author: TAGGART, J.

text:
    CRIMINAL LAW — ERROR—HOMICIDE—WITNESSES.
    [Morrow (5th) Circuit Court,
    December 19, 1907.]
    Taggart, Donahue and Craine, JJ.

      Jerry Williams v. State.
    1. Defects in Sheriff’s Venire in Homicide Case Only Reviewable when of . Recobd.
    Irregularities not appearing in a sheriff’s venire and returns requiring proof outside the record cannot he considered by the circuit court on review. Hence, a verdict of conviction will not be set aside upon the ground that a true copy of the panel as returned by the sheriff was not delivered to accused as required by Rev. Stat. 7273 (Lan. 11027), where the irregularity complained of is brought to the attention of the court by an affidavit to which .is attached a paper writing purporting to be a copy of such panel but which is not contained in the bill of exceptions.
    2. Mere Objection to Mental Competency Does not Require Immediate Inquisition.
    Mental incompetency of a witness being suggested does not require the court to stop the trial and institute an inquisition as to his mental capacity immediately upon mere objection to his testimony therefor.
    3. Misconduct of Prosecuting Attorney Denied.
    A prosecuting attorney is not guilty of misconduct in his closing argument to the jury in a homicide case in commenting on a billy or “black jack” introduced in evidence and quoting from a witness, “That black jack could tell • the story.” If adding the statement, that the accused also could tell, was prejudicial it was corrected by the court, upon objection of accused’s counsel, stopping him, insisting that it was not proper and that it should not be repeated.
    4. Testimony of Accused before Grand Jury Competent.
    Testimony of one accused of homicide before a grand jury, denying that he was guilty but he knew how the murder was committed and other incriminatory statements, was properly admitted on his trial for the homicide as admissions showing guilty knowledge of the perpetration of the crime.

      5. Evidence by Death by Violent Means Established.
    Evidence that deceased disappeared March 17, 1904, his body was found April 2, following, with the head covered with contused wounds, the skin torn from the knees or abraded and marks on his throat, and testimony of reputable physicians that death was caused by suffocation, if not establishing the fact beyond reasonable doubt that he was violently dealt with, reasonably brings to the jury that violence was employed and that there were strong probabilities that some person was guilty of the offense and outweighs the idea of accident.
    [Syllabus approved by the court.]
    ERROR to Morrow common pleas court.
    J. W. Barry and W. F. Bruce, for plaintiff in error ;•
    T. B. Mateer and Word, for defendant in error:

      Cited and commented npon tbe following authorities: Henning v. Bartz, 25 O. C. C. 15; Goyert v. Eicher, 70 Ohio St. 30 [70 N. E. Rep. 511]; McHugh v. State, 42 Ohio St. 154; Kent v. State, 42 Ohio St. 426; Hartnett v. State, 42 Ohio St. 568; Davis v. State, 25 Ohio St. 369; Calhins v. State, 18 Ohio St. 366 [98 Am. Dec. 121]; McGuire v. State, 2 Circ. Dec. 318 (3 R. 551) ; Gawn v. State, 7 Circ. Dec. 19 (13 R. 116) ; Schneider v. State, 1 Circ. Dee. 565 (2 R. 420) ; Lindsey v. State, 69 Ohio St. 215 [69 N. E. Rep. 126]; Brown v. State, 18 Ohio St. 496

      Leave to file petition in error refused by the Supreme Court, January 21, 1908; 53 Bull. 28.

   TAGGART, J.

At the April term, 1907, of the court of common pleas Jerry "Williams was indicted for murder in the first degree by a grand jury of Morrow county.

To the indictment he filed a motion to quash and also a demurrer. This motion and demurrer were overruled by the court.

He was placed upon trial and a verdict of “guilty” was returned “of murder in the second degree.” A motion for a new trial was filed and overruled; he was sentenced under the law. Thereupon proceedings in error were prosecuted in this court, incorporating all the errors that it is alleged intervened from the time of the indictment to the sentence of the defendant by the court of common pleas.

In respect to the motion to quash, and the demurrer to the indictment) we think the court of common pleas committed no error in overruling them.

The next error to which our attention has been called, is a motion to quash the service of the panel, as it is designated, and the motion is somewhat extensive and the following is a part:

“Now comes the defendant, Jerry Williams, in his own proper person, and objects to the panel of petit jurors, drawn June 3, 1907, and June 8, 1907, and returned by the sheriff of Morrow county, Ohio, to try the above entitled cause, for the following reasons, to wit:
“1. Because of the failure of the sheriff, or proper officer, to comply with Rev. Stat. 7273 (Lan. 11027), which said section of the .statute reads as follows:
• “ ‘A copy of the panel of the jury returned by the sheriff shall be delivered to every person so indicted, at least three days before the day of trial.’
“That no copy of said panel, as returned by the sheriff, has been delivered to this defendant, Jerry Williams.
“That all the paper writing purporting to be a copy, is hereto attached and made a part of this motion.
“2. Because tbe return of the sheriff does not show that all of the jurors nafned in the first special venire, were served by him to appear as jurors to try the above entitled case.
“3. Because the clerk was not authorized by said return, to cause a special alias venire facias to be issued.
“4. Because the clerk drew the special alias venire facias in the absence of the court.
“5. Because the record does not show that the special alias venire facias was drawn in the presence of the court.
, ■ “6. Because the endorsement by the sheriff upon said special venire, ‘Not Found,’ is not a sufficient return by the sheriff, to show that juror is not within the county of Morrow, and state of Ohio. ‘Wherefore said defendant prays that said panel may be quashed.’ ” Then follows an affidavit:

“The State of Ohio, Morrow County, ss.- Jerry Williams being duly sworn according to law, says, that the paper writing hereto attached and made a part of this motion, is the paper writing served upon him, purporting to .have been served by the sheriff; and that the same is the only paper writing served upon him by the sheriff, or by any other person, and that the said Jerry Williams is now an inmate of the county jail and has been confined therein since long before the return of the indictment in this case by the grand .jury of Morrow county, Ohio, against said' defendant at the April term of this court, to wit: April — ,1907. (Signed.) Jerry Williams. Subscribed in my presence and sworn to before me this twenty-fifth day of June, 1907. (Signed.) C. R. Meredith, Clerk of Courts.”

So far as this potion purports to set out any irregularities that appear in the sheriff’s venire and returns, we can consider them. Such .as are required to be shown outside of the venire, by proof, we cannot consider. Looking into the matters that are raised on this motion that appears from the venire and return of the sheriff and from the transcript in this case, we think that the clerk and sheriff have fully complied with the law. The only niatter that appears outside of the record and that is attacked by thé plaintiff in error, is, “That a true copy of the panel as returned by the sheriff, was not delivered to him; ’ ’ and this appears by the affidavit and a copy of the papers attached to the motion.

It may be said in respect to that matter, that this does not bring the matter into the .record at all, neither is it in a condition that we can consider it for the reason: There is attached to this motion an affidavit by Jerry Williams, but we do not know that the court acted upon that affidavit alone, or wbat evidence tbe court acted upon in overruling this motion; all that appears in this transcript is the overruling the motion.

In order that it may be brought to the attention of the reviewing court, this affidavit and all the affidavits that the court heard must be brought into the bill of exceptions, with the certificate, that' that was all the evidence that was heard by the court, at the hearing of the motion.

In Henning v. Bartz, 25 O. C. C. 15, 16, the circuit court of Wood county thus announced the law:

“A reviewing court cannot take notice of affidavits offered on a motion for a new trial, unless they are incorporated in a bill of exceptions. ’ ’

In the case of Brock v. State, 12 Circ. Dec. 467, 468 (22 R. 364), the circuit court of Hamilton county, thus lays down the rule:

£ ‘ These facts are only supplied by the affidavit of the county prosecutor made after the accused had been tried and found guilty. In the first place, an affidavit is no part of the record, and is not made such even though copied verbatim by the clerk into the record. An affidavit can only become part of the record by being incorporated in a bill of exceptions.”

The Supreme Court in Goyert v. Eicher, 70 Ohio St. 30 [70 N. E. Rep. 511], thus lays down the rule: I

“An agreed statement of facts, although in writing, signed by counsel of all parties and filed, does not become a part of the record unless brought upon the record by a bill of exceptions, or the facts as agreed upon are stated in tjae journal entry as the court’s finding of facts.” And cites with approval, Wells v. Martin, 1 Ohio St. 386, and particularly Bushy v. Finn, 1 Ohio St. 409; also Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370, 380 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640], but this is clearly the rulings of the different courts. So far, then, as to any matters outside of the record, they are not before us and we cannot pass upon them, but from what appears in the record we think there was no error in the court overruling this motion to quash the service of the panel and this exception is not well taken.

It is claimed the court erred in the trial of the case, in refusing to hear evidence as to the mental condition of one Herbert Glenn.

Glenn is jointly indicted for this crime; when he was called as a witness, objection was made that he was not mentally competent and it is urged that the court was in error in not hearing testimony as to his mental condition before admitting him as a witness.

Our attention is called to Whittaker’s Code of Evidence and other ■authorities. Where a person of tender years is brought into court, the •court can see and it is- his duty to ascertain whether the child has such knowledge of the responsibility and nature of an oath, the proper appreciation of the relation of things, that it can state truthfully and relate correctly what it has heard and seen.

