hill v. Cutting, 107 Mass., 596. This case is one of a reservation in a deed from one tenant in common to another. The parties to this were the parties to an amicable partition of an estate between themselves, in which John Hill desired to reserve, for his own use, all the wood, timber and trees on a part of the land, with the right to enter to fell, cut and take away the timber, and to pass over the land of the grantee for that purpose.

The deed had this reservation: “The grantor, John Hill, desires to reserve to himself the wood upon the eight acres described by metes and bounds, etc.,” being part of the land conveyed to the other tenant in common. They owned, as tenants in common, these premises, and one tenant reserved in his deed the wood in question and standing trees belonging in common to them both. The court say: “The intention of the parties to the deed of May 5th, 1865, was that all the wood on the eight acres should pass. The intention there is full and plain. It is a reservation in which he reserves a greater right to the wood than he possessed. A reservation and exception can only be out of the estate of the grantor. This clause, therefore, could not operate by way of reservation or exception upon the undivided half of the eight acres which had never been in the grantor, but which was before the division, and after-wards remained in the grantee. As to the other undivided half, there would seem to be no good reason why that clause should not be allowed to operate as a reservation and exception.” That is, as to the half that belonged to the grantor.

Here the court lay down the usual rule as well understood— a reservation must be out of the estate granted. They say that, as to the estate which belonged to the grantee, this reservation and exception could not operate as a reservation and exception,because it-is not out of the estate granted; but the court do not -decide the case upon that point. They proceed, but however that may be, it had at least the effect of a parol transfer of all the wood then standing on the premises, as personal property, and á license to enter and cut the same, which was good until revoked, which was assignable without deed, and which after it had been acted upon, and the trees cut down by the licensee or his assignee, could not be countermanded.” So there was a judgment for the defendant.

Here again we find the court did not decide the case upon the proposition we are now discussing. They state the facts of this reservation, and they proceed to hold that the formal transfer of the wood standing upon the premises, and the license to enter and take the same, had been performed, and the wood taken; and it having thus been acted upon, and carried out by the grantor, or his assignee, could not be countermanded. In other words, it was a license executed. We do not intend to apply the principles, of this case to the case at bar, to the extent of regarding these reservations as .a license; because a license to do anything, as generally understood, may be revoked at any time, of course with the qualification I have just given. We infer from the allegations of the petition, that if this was a license, it was revoked long before it was attempted to be enforced by the licensee, because a sale and conveyance by the owner of the land operates as a revocation of such license, where nothing has been done under it, and no outlay is made, of action taken by the parties to it.

The other case is that of Dyer v. Sanford, 9 Metcalf, 395.

Tilden and Davis owned lands adjoining each other. Til-den had a house upon his premises within a few feet of the line, and he conveyed a narrow strip between the house and the line of Davis to the latter, and the reservation is of this character: “reserving, however, in the dwelling-house of said deceased, Christopher Tilden, the right of eavesdrops where it bounds on said lot, and also the right of forever keeping open the great staircase, window at the back of said house, bounding on said lot.” It was in evidence, that the window thus mentioned, was in the back part of the house of said Til-den, and twenty-five inches distant from the line of the estate of said Davis, as it stood before the conveyance. The conveyance included this strip, twenty-five inches wide.

The reservation was of the right to forever keep open the great staircase window at the back of said house, bounding on said lot. Tl^e court, in referring to this, said : “ It is well established, by the facts in this case, that at the time of the conveyance from Tilden to Davis, Tilden’s was a modern house, and had acquired no right of light and air for the staircase window over Davis’s land, Davis then had a right to build a wall quite on the extremity of his southern'line. Was Davis’s right to build on his own land diminished by his acceptance of this deed? We think not.” They say: “A case was cited from New York, by the plaintiff’s counsel, to show that a reservation may be made of something not coming out of the estate granted. Case v. Haight, 3 Wend., 655. We have no doubt, that by apt words, even in a deed-poll, a grantor may acquire some right in the estate of the grantee. It is not, however, strictly by way of reservation, but by way of condition or implied covenant,” (or, as it is better expressed elsewhere in the opinion, by way of implied grant) : “ It is not, however, strictly by way of reservation, but by way of condition or implied covenant, even though the term ‘ reserving ’ of 1 reservation ’ is used.”