Assuming that that would be the same rule with respect to one that was of weak mind (which we do not by any means announce as the opinion of the court), but assuming that, (in this case the witness was introduced, the court could see him; he heard'him testify and the motion was again renewed at the close of his testimony) it would be a strange procedure that, on an objection to a witness that is tendered, the trial court would have to stop the trial to test the mental •capacity of the witness. We do not think that such is the law of the case.

If the examination in chief, or the cross-examination even, tended to bring to the attention of the trial judge, that there was such mental infirmity, it would have been his duty to have taken care of it in the proper way; if it was disclosed that the person was of unsound mind and mentally weak, he should have then withdrawn the testimony from the jury. But from a careful examination of this record, we think there was no prejudice in this case as to the competency of this man on the ground of lack of mental capacity, for the manner in which this record discloses that he had detailed facts and circumstances, and the manner in which he underwent the close, carefhl, rigid cross-examination of counsel, would indicate that he ^as at least possessed of the •ordinary degree of mentality. We cannot hold to the idea, that on a mere objection, that the court was compelled to institute on the side .an inquisition as to the mentality of the witness. We think that is not the practice and not the rule. Therefore we hold the court was not in error so far as that objection is concerned, in admitting him as a witness in the case.

The next objection urged upon us is, the misconduct of the ■prosecuting attorney. There was introduced in the case a “billy” or “black jack” as it is sometimes called, and the prosecuting attorney in the argument of the case, comments on some testimony in the case, which would justify the remark: “That black jack could tell the story.” A certain witness had so stated; he repeated that; that was ■perfectly proper. He adds, however: “So could Jerry Williams;” "thereupon the court very promptly, upon objection of counsel, stopped him, insisted that it was not proper and that it should not be repeated. Now the court in that instance did all that he could do to correct whatever wrong there was in the action of the prosecuting attorney. And •even assuming that the statement, “So could Jerry Williams;” assuming that it was improper, it was corrected and no prejudicial error intervened, in our judgment.

It is urged upon us that the admission of the testimony of Jerry Williams before the grand jury at the January term, admitted ■at the trial, was erroneous and prejudicial. An examination of this record will show that when it was proposed to introduce the evidence •of Jerry Williams taken before the grand jury, it was objected to as being incompetent, because no cross-examination had been made, and no opportunity given for cross-examination. We think that this was entirely competent, upon the well-established rule, that the admission, declaration, or statement of any party on trial made at different times or places is perfectly competent to be introduced against him.

These statements were introduced as substantive testimony, that he had guilty knowledge of the perpetration of this crime. He so testified before the grand jury, that he knew how this crime was committed. Although there was some self-serving declarations, yet there was also incriminatory statements which were perfectly proper as substantive testimony. Besides, this could not be prejudicial. Williams did not take the witness stand, but the admission of this testimony placed before the jury the fact that he did not commit the crime; by the introduction of these statements there was brought before them his sworn testimony that he was not guilty, without subjecting him to a cross-examination and the effect of this testimony was to create a doubt in the minds of the jury as to his guilt.

But it is urged upon us that the defendant was not properly convicted of this offense; that the verdict was against the evidence and against the law of the case.

To determine whether this verdict was merited by the evidence produced, there are a few things that we can assume as proven beyond all peradventure.

Shadrick Westbrook disappeared on March 17, 1904; was found perhaps on the second day of April thereafter, dead; there is no dispute about that fact. There can be no dispute as to the condition of the body at that time; that the head was covered with certain contused wounds, that the skin of the knees was torn off or abraded. There were also marks on his throat. We need not enumerate them all in detail.

The first question that would address itself to the triers of the cause would be, was this a homicide or was it an accident that resulted in the death of the deceased ?

We have the testimony of reputable physicians introduced in the case, to say that he came to his death by suffocation. Whether this testimony, beyond a reasonable- doubt, establishes the fact that he was violently dealt with or not, we may assume that it reasonably brings to the jury that there was violence employed and there were strong probabilities that some person was guilty of the commission of the offense. We think it outweighs the idea of an accident at least.

There are other facts connected with this case which strengthen that very reasonable position. Shortly after his disappearance, certain persons begin to tell the story, that Westbrook was murdered, and that one Peek was guilty of the crime. The only persons who would have any motive in telling such a story, would be somebody that was interested in his disappearance, or connected therewith.

There has been introduced in the case the testimony of one, Herbert Glenn, and let us see whether we can find any testimony outside of him which tends to establish and strengthen the idea that there was a homicide and not an accidental killing.

The defendant, Jerry Williams, in the workhouse and in the grand jury room says, that one, Sherman Peck, committed this crime. There you have the plaintiff in error, bringing to the attention of the jury that it was not an accident, but that it was a homicide. We have that from his ‘ declarations on several occasions — that the disappearance of Westbrook was not accidental; it was purposely and willfully caused.

Next, after looking to the evidence tending to establish that it was a homicide and not an accident, it becomes necessary to look to see whether we can ascertain the guilty agent. The only persons that would have an interest in making any statement in regard to this, were those that were connected with it.

We have said nothing thus far about Herbert Glenn, but the person, Jerry Williams, who says that this was a homicide and not an accident, shortly after the disappearance of Westbrook, himself disappears. Now flight and concealment, unless properly explained, is an evidence of guilt; so that in connection with the fact of his stating that it was a homicide, we have his disappearance and his accusation of Peck. He would be interested in diverting suspicion from himself; he therefore says that it was Sherman Peek who committed this offense.

He was a witness before tbe grand jury; and in the presence of Herbert Glenn and other witnesses, calls attention to the fact that Herbert Glenn could corroborate what he knew about it, that Sherman Peck was the guilty party. They are in the prosecutor’s office, they tell the same story, they go before the grand jury and Sherman Peck is indicted. But Sherman Peck was never tried and it is said now that the proof of Sherman Peck’s innocence was beyond controversy; assuming that to be true, then you have this plaintiff in error in conjunction with Herbert Glenn,. placing the crime, telling the same story upon Sherman Peck, which might send him to the chair. That being so, we reach the next step, that they have some connection with the crime, that they would not have any purpose in diverting suspicion from themselves on someone else, unless they were connected with it.

Later Herbert Glenn tells the story as given on the trial; a story similar in its details with that told before,, and as told by Jerry Williams, except that instead of Peck committing the crime, that he and Williams and one Mauck committed this offense.

It is said we are to give no credence to the story of Herbert Glenn. But we call attention to the testimony of the witnesses who heard Glenn and Williams talk in the jail. Williams says: My wife will not say anything that will send me for life, or something in substance of that kind. He says other things there. Glenn testifies on the trial that they took the body of Westbrook to Williams’ home' and sought admission, which was refused by Williams’ wife.

It is urged upon our attention that there is no corroborative testimony of Glenn here. We think that he is corroborated throughout on very substantial details. True, it is said that he manufactured this case after he learned all the facts about it. He could not have manufactured it, as he detailed it on the trial, without having run counter to Williams, and the greatest corroborative testimony that we find in this record, is Jerry Williams himself, and the facts and circumstances which this record contains.

We think that this verdict is amply sustained by the evidence. We think that it is not against the law of the case, but the plaintiff in error was fairly tried by the court of common pleas, and the verdict of the jury was right and there is no error in this case to the prejudice of the plaintiff in error.

Finding no error in this record of prejudice, the judgment of the court of common pleas will be affirmed, with costs, and remanded!

Donahue and Craine, JJ., concur.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    CRIMINAL LAW — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    February 15, 1908.]
    Swing, Giffen and Smith, JJ.
    Cincinnati (City) v. Cornelius A. Burkhardt.
    1. Power of Municipality to Regulate Emission of Smoke.
    It is within the power of a municipality under Sec. 7, Clause 3 of act 92' O. L. 346 (Rev. Stat. 1692; Lan. 3102; B. 1536-100), to provide by ordinance for the regulation of the emission of smoke.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§• 1773-1777 — Ed.]
    2. Smoke Ordinance not Void Unless Unreasonable.
    The test as to the validity of such an ordinance is its reasonableness; and unless it is shown to be clearly unreasonable, it should not bo declared void.
    3. Proper Parties Defendant in Prosecution.
    In a prosecution for violation of an ordinance regulating the emission of smoke, the proper defendant is the corporation or person permitting the emission, or the employe causing it.
    [Syllabus approved by the court.]
    B. S. Oppenheimer, for plaintiff in error.
    E. W. Strong and J.' J. Muir, for defendant in error.
   GIFFEN, J.

A statement of the case may'be found in Burkhardt v. Cincinnati, 18 Dec. 450. It involves the construction of a municipal ordinance to regulate the emission of smoke.

Prescribing a certain scale for measuring the density of smoke, and declaring any thing in excess of that scale to be a public nuisance, is the same thing as declaring smoke to be a public injury and annoyance, to prevent which the legislature has given the power to council, act 96 O. L. 21, Sec. 7, Subd. 3 (Rev. Stat. 1692; Lan. 3102; B.-1536-100).

If upon its face, or after investigation, it clearly appears to oe not a nuisance nor an annoyance nor an injury to the public, the ordinance is unreasonable and void; but if it appears that different minds may reasonably arrive at different conclusions the council has not exceeded its power in adopting the ordinance in question; Laugel v. Bushnell (City), 197 Ill. 20 [63 N. E. Rep. 1086; 58 L. R. A. 266]; Bowers v. Indianapolis, 81 N. E. Rep. 1097 (Ind.).

We are of the opinion that the ordinary mind would be in doubt whether the prohibition is unreasonable, the difficulty lying in the manner of fixing and declaring the density of the smoke prohibited; but-it will be presumed, in the absence of proof to the contrary, that council duly investigated the subject and adopted this particular scale upon, the ground of accuracy and precision; and unless it is clearly unreasonable or in restraint of trade the ordinance should not be declared void. White v. Kent, 11 Ohio St. 550.

The defendant, Burkhardt,' is charged, as president and generas manager of the Gibson House hotel, with unlawfully permitting the emission and escape of smoke. It is admitted in the record that he is president and general manager of the A. G. Corre Hotel Co., which runs the Gibson House, and did at the time complained of. But it does not appear that he personally permitted or had anything to do with the emission of the smoke.

Under the ordinance the corporation permitting the emission of smoke, or the employe causing it, should have been prosecuted.

Judgment affirmed. 1

Swing and Smith, JJ., concur.


author: CRAINE, J.

text:
    CONTRACTS — INFANTS.
    [Richland (5th) Circuit Court,
    January 31, 1908.]
    Taggart, Donahue and Craine, JJ.
    International Text Book Co. v. Carl W. Alberton.
    Suit asaiust Iitoant on Exphgss Con.tbact fob Necbssaeies.
    A suit cannot he maintained against an infant on his express contract for necessaries, without an averment and proof that the price to he paid for such necessaries was reasonable.
    [Syllabus by the court.]
    D. C. Harrington and George Brimkerhoff, for plaintiff in error.
    H. T. Manner, for defendant in error:
    Cited and commented upon the following authorities: Turner v. Gaither, 83 N. C. 357 [35 Am. Rep. 574]; Middlebury College v. Chandler, 16 Yt. 683 [42 Am. Dec. 537]; Lemmon v. Beeman, 45 Ohio St. 505 [15 N. E. Rep. 476]; Gregory v. Lee, 64 Conn. 407 [30 Atl. Rep. 53; 25 L. R. A. 618]; Jones v. School of Telegraphy, 122 Wis. 318 [99 N. W. Rep. 1043]; Hamer v. Dipple, 31 Ohio St. 72 [27 Am. Rep. 496]; 1 Am. Lead. Cas. (5 ed.) 300.
   CRAINE, J.

In an action brought in the court of common pleas of Richland county, by the plaintiff in error against the defendant in error, a verdict was rendered for the defendant. A motion for a new trial having been made and overruled, judgment was rendered in favor of the, defendant; whereupon the plaintiff instituted error proceedings to this court and asks this court to reverse the judgment of the court of common pleas for numerous reasons set forth in its petition in error. Upon an examination of the pleadings and evidence in this case, we are. convinced that the verdict and judgment in the court of common- pleas was right and that there is one question in this case which is decisive of the case.

The petition of the plaintiff alleges in substance that it entered into a contract with the defendant, whereby the plaintiff was to furnish the defendant .with a course of correspondence instructions in the subjects embraced in the electric scholarship, with copyrighted instruction papers, examination papers and drawing plates, prepared for such scholarship; in consideration of which, the defendant agreed to pay the plaintiff the sum of $100 in installments as these matters and things were furnished by the plaintiff to the defendant; that the plaintiff has furnished certain parts of the things agreed by it to be furnished and that the defendant has paid for the same; that it is ready and willing to perform the balance of its contract and furnish the things agreed by it to be furnished, but that the defendant has refused to accept the same and has refused to pay any further amount on this contract and that there is due the plaintiff the sum of $68, together with interest, on a part of the contract, viz., for the things not delivered under the contract and which the defendant has refused to accept, for which it asks judgment against the defendant.

To this petition the defendant filed an answer, in which he alleges that at the time of the entering into the contract set forth in the petition, he was a minor. Plaintiff filed a reply to this answer, in which it admits the minority of the defendant at the time of entering into the contract, but avers that the matters and things to be furnished by it to the defendant were necessaries.

On this state of the pleadings, the question arises whether or not the plaintiff can maintain an action. The plaintiff contends that this contract being for necessaries, an action would lie for its breach; whilst on the other hand the defendant claims that the contract was not for necessaries, and furthermore that even if it were for necessaries, the plaintiff cannot recover from an infant upon an express contract. Assuming for the purpose of this case that the contract was for necessaries, the question is, can an infant be sued upon his express contract f

The defendant in support of his contention has cited to us Jones v. School of Telegraphy, 122 Wis. 318 [99 N. W. Rep. 1043], a part of the syllabus of which' reads as follows:

“An infant is bound by implied contract to' pay reasonably for necessaries furnished him, but is not liable therefor upon an executory contract to furnish them, nor upon an express contract.”

In Gregory v. Lee, 64 Conn. 407 [30 Atl. Rep. 53; 25 L. R. A. 618], another authority cited by defendant, a part of the syllabus reads as follows:

“The obligation of an infant to pay for necessaries furnished him is one imposed by law rather than one which arises from his contract, as the party furnishing the necessaries can recover only their fair and reasonable value. ’ ’

These cases, in our opinion, are well considered cases and seem to be founded upon reason and suggest to -us the idea that they are sound law. An express contract for necessaries might be a grossly unjust and inequitable one, and to say that an infant must pay the consideration agreed by him to be paid for necessaries, irrespective of the value thereof, would be taking from him the protection the law has thrown around minority. We think that even if the plaintiff sets forth the terms of the express, contract in its petition, it would have to go a step further and allege that the sum agreed to be paid, by the plaintiff, was a reasonable one for the things to be furnished by the plaintiff, and upon the trial, it would be incumbent upon the plaintiff to establish this fact by evidence. By doing this the plaintiff would not be recovering upon its express contract, but would be recovering upon an implied contract for the reasonable value of the books and instruments furnished by it. In the case at bar, there is no allegation as to the reasonableness of the contract or its consideration, neither was. there any evidence offered tending to establish such reasonableness.

We are further of the opinion that in contracts for necessaries furnished to a minor, a recovery can only be had for the fair value of the executed part of the contract, and that an infant can repudiate the-executory part of the contract, at any time, even though such executory part of such contract be for necessaries, and that all the plaintiff can do is to recover the fair and reasonable value of the necessaries actually received by the minor.

In this particular case it affirmatively appears that the father of the . defendant is living, and it nowhere is alleged or attempted to be proven that the father is not financially responsible, or that he has not furnished the defendant with all the necessaries suitable to his condition in life.

Revised Statutes 3110 (Lan. 4810) provides:

“The husband must support himself, his wife, and his minor children out of his property or by his labor, If he is unable to do so, the wife must assist him so far as she is able.”

The father is entitled under the law to all of the wages of the minor son, and in part consideration, at least, it is the duty of the father to support the son; and that means, furnish him with the necessities of life. If a minor, whose father was able and willing to furnish him with the necessaries of life, could enter into express contracts for necessaries and be liable in all eases under such contract, then the money arising from the services of the son might be diverted from the father, to the son’s creditors, and the pecuniary relation between the father and the son be materially affected.

The foregoing being our views, we think the judgment below' was right and that the only error committed in the court below, was in the court not directing a verdict for the defendant. The judgment of 'the court of common pleas will be affirmed at tbe cost of tbe plaintiff in error, and this cause remanded to tbe court of common pleas for execution.

Taggart and Donahue, JJ., concur.


author: PARKER, J.

text:
    RAILROADS — STREET RAILWAYS.
    [Lucas (6th) Circuit Court,
    July 2, 1907.]
    Haynes, Parker and Wildman, JJ.
    Lima & Tol. Trac. Co. v. Toledo Ry. & Term. Co. et al.
    1. Determination of Manner of Crossings by Courts.
    Laning 5298 (B. 3333-1) which provides for the, determination, by the courts, of the mode and manner of one railroad or street railway’s crossing another, and the apportionment of the cost of the construction thereof, applies to all crossings, whether at grade or over or under grade, where the companies affected cannot agree between themselves as to the mode and manner and the division of the expense of the said crossings.
    2. Cost of Crossing to be Borne Equally by Both Companies.
    An established and operating railroad, by reason of its having come upon the ground first, acquires no proprietary rights affecting a division of the cost of a crossing superior to those of a later company seeking a crossing of the former; and where the crossing will be equally serviceable to both companies, the expense thereof should be equally divided between the two companies, and this even though the crossing will be of no special benefit to the old company.
    [For other cases in point, see 7 Cyc. Dig.,- “Railroads,” §§ 319-326; “Street Railways,” §§ 331-344. — Ed.]
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    Smith & Beckwith and Cable & Parmenter, for plaintiff.
    C. G. Cunningham, for defendants.
   PARKER, J.

This is a proceeding brought by tbe plaintiff against the defendant under the act of May 10, 1902 (95 O. L. 530), entitled “An act to provide for one steam railroad crossing another steam railroad;” and particularly Sec. 1 of that act, as amended on April 13, 1904 (97 O. L. 548; Lan. Rev. Stat. 5298; B. 3333-1).

The plaintiff is a company incorporated for the construction and operation of an electric railroad. The defendant company owns and operates a steam railroad. The railroad of the plaintiff company is to extend from the city of Lima in Allen county, Ohio, to the city of Toledo, Ohio; and the tracks of the two companies will cross at a point about a mile southwest of the city limits. The defendant company operates a belt line which extends around the city of Toledo.

In its application the plaintiff, among other things, says that south of the point of crossing the railway of the plaintiff is located and being constructed along the southeast side of, and parallel to, the railroad of the Wabash Railroad Company, extending in a northeasterly and southwesterly direction, and, if continued in said direction, it will cross the railroad of the defendants near where the railroad of the defendants and •that of the Wabash Railroad Company cross at grade. The plaintiff says that about 'seventeen hundred feet north of where the railway of •the plaintiff crosses the railroad of the defendant, plaintiff’s railway will also cross a highway and the tracks of the Toledo Urban and Interurban Railway Company, which said highway and said interurban railway are parallel and adjacent to one another.

Plaintiff says that its said line of railway can be so located parallel and adjacent to and along the southeast side of the right of way of the Wabash Railroad Company so that it will cross the tracks of the defendant company at grade and will cross over the tracks of the said The Toledo Urban and Interurban Railway Company by an overway passage where the said The .Toledo Urban and Interurban Railway Company’s tracks are constructed under the right of way of the Wabash Railway Company; which method of construction will require the plaintiff’s tracks to cross the said highway at grade, unless said highway is lowered so as to pass under the tracks of the Wabash Railroad Company.

Plaintiff says that- in constructing its said railroad upon the- line above specified, if the defendants be required to lower the tracks of said defendant company, defendant will avoid the two grade crossings referred to, viz: the present grade crossing of the defendant company’s tracks and the tracks of the Wabash Railroad Company, and also the tracks of the plaintiff. Plaintiff says that by diverging from the parallel line with the right of way of the defendants at a point about three hundred feet from the right of way of the Wabash Railroad Company, it is possible to construct a crossing under the railway of the defendants, which said constrdction will require the expenditure of large sums of money, namely about $12,000, and will require the plaintiff to construct at the crossing of the said highway above referred to, and about fifteen hundred feet north of the crossing of the railway of the defendants, an undergrade crossing, and in doing so plaintiff will be required to expend large sums of money in readjusting said highway so as not to change materially the "grade of' the same, and at a cost of about $3,500; and that course will also require plaintiff to cross under tbe railway of the said The Toledo Urban and Interurban Railway Company, the cost of which crossing plaintiff is informed and believes will be about $17,000.

Plaintiff says that the maximum grade of its said railway is 2 per cent. That it is unable to agree with the said defendants as to the manner in which the tracks of the railway of the defendants shall be crossed by the tracks, of the plaintiff. It also sets forth that appropriate proceedings are pending in the probate court of Lucas county to acquire the right to cross the right of way of the defendant company. There are other averments, to which I need not give special attention. The prayer is, that the court of common pleas of Lucas county, or a judge thereof, ascertain and determine by its decree the mode and manner in which the tracks of the plaintiff shall cross the tracks of the said The Toledo Railway and Terminal Company, and if the court order a separation of grades, or decree that the tracks of the plaintiff shall be constructed under the tracks of the railway of defendants, that the court equitably apportion the initial expense of such construction and crossing, and the expenses of maintenance thereof, between the parties to this action; and some other incidental relief is asked for.

The ease was tried in the court of common pleas, and a crossing under the tracks of the defendant company having been ordered by that court, the plaintiff company was required to pay 86% per cent of the cost of the necessary construction, the other part of the cost to be paid by the defendant company. From that judgment the plaintiff appealed to this court. The case has been submitted to us, and we have heard the evidence and the arguments of counsel. The chief point of controversy in the case is as to the apportionment of the cost of the construction made necessary by thn road of the plaintiff company passing under the road of the defendant company at the point mentioned. The plaintiff company was not satisfied with the judgment of the court of common pleas, feeling that too'large a proportion of the cost had been apportioned to it, and therefore it appealed. On the other hand, the defendant company insists that, if it should pay any part of the cost, it should pay no greater part than has been apportioned to it. But it also contends (and this is a question which is presented at the very threshold of the case) that the matter is not one calling for the interposition of the court under this statute; that the situation is not such as to give to the plaintiff the right to invoke this statute, or the action of the court under it.

It appears from the evidence, and it stands practically undisputed that, having in view the crossing beneath the turnpike mentioned, and beneath the tracks of the urban and interurban road — something contemplated by the plaintiff, and apparently practically decided upon— it will be more convenient and economical for the plaintiff to cross underneath the tracks of the defendant company than to cross the same at grade. If the plaintiff had not agreed or decided upon crossing beneath the turnpike mentioned and the tracks of the urban and interurban _ road, it is not apparent that it would be more convenient or economical for the plaintiff to pass beneath the tracks of the defendant company, •but as the situation has developed, considering the topography of the country, and considering the purpose of the plaintiff to pass beneath the tracks of the urban and interurban and the turnpike in that vicinity, it is agreed on behalf of the plaintiff that even if the defendant company’s tracks were not located as they are, or even if the plaintiff company should be required to pay the whole cost of the construction made necessary by this crossing beneath the tracks of the defendant company, the plaintiff company would probably cross in that way, to wit, beneath these tracks; that even if the whole cost were to fall upon the plaintiff, it would still be for it the most feasible and economical method of crossing. This is so chiefly because of a gully that it would enter and traverse in making the crossing of the tracks of defendant, and in approaching the point where it crosses the turnpike and the tracks of the urban and interurban.

There would be great expense, perhaps from $10,000 to $12,000, in the making of fills across lower levels in order to reach the tracks of the defendant company at grade, and all this is avoided by crossing beneath the tracks through the gully. And it appears that, in the conversations and negotiations between the officers and, representatives of these two companies respecting this proposed crossing, they have practically agreed that the crossing beneath the tracks would be most practicable and most desirable for both companies. They have practically agreed that the crossing should be made in that way; and perhaps it may be fairly said that the plaintiff has practically determined that the crossing shall be made in that way, unless some unforeseen object shall prevent, and that the defendant company makes no opposition to the crossing’s being made in that way, provided it is not required to pay any of the expense incident to the making of such crossing. Thus far the minds of the parties have met upon the matter. Thus far they are in agreement; and yet it cannot be said that they have entered into an’ agreement having the force and effect of a contract, enforcible by one against the other, that the crossing shall be by this route through the gully and beneath the tracks of the defendant company. Had they entered into an agreement having the force and effect of a contract covering the subject-matter, then there would be no occasion for an appeal to the court.

While the statute evidently has in view, primarily, the interests and safety of the public in the construction of railroad crossings, yet the legislature has seen fit to provide that where the companies agree upon the crossing, the court need not be appealed to under this statute. It does not follow, however, that there are not other statutes that would have influence upon the matter, and that might prevent the agreement of the parties from being carried out if it were found to be inimical to the public interest. It is insisted, however, on behalf of the defendants, that the primary purpose of this statute is to provide for the separation of grades, meaning by that the prevention of grade crossings, by requiring that the tracks’ of one road shall be above those of the other, and that in a ease where a grade crossing is not at all practicable, or in a ease where the parties have agreed that there shall not be a .grade crossing, the matter is removed from the jurisdiction of the ■court; that in such cases there is nothing for the court to do in the premises; that there is then nothing left but to determine the form of ■construction to effect such crossing, and to determine the division of the ■cost between the parties. That for this purpose this statute cannot be brought into requisition.

No doubt one o'f the chief purposes of the law is to prevent, where reasonably practicable, grade crossings; but we do not adopt the view of counsel that where this object is accomplished because of the impractica"bility of a grade crossing, or because of the agreement of the parties upon a different -kind of crossing, there is nothing left for the ■court to do. As the law stood before the enactment of this statute in 1902, there seems to have been no way of determining through the action of a court, or otherwise than by the agreement of the parties, what the form of construction of a crossing should be, whether a grade crossing or •one not at grade. If, for instance, under circumstances like those presented here, the plaintiff company should condemn the right to cross, and if its right to cross should be limited by the proceedings in condemnation to a crossing beneath the tracks of the defendant company, yet the form of construction, whether by an iron bridge, or a stone culvert, or a cement arch, or what not, as we understand it, could not be determined by the judgment of any court or in any manner except by agreement of the parties. Naturally it would fall out, and must have occurred in many cases, that the parties would be unable to agree upon the form of construction of the crossing, and great barm or injustice might result to-the company over and across whose tracks the right of way had been acquired by the condemnation proceedings through the construction of a crossing unsafe and inconvenient for it. We understand that this statute was meant to reach cases of that character, as well as to prevent . grade crossings where practicable; that it was meant to provide for safe crossings, whether grade crossings or crossings not at grade, and whether such safety was to be provided for by derailing and other safety devices where the crossing was at grade, or by proper bridges or structures where the crossing was not at grade.

If the statute is not available to a party who agrees that a grade crossing may, should and shall be avoided, but is available to those only who stubbornly insist upon a grade crossing, regardless of the dictates of humanity, business policy and common sense, then it offers a premium to those who seek to defeat one of its principal objects, i. e., the prevention of grade crossings; or to those who in bad faith to the court pretend that they desire a grade crossing merely to obtain the benefit of the provisions as to the division of expense, and its benefits are withdrawn as a sort of penalty from tho'se who seek to promote the policy of preventing grade crossings. A construction that would result in such absurdity and injustice should not be adopted unless it is plainly required by the words of the law.

The statute as it was firsl passed seems to have been imperfect, in that it did not provide for a division of the cost, as we think it should-have done, and this imperfection in the statute appears to have been recognized by the legislature later on when the amended section 1 was-passed. Now Sec. 1 as amended provides:

“That where it becomes necessáry, outside the corporate limits of a city or village, for the track of a steam, street, electric or interurban railroad company to cross the track of another steam, street, electric or interurban railroad company, unless the manner of such crossing shall be agreed to between such companies, it shall be the duty of the court of common pleas of the county wherein such crossing is located, or a judge thereof in vacation, on application of either party, to ascertain and define by its decree the mode of such crossing which will inflict the least practical injury upon the rights of the company owning or operating the road which is intended to be crossed.”

I pause at that point. That, it will be observed, is not limited to cases where a grade crossing is practicable. Nothing thus far has been said about grade crossings, nor any other particular manner of crossing; and the matter which is to be presented to the court if not agreed upon is the mode of crossing, and that is to be fixed. That is to be fixed if the parties are unable to agree upon the manner of crossing, and we' understand the words “mode” and “manner” to be used there synonymously; and we do not understand them to be confined to the idea of1 whether the crossing shall be at grade or above grade or beneath grade, but that the manner or mode of crossing includes as well the construction by which the crossing is made possible in any case; that the thing the parties must agree upon, in order to put the matter beyond the province of the court, if the court should be appealed to, is not only whether there shall be a grade crossing or an overhead crossing or an underway crossing, but the kind of construction in either case, and we suppose, as well, the division of the cost thereof, though as to that we need not say in this case because the question is not presented. It is possible that if all else were agreed upon excepting the division of the cost, the parties might not be able to bring that matter before the court for adjudication. As I say, we do not pass upon that question. We do hold, however, that in order to make an agreement that would be effective as an answer to the application to the court, it must at least cover the form of construction, the kind of construction, whether by bridge or trestle or culvert or arch, or what not, as well as the question whether it shall be located above or below or at grade, or at one point or another along the line of the road to be crossed. The statute proceeds :

“And, if in the judgment of such court or such judge thereof, it is reasonable and practicable to avoid a grade crossing, it shall by its process prevent a crossing at grade.”

That is to say, that object, the prevention of grade crossings, is to be kept steadily in mind by the court in fixing what the crossing shall be, what the construction shall be, in dividing the cost, and all that; for while certain forms of construction may be necessary to provide for the safety of the traveling public where the crossing is not at grade, or certain forms of safety devices may be essential to provide for safety when 'the crossing is at grade, it is to be borne in mind that one of the most effective means to secure safety is to prevent the grade crossing where possible. There are certain conditions mentioned in the statute under which a grade crossing cannot be prevented, conditions respecting the grade established by the company building the new line, and with respect to the high-water mark, etc. Then follows this provision, which is added to the original section:

“The court shall, in its order, equitably apportion the initial expense of such construction or crossing and the expense of maintenance thereof .among the parties interested; ’ ’ and there is also a provision for .appeal, under which the matter has been brought to this court.

Now the initial expense is to be equitably apportioned, and, as has been well said, that does not necessarily or under all circumstances mean •equally divided. It is urged on behalf of the defendant that, since its railroad is in place and in operation, bridging this gully by trestle work and fills, it should not be required to pay any part of the expense nf the construction required for this crossing, since the construction will -be of no advantage, to it. It appearing that a water course traverses this gully and passes under the tracks of the defendant company, and that some time in the course of a few years it may be necessary to replace the piling, and that it will probably be expedient to put a culvert •over this water way. It is conceded by the defendant company that it may be just that it should bear á share equal to the expense which would fall upon the defendant company if the plaintiff company should not occupy that place, i. e., that it might be equitable to apportion to the defendant company as much as that culvert would cost. It appears that it would need to be five or six feet high and seven or eight feet wide, to accommodate the stream, and that it would cost from $1,000 to $1,200.

On the other hand it is urged that in the eye of the law the companies have an equal right at this place — an equal right to cross at this point; that by coming upon the ground first the defendant company has not acquired any such proprietary right as enables it to levy tribute upon the plaintiff company, or to say to the plaintiff company:

“This construction is made necessary by your coming here, and therefore you should pay the whole cost of it.”

It is pointed out that if the plaintiff company had come upon the ground first and occupied this gully, no .overhead construction would have been required for its purposes; that the defendant then coming ■along with its road to span the gully might have been met with the proposition that it came last, and the expense of the bridge over the gully and all construction necessary to protect the plaintiff company and its tracks should fall upon the defendant company. It is said by counsel for 'the plaintiff company that this would not be fair, would not be equitable, but that the matter should be considered and adjusted as if the parties had come to this point to cross at the same instant, with equal rights, and that then and there the necessity had arisen for a construction which would enable one to cross over.the other. In that event, it seems to us quite apparent that the cost should be equally divided between them; and if that is the proper view of the matter, it follows that the judgment of the court in this case should divide the cost equally.

So the problem seems to our minds to resolve itself into a question as to whether the defendant company has acquired any superior proprietary rights in the premises by reason of its having reached the place of crossing first with its tracks. If so, the same result would probably follow whether it had reached that point a score of years or an hour before the plaintiff company had readied it, or long enough before to have constructed a trestle sufficient to carry its trains over the gully.

If we understand the views of the Supreme Court of Ohio, as expressed in the case of Lake Shore & M. S. Ry. v. Railway, 30 Ohio St. 604, they require us to resolve this question in favor of the contention that no superior right is acquired by the company that first comes upon the ground. These franchises are granted to these public service corporations because of the supposed advantages to the public. Their right and authority to appropriate right of way are based upon the same ideas; and we believe it is not contemplated by law, especially not by this statute, that one such corporation can place itself across the track of another, or the contemplated track or course of another, in such a way as to make it more burdensome or difficult for the company coming upon the ground later to traverse such track, except as changed physical conditions may make it more expensive and difficult. And that when it comes to the changing of such physical conditions in order that both may pass a given point, and in order that the interests of the public may be subserved, unless there is some special reason why there ■should be a different division of the expense, we think it should fall upon the companies equally.

We may imagine cases where there would be such special conditions, as if, for instance, where there had been expensive work constructed by the defendant company at the point of crossing by the defendant company, so that a line laid out by the plaintiff company would require its destruction; or if the structure, when constructed, would afford some special advantages or facilities to one and not to the other. But here all that either company acquires by this construction is a crossing at that point. One company is enabled to go beneath the lines of the other; and that is all they have in the matter, all the good they get out of it, and each appears to be equally served by the construction. We have endeavored to apply the principles heretofore recognized by us as applicable to such cases, i. e., in the unreported case of Akron & C. J. Ry. v. Railway, decided by this court'in Huron county.

Now, as to the form of construction, we conclude to order the same as was ordered by the court of common pleas. Perhaps that is not the very best that could be constructed, perhaps not as good as that proposed by the plaintiff company; but it seems to be safe and serviceable, and we think will answer all the purposes of the parties and the interests of the public.

The cost of the construction and maintenance of the abutments and the girders should be equally divided. ■ Of course the track that the defendant company lays upon the girders is a matter the expense of which will fall upon the defendant company; and in the same way, the track of the plaintiff company will be a matter for it to pay for itself. But everything pertaining to the abutments and the girders, the work and the materials and all, and this we understand will span the stream so as to allow the water to pass — we understand that is provided for— shall be divided equally between the parties. And the costs of this proceeding will likewise be divided between the parties equally.


author: WINCH, J.

text:
    COVENANTS — MORTGAGES.
    [Cuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Winch, Henry and Marvin, JJ.
    M. M. Brown v. Cleveland Trust Co.
    Stipulations in Mortgage Facilitating Sale or Premises in Parcels not Available to Mortgage aeter Default. 1 ■ ■ •
    A covenant in a mortgage, that the mortgagee shall release a portion of the mortgaged premises from the lien of the mortgage at the request of the mortgagor, upon payment of a stipulated amount, is not available to the mortgagor after his default and after foreclosure proceedings are instituted.
    [Proof of this decision and syllabus has been submitted to Judge Winch and corrected.]
    Error to Cuyahoga common pleas court.
    Carr, Stearns & Chamberlain, for plaintiff in error.
    Henderson, Quail & Siddall, for defendant in error.
   WINCH, J.

The sole question presented by the agreed statement of facts in this case is, whether a covenant in a mortgage, that the mortgagee shall release a portion of the mortgaged premises from the lien of the mortgage at the request of the mortgagor, upon payment of a stipulated amount, is available to the mortgagor after his default and after foreclosure of the mortgage has been begun.

The adjudicated cases upon this subject seem to agree that such stipulations are inserted in mortgages for the purpose of facilitating the sale of the mortgaged premises in parcels, and that it would be inequitable to refuse the benefit of the provision to one who, relying thereon, had purchased before foreclosure was begun. But as to the mortgagor, it has been held that the covenants of the mortgage are mutual and that it would be inequitable to permit the mortgagor to redeem part of the mortgaged premises under the release agreement, while he was in default and unwilling or unable to keep his agreement as to the payment of the balance due on the mortgage and had compelled the mortgagee to institute foreclosure proceedings. Some of the eases emphasize this conclusion by showing that it would be a fraud upon the mortgagee to put the mortgagor in position to select the most valuable lots for release, while in default, thus reducing the mortgage security.

A majority of the court is of this opinion.

Attention is called to. the following cases supporting these conclusions: Chrisman v. Hay, 43 Fed. Rep. 552; Reed v. Jones, 133 Mass. 116; Commercial Bank v. Hiller, 106 Mich. 118 [63 N. W. Rep. 1012].

On the other hand, it is claimed that if the right to a release is to be denied after foreclosure, the mortgage should so state.

The contrary is held in the case of Vary v. Chatterton, 50 Mich. 541 [15 N. W. Rep. 896], and the cases cited in support of this contention are all distinguishable. The case of Vawter v. Crafts, 41 Minn. 14 [42 N. W. Rep. 483], involved the rights of a purchaser before foreclosure. The same is true of Clark v. Fontain, 135 Mass. 464, and Clark v. Fontaine, 144 Mass. 287 [10 N. E. Rep. 831]; these cases do not overrule the previous case of Reed v. Jones, swpra. The same may be inferred as the fact in the ease of Gammel v. Goode, 103 Iowa 301 [72 N. W. Rep. 531], though the statement of the case does not make this point plain. However that may be, the supreme court of Iowa later made its views clear in the case of Baldwin v. Benedict, 111 Iowa 741 [82 N. W. Rep. 956], where it held:

“A mortgagor, entitled to pay part of the mortgage debt, and to demand a release of a proportionate amount of the land ‘during the pendency of the mortgage,’ cannot avail himself of such right after default, and after action has been commenced.”

The case of American Net & Twine Co. v. Githens; 57 N. J. Eq. 539 [41 Atl. Rep. 405], involved four independent owners who jointly mortgaged their lands. The facts are peculiar and are sufficiently distinguished in the opinion from the facts in the case of Reed v. Jones,, supra.

However the law may be upon the general proposition discussed,, we are all agreed that the provision in question in the mortgage now • under consideration is so phrased as inferentially to limit the right, of exercising the privilege thereby conferred “until the maturity of the-bonds.”

We hold that the equities of the matter are with the trust company and the judgment is affirmed.

Henry and Marvin, JJ., concur.


author: HENRY, J. WINCH, J.,

text:
    FRAUD — NOTICE—PARENT AND CHILD — UNDUE INFLUENCE-
    [Cuyahoga (8th) Circuit,
    November 6, 1907.]
    Winch, Henry and Marvin, JJ.
    Mabel Lane v. Reserve Trust Co.
    Notice of Undue Parental Influence over Fiduciary Chargeable if Discoverable by Ordinary Diligence.
    Protection of property rights of persons in actual or Quasi wardship relations is a paramount purpose of the law, which views with suspicion transactions between fiduciaries and their wards, and requires third persons as parties to such transactions, to make reasonable inquiry when the known facts suggest improper advantage of, or undue influence over, the former. Hence, where a father procures his daughter shortly after her becoming, of full age to make a mortgage to a third party for the father’s benefit the doctrine of the English Chancery decisions applies, and the third party seeking to sustain the transaction, though without actual knowledge of undue influence or duress, is chargeable with the duty of investigating the daughter’s freedom of will in making-such conveyance and becomes subject to such equities as may exist between parent and child. Judge Winch dissents.
    [Proof of this decision and syllabus has been submitted to Judge Henry and corrected.]
    Error to Cuyahoga common pleas court.
    Mathers & Orgill, for plaintiff in error:
    Cited and commented upon the following authorities: Archer v. Hudson, 7 Beav. 551; Maitland v. Irving, 15 Sim. 437; Maitland v. Backhouse, 16 Sim. 58; Espey v. Lake, 10 Hare 260; Savery v. King, 5-H. L. Cas. 626; Kempson v. Aslibee, 10 L. R. Ch. 15; Baker v. Bradley, 7 De. G. M. & G. 597; Bridgman v. Green, 2 Yes. Sr. 627; Huguenin v.. Baseley, 14 Yes. Jr. 273; Cooke v. Lamotte, 15 Beav. 234; Whelan v. Whelan, 3 Cow. 537; Bennett v. Wade, 1 Dick. 84; Davidson v. Bussell,. 2 Dick. 761; Noble v. Moses, 81 Ala. 530 [1 So. Rep. 217; 60 Am. Rep. 175] ; Noble v. Moses, 74 Ala. 604; Bergen v. Udall, 31 Barb. 9; Berk-meyer v. Kellerman, 32 Ohio St. 239 [30 Am. Rep. 577].
    Howland & Niman, for defendant in error:
    Cited and commented upon the following authorities: Truman v. Lore, 14 Ohio St. 144; Mallow v. Walker, 115 la. 238 [88 N. W. Rep. 452; 91 Am. St. Rep. 158]; Delaplain v. Grubb, 44 W. Ya. 612 [30 S. E. Rep. 201; 67 Am. St. Rep 788]; Coleman v. Smith, 55 Ala. 368; Moses v. Dade, 58 Ala. 211; Rogers v. Adams, 66 Ala. 600; Green v. Scranage, 19 la. 461 [87 Am. Dee. 447]; Baldivin v. Snowden, 11 Ohio-St. 203 [78 Am. Dec. 303] ; Willis v. Baker, 75 Ohio St. '291 [79 N. E. Rep. 466]; Crirn v. Grim, 162 Mo. 544 [63 S. W. Rep. 489; 54 L. R. A. 502; 85 Am. St. Rep. 521]; Badclijfe v. Biles, 94 Ga. 480 [20 S. E. Rep. 359]; Jenkins v. Pye, 12 Pet. 241 [9 L. Ed. 1070]; Thornber v. Sheard, 12 Beav. 589; Noblé v. Moses, 81 Ala. 530 [1 So. Rep. 217; 60 Am. Rep. 175]; Noble v. Moses, 74 Ala. 604.
   HENRY, J.

The plaintiff prosecutes error from final judgment rendered upon demurrer sustained to her second amended petition, wherein she prays cancellation of her real estate mortgage to the defendant, given under alleged parental duress, while she still lived with her parents, soon after she attained her majority and to secure a loan to her father. She alleges defendant’s actual knowledge of these facts, save the undue influence, which, she says, it either knew or by the exercise of ordinary care would have known. The parents were originally parties defendant, but Were dismissed by the court below as improperly joined.

Under the principles laid down in Berkmeyer v. Kellerman, 32 Ohio St. 239, 253 [30 Am. Rep. 577], the petition here would be sufficient as against the parents, had the mortgage been given to them. At page 252, the opinion by Johnson, J., quotes approvingly from Cocking v. Pratt, 1 Ves. Sr. 400, that “the court will always look with a jealous eye upon a transaction between parent and child just come of .age, and interpose if any advantage is taken.” The fourth paragraph .of the syllabus indicates moreover that the burden of proving the .good faith of such. transactions is upon him who is alleged to have profited unjustly from the fiduciary relation established.

But in Jenkins v. Pye, 37 U. S. (12 Pet.) 241 [9 L. Ed. 1070], it is held that a conveyance from child to parent is not prima facie fraudulent; whence it evidently follows that the burden of proof is on him who charges the fraud.

In this forum we are of course bound by the English rule, so far as it is sanctioned by our state Supreme Court, in preference to the so-called American rule enunciated by the United States Supreme. •Court. Applying, therefore, the principles of Berkmeyer v. Kellerman, supra, to the case in hand, what duty, if any, rested upon the bank, knowing that it was lending money to the father upon the security of the child’s property, and that a court, viewing the transaction with a jealous eye would call upon the father to vindicate its good faith? Manifestly the bank’s duty was to use reasonable care to ascertain whether or not the father was acting bona fide, and whether' or not the child was actuated only by her own free will.

The petition, however, alleges that by the exercise of such care the defendant would have discovered the undue parental influence under which the mortgage was executed, acknowledged and delivered. It is, therefore, chargeable with such knowledge as it would thus have acquired, and stands in no better position than the father himself.

It is no answer to this conclusion to say that the notary’s certificate of acknowledgment cannot be varied by parol evidence; for the deed and acknowledgment are alike assailed directly for fraud. Nor is it an answer to say that the requirements of business should be held to relieve banks from the hazard and burden of such a rule. It cannot be time that banks will be greatly prejudiced by having to make reasonable inquiry as to the fact of undue influence in eases where they know that a fiduciary relation exists, and that the proposed transaction can stand only upon the footing of utmost good faith.

We do not hold that third parties acting in such a transaction must ascertain bad faith at their peril, but only that they must make reasonable inquiry when the known facts suggest improper advantage taken of a fiduciary relation. The practice of English banks, in having the person reposing confidence exhibit competent independent advice that he is free from undue influence before allowing a gift to his fiduciary to be consummated through the medium of a bank loan or the like, may not always be essential to the validity of gifts of this sort; but though the authorities do not go that far, the practice is manifestly a salutary one. The protection of the property rights of persons in actual or quasi wardship from the greed of their protectors is plainly paramount in importance to the mere convenience of banking houses in transacting business with persons thus related.

The principles herein approved were applied in a very similar and exceedingly well considered American case, Noble v. Moses, 81 Ala. 530 [1 So. Rep. 217; 60 Am. Rep. 175], reversing the previous conclusions of the court in the same ease, Noble v. Moses, 74 Ala. 604. While that decision is perhaps not in accord with the current of American authority, we deem it to be the necessary corollary of the holding in Berkmeyer v. Kellerman, supra.

A majority of the court, therefore, our Brother Winch dissenting, hold that the judgment of the court of common pleas must be and the same is reversed, and the cause remanded.

Marvin, J., concurs.

WINCH, J.,

dissenting.

I dissent in this case because I believe that the petition does not sufficiently charge the defendant with knowledge of the imposition and fraud alleged to have been practiced upon the plaintiff by her father.

Without resort to presumptions of law, the most the defendant is alleged to know is the relationship of the plaintiff to her father and that she was making a gift of her property to him. This she had a right to do and from certain authorities, two of which I shall mention, I believe that the presumption is in favor of the validity of such gifts.

One of the cases referred to is Jenkins v. Pye, 37 U. S. (12 Pet.) 240 [9 L. Ed. 1070], and part of the syllabus or head note, reads as follows:

“The complainants, as the ground to invalidate a deed made by a daughter of twenty-three years of age to her father, by which she conveyed the estate of her deceased mother to her father, he having a life estate as tenant by curtesy in the same, asserted that such a deed ought, upon considerations of public policy, growing out of the relations of the parties, be deemed void. * * * We do not deem it necessary to travel over all the English authorities which have been cited; we have looked into the leading cases and cannot discover anything to warrant the broad and unqualified doctrine asserted. All the cases are accompanied with some ingredient, showing undue influence exercised by the parent operating on the fears or hopes of the child; and sufficient to show reasonable grounds to presume that the act was not perfectly free and voluntary on the part of the child; and in some cases, although there may be circumstances tending, in some small degree, to show undue influence, yet if the agreement appears, reasonable, it has been considered enough to outweigh slight circumstances, so as not to affect the validity of the deed. It becomes less necessary for the court to go into a critical' examination of the English chancery doctrine on this subject; for, should the cases be found to countenance it, we should not be disposed to adopt or sanction the broad principle that the deed of a child to a parent is to be deemed, prima facie, void.
“To consider a parent disqualified to take a voluntary deed from his child, without consideration, on account of their relationship, is opening a principle at war with all filial, as well as parental, duty and affection; and acting on the presumption that a parent, instead of wishing to promote the interest and welfare, would be seeking to overreach and defraud his child. Whereas, the presumption ought to be, in the absence of all proof tending to a contrary conclusion, that the advancement of the interest of the child was the óbject in view, and to presume the existence of circumstances conducing to that result; such a presumption harmonizes with the moral obligations of a parent to1 provide for his child, and is founded upon the same benign principle' that governs cases of purchases made by parents in the name of a child, The natural and reasonable presumption in all transactions of this kind is, that a benefit was intended the child, because in the discharge of a moral and parental duty.”

The opinion bears out all that is stated in the head note.

This case is quoted as “the leading ease” on the subject in the case of Towson v. Moore, 173 U. S. 17 [19 Sup. Ct. Rep. 332; 43 L. Ed. 597], where it is also stated that Story, J., who sat in Jenkins V, Pye, supra, in the last edition of his commentaries on Equity Jurist prudence, stated the doctrine as follows, page 21:

“The natural and just influence which a parent has over a child renders it peculiarly important for courts of justice to watch over and protect the interests of the latter; and therefore all contracts and con--veyances, whereby benefits are secured by children to their parents,, are objects of jealousy, and if they are not entered into with scrupu--lous good faith, and are not reasonable under the circumstances, they will be set aside, unless third persons have acquired an interest under’ them, — especially where the original purposes for which they have-been obtained are perverted or used as a mere cover. But we are not to indulge undue suspicions of jealousy, or to make unfavorable pre--sumptions as a matter of course in cases of this sort.”

If the courts are not “to make unfavorable presumptions as a matter of course in eases of this kind,” why should the bank be required to ?

No answer to this question can be deduced from the statement found in the syllabus of Towson v. Moore, supra, that: “In the case of a child’s gift of its property to a parent, the circumstances attending the transaction should be vigilantly and carefully scrutinized by the court, in order to ascertain whether there has been undue influence in procuring it,” for that scrutiny is called forth by proper allegations of undue influence; a petition relying upon any presumption would be demurrable and invoke no scrutiny as to facts not presented by it.

So, here, the bank was not called, upon to scrutinize this transaction, for there was nothing in it suggesting undue influence, if we are warranted in applying the presumptions suggested by the cases from which I have quoted.


author: HENRY, J.

text:
    EQUITY — FRAUD—JUDICIAL SALES — RESCISSION.
    [Cuyahoga (8th) Circuit Court,
    March 28, 1908.]
    Winch, Henry and Marvin, JJ.
    Josephine Brickman et al. v. Louisa M. Shale et al.
    Lapse op Thirty Years with Constructive Knowledge op Merely Technical Fraud Renders Equity Stale.
    An executor’s sale of farm lands belonging to a hopelessly insolvent estate for substantially full value, purchased by a young man, without any means of his own, living with his father, who was an appraiser thereof and to whose guardian he subsequently conveyed it, will not be set aside thirty years afterwards as a sale to the appraiser in violation of act 39 O. L. 42 (Rev. Stat. 5404; Lan. 8932), when the property has vastly increased in value, the appraiser and purchaser have both died and the descendants of the appraiser. have conformed their lives to a state of family fortune of the taint wherein they had no actual notice; especially where, had there been any incentive at the time of sale, the coincidence of names of appraiser and purchaser and other known or available facts would have been naturally and promptly seized upon as a badge of fraud and inspired diligence to uncover the secret trust.
    [Proof of this decision and syllabus has been submitted to Judge Henry and corrected.]
    Appeal from Cuyahoga common pleas court.
    W. B. Neff, Berkeley Pearce and F. R. Marvin, for plaintiffs.
    M. P. Mooney, for defendants.
   HENRY, J.

This is an appeal from the judgment of the court of common pleas in an action there commenced by the heirs and legatees of Dr. Joseph T. Lammersman, who died in 1876, against Louisa M. Shale, and others, heirs of Henry Beckman, Sr., to recover such portion of a certain tract of land as still remains unsold in the hands of the defendants and for an accounting and recovery of the net proceeds of such portions of said land as have been sold by them.

The land in controversy is the same tract as the one in litigation in the case of Ostendorf v. Shale, 30 O. C. C. 378, decided by this court March 27, 1905, and affirmed by the Supreme Court, without report, Shale v. Ostendorf, 75 Ohio St. 581, and the facts in the two cases are largely identical. It is therefore unnecessary now to make a complete restatement of the matter. 1

Suffice it to say that the land in question was sold in 1877, under an order made by the probate court of this county in a proceeding for the sale of lands to pay the debts of Dr. Lammersman’s estate. Henry Beckman, Sr., was one of the appraisers of said land in said proceeding, and Henry Beckman, Jr., Ms son, purchased the land at the executor’s sale which ensued, paying therefor, in addition to the assumption of a subsisting lien thereon and the execution and delivery of his own mortgage notes, the sum of $1,053 in cash. It further appears that Henry Beckman, Sr., withdrew from his bank account at the time of this sale, a sum of money precisely equal to the cash payment thus made. Subsequently, Henry Beckman, Jr., conveyed the same land to his mother, then the guardian of her husband, Henry Beckman, Sr., under circumstances which, as we formerly held, and now hold, clearly indicate that the son intended to disclaim any beneficial interest in the property and meant the conveyance to inure to the benefit of his father.

In the former case we reached this conclusion, without deeming it essential thereto to hold unequivocally that said purchase by Henry Beckman, Jr., was made upon a secret trust for his father in fraud of the Lammersman estate. But in the present ease on the facts in evidence before us we cannot avoid this conclusion. Without rehearsing all the circumstances pro and con which bear upon the question of the intention of the Beckmans, father and son, concerning the purchase of the land, we are unable to escape the force of the coincidence, above referred to, in regard to the cash payment and the subsequent declarations made by the son disclaiming beneficial ownership of the land in controversy.

Having found that a trust was contemplated, we must also conclude that it was conceived and executed in flat violation of the act of March 29, 1841 (39 O. L. 42), entitled “An act declaratory of the law in certain cases, and to prohibit the appraisers of land from purchasing the same,” Sec. 1 whereof provides that:

“No appraiser of any lot or tract of land, which shall hereafter be directed to be sold under the provisions of any law of this state, shall become the'purchaser thereof, at any sale, wherein the price for which such real estate must sell, shall be governed by the valuation made by him, as one of the appraisers thereof.”

We do not deem valid the contention, that because the appraisal and sale, in proceedings for the sale of land of deceased persons to pay their debts, are subject to the judicial oversight and confirmation of the court in which such proceedings may be brought, this act is rendered inapplicable, in that the price for which such real estate must sell is not governed by the valuation made by the appraisers. Their relation to the sale in such eases is not essentially different from that in execution sales.

The act in question is, moreover, affirmed by the general assembly to be declaratory of the law in such cases, and as so declared, the rule is identical with that previously laid down by the Supreme Court in Armstrong v. Huston, 8 Ohio 552. It is true there is some difficulty on this point in the opinion of the court in Bohart v. Atkinson, 14 Ohio 228, where it was held:

“In proceedings in partition, an appraiser, in the absence of fraud, prior to the act of March 29, 1841, might become a purchaser :at sheriff’s sale.”

But the court pointed out (page 237) that in the partition sale, •unlike sales by personal representations, “The object of the proceeding was to enable several cotenants to enjoy each his own in sever-alty. A sale could not take place until each and all of the tenants in common had declined in court to take the property at its appraised value.” Thus the opportunity for an appraiser fraudulently to purchase property undervalued for partition can seldom arise.

The act of March 29, 1841, after the Lammersman sale took place -was superseded in the revision of 1880 by Rev. Stat. 5404 (Lan. 8932), -which is construed in Hurst v. Fisher, 64 Ohio St. 530 [60 N. E. Rep. (626], in the per curiam, at page 531, as follows:

“Where it appears, as in the present case, that the successful bid,der at a sheriff’s sale of land was one of the appraisers on whose appraisal the land was valued for sale; that the purchaser attempted to ¡discourage other bidders at the sale and prevent them from bidding; that the land probably did not bring its real value, and that the owners (the judgment debtors) were not aware of the facts as stated until rafter confirmation of the sale, execution of a deed and distribution of •the purchase money, a proper enforcement of the policy expressed in section 5404 [Lan. 8932], Revised Statutes, requires that the sale be set aside and the land again offered for sale, even though no guaranty is offered that the land will bring more. The remedy may prove somewhat harsh upon the purchaser, but if so, he has only himself to blame for the dilemma in which he finds himself-placed.”

This language, it will be observed, is of the mildest character and may be taken to imply that in the absence of actual fraud the court will not be reluctant to give intervening equities their due weight. Thus, as was held in Terrill v. Auchauer, 14 Ohio St. 80:

“A purchase of real estate at a judicial sale, by one who, at the appraisement under which such sale was made, served as an appraiser, is not, under the provisions of See. 441 of the code, strictly void, but js voidable only; and will ‘be considered fraudulent and void,’ only ■on an interposition or proceeding by a party in interest directly for "the purpose.of avoiding such sale.”

It is true, as held in Armstrong v. Huston, supra, page 236, that,

“An appraiser of' land, at an administrator’s sale, stood in such .a relation that his purchase, without fraud, could be set aside at the instance of the heirs.” But it was distinctly held in Wade v. Pettibone, 11 Ohio 57 [37 Am. Dec. 408], that this right “must be asserted within a reasonable time after notice of such purchase.”

Here no claim is made that the Lammersman property was undervalued by Henry Beckman, Sr., and his coappraisers. On the contrary, it is affirmatively shown that the appraisal was entirely adequate. The Lammersman estate was not actually defrauded by the Beckmans, father and son, in their subsequent purchase of the land. The fraud here relied on is constructive only and derives its sole basis ■and support from the provisions of the statute and the common law rule of which it is declaratory.

Moreover, the plaintiffs here were parties to the judicial proceeding which culminated in the sale in question. The record of that proceeding produced here shows that they were duly served with summons, and they are therefore conclusively chargeable with notice of each and every step, including the appraisal by Henry Beckman, the .sale to Henry Beckman, Jr., and the confirmation of these acts. They may reasonably be presumed to have known also that Henry Beckman .and Henry Beckman, Jr., were father and son. If there was any badge or suggestion of fraud, however slight, manifest in this coincidence of names and relationship of parties, the plaintiffs will be affected with notice of whatever further facts would have been disclosed confirmatory of such indication, had they then followed the matter up with reasonable diligence. In Kernohan v. Durham, 48 Ohio St. 1 [26 N. E. Rep. 982; 12 L. R. A. 41], it is said in the opinion of the •court, by Dickman, J., on page 19:

“Whenever a party has information or knowledge of certain extraneous facts, which of themselves do not amount to nor tend to show, .an actual notice, but which are sufficient to put a reasonably prudent man upon inquiry respecting a conflicting interest, claim, or right; .and the circumstances are such that the inquiry, if made and followed up with reasonable care and diligence, would lead to a discovery of the truth — to a knowledge of the interest, claim or right, which really •exists; the party is absolutely charged with a constructive notice of such interest, claim or right. The presumption of knowledge is then conclusive.”

Counsel for plaintiffs, in argument before us, contended earnestly for the proposition that the law is or ought to be such as to preclude and make void unlawful purchases riot only by appraisers, administrators, alnd other fiduciaries, but also by any 'member of their immediate families. The inference thus urged has indeed been countenanced to some extent in Riddle v. Roll, 24 Ohio St. 572, where an administrator’s sale was set aside in equity because the land was conveyed to a trustee for the use of the administrator’s wife during her life with remainder to her children begotten by.him, and with power in -the wife to sell the land, although it was clearly shown that the wife having ample means of her own, in fact, paid for the property with no assistance from and no previous understanding with her husband’

That the relation of father and son under such circumstances, ■though not so close as that of husband and wife, may nevertheless be suggestive of actual fraud, has not indeed been decided by our own Supreme Court, but is distinctly intimated in sundry other jurisdictions. Trefts v. King, 18 Pa. St. 157; Ringgold v. Waggoner, 14 Ark. 69.

It may be remarked parenthetically that at the time the Lam-mersman sale took place in 1877, there was little or no incentive on the part of his heirs and legatees to follow up a clew of this sort with any diligence whatever, for the Lammersman estate was hopelessly insolvent and the sale was, as already noted, plainly destitute of any actual fraud as distinguished from the constructive fraud which the law implies under the circumstances of this case. The property was, at that time, farm land. Thirty years later, when this suit was instituted, it had become highly valuable property in one of the best residence sections of the city of Cleveland. Had there been in 1877 any such reward for diligence in detecting and following up irregularities in the sale as are now offered to the plaintiffs in this action, it can hardly be doubted that the coincidence of names of appraiser and purchaser would have been seized upon as a badge of fraud and a clew with which to prosecute further inquiries with as much diligence as is now manifested. Had such been the case the plaintiffs would then easily have discovered that Henry Beckman, Jr., was a young man living with his father and without means of his own. They should have discovered by interrogatories, or otherwise, where Henry Beckman, Sr., kept his bank account, and they would have ascertained that he withdrew the sum of $1,053 therefrom on the very day that his son paid the $1,053 for the property in question. In other words, they would. then have uncovered the secret trust which we now find existed at that time, but which for lack of incentive they did not seek out nor discover until the litigation in the Beckman family, in the ease of Ostendorf v. Shale, supra, disclosed to the world the skeleton in the closet.

Thus, after the lapse of thirty years, when the Beckmans, father and son, are both dead, when the property in question is vastly increased in value, when a large part of the property has been sold off, when the Beckman heirs have conformed their lives to a state of the family fortune which they had no more reason to suspect was tainted than had the plaintiffs in this case, we are asked upon our consciences as a court of equity to transfer this property upon a mere technicality to those from whom no value was ever taken, and who, had the sale in 1877 been conducted with the utmost regularity, would never have enjoyed any portion of that which they now claim.

To a majority of the court this seems so utterly repugnant to equity and good conscience that we cannot accede to it. A lapse of thirty years, after constructive knowledge to the plaintiffs of such a merely technical fraud as that here complained of, renders their equity utterly stale.

In .Webster v. Bible Society, 50 Ohio St. 1 [33 N. E. Rep. 297], the opinion of the court by Williams, J., on page 18, cites with approval Baker v. Bead, 18 Beav. 398, wherein “a bill, after seventeen years, to set aside a purchase of the testator’s estate by his executor, at an undervalue, was dismissed on the ground of delay, although the court was clear that the sale, if recent, should be set aside.” And the-entire opinion may be studied with profit upon the question whether-the lapse of so long a period should not take from any appeal to equity, under such circumstances as here appear, much, if not all, of its original persuasiveness. See also-5 Pomeroy, Eq. Jurisp. Sec. 23, et seq. aud many authorities there cited.

Slight circumstances may well be seized upon in such eases to affect the plaintiffs with constructive notice and consequent laches or acquiescence, and the circumstances which manifestly challenged investigation of this sale at the time it took place, were