That is, if the parties intended to reserve to the grantors a right and interest in the estate of the grantee, even in a deed-poll, it might operate as an implied grant.

The court proceeds to put some cases: “ If a grant is made to A., reserving the performance of a duty, to-wit, the payment of a sum of money, to a third person, for the benefit of the grantor, an acceptance of the grant binds A. to the payment of the money.”

“ So, where a demise is made to A., reserving a rent in money, or in service, it is not strictly a reservation out of the demised premises; but the acceptance of it raises an implied promise to pay the money. So we think a grant may be so made as to create a right in the grantee’s land in favor of the grantor. For instance, suppose A. has close No. 2 lying between two closes, Nos. 1 and 3, of B.; and A. grants to B. the right to lay and maintain a drain from close No. 1, across his close No. 2, thence to be continued through his own close, No. 3., to its outlet; and A., in his grant to B., should reserve the right to enter his drain, for the benefit of his intermediate close, with the right and privilege of having the waste water therefrom pass off quickly through the grantee’s close, No. 3, forever. In effect, this, if accepted, would secure to the grantor a right in the grantee’s land; but we think it would enure by way of implied grant, or covenant, and not strictly as a reservation. It results from the plain terms of the contract.”

It is said that in the case thus put, an easement only was created. But if so, it does not affect the principle. It is the creation of a, right in the land. It is a reservation by the grantor of that which he did not lawfully own or possess at the time of the execution of the grant; and it is reserving to himself an interest in the lands of the grantee. The court proceeds in regard to the case before them. “ But there is nothing in the terms of the reservation, in the deed of Tilden to Davis, which imports or implies any larger claim for air and light to this window than the owner lawfully had before.”

In this deed, the court, it is observed, holds that there was no intention to reserve to Tilden any greater right to light and air than he lawfully possessed at the time of the execution of the deed; so there was no ground for the application of the doctrine of an implied grant.

The court proceeds: “ It is a simple reservation or exception, from the operation of the grant, of a right already existing, and nothing more; and that, too, in a deed by an administrator, executing a power over the estate of the intestate, and not acting, or professing to act, for the heirs. Besides, the right reserved is to keep open the staircase window. It is not even said for air and light; and that it was so intended, results only from reasonable implication. As the direct and ordinary purpose of a deed-poll is to transfer the right of the grantor to the grantee, a grant, covenant, or promise, by the grantee to the grantor, is not to be implied, except from such plain and express terms, as will show that such was the intent of the grantee, manifested by his acceptance of the deed.”

I think that the case at bar comes squarely within the exception here enunciated. The parties did intend to reserve to the grantors a larger right than they owned at the time of the execution of the deed, intended to reserve a right in the land of the grantee, and the grantee having accepted such deed, the reservation operates as an implied grant from him to the grantors.

The rule is, that where a grantee accepts a conveyance, he is bound by all its provisions, and the legal effect of such provisions, and cannot gainsay them. He is estopped to deny the provisions contained in the deed, and their effect.

When we find what the provisions of this deed are, and what the effect of these provisions, we have arrived at the same conclusion that the court was announcing in the case just quoted from : that there is an implied grant which grows out of the reservations contained in the deed. These‘provisions can have no'effect otherwise. The intention of the parties would be defeatedjjotherwise. We therefore think, that the demurrer to this petitionishould be sustained, and the petition dismissed.

It is hardly necessary to refer to the claim, which was alluded to by counsel, that the plaintiff stands in a better condition in regard to these premises, or the oil, than Gordon. He took his title from G-ordon; and in order to ascertain whether Gordon had any title, we must look to this deed.

Wm. Chambers, and Nye & Oldham, for plaintiff.

D. S. Spriggs and F. L. Blackmarr, for defendants..

He is bound by its provisions, and this implied grant passes .as a muniment of title, and parties and privies are bound by it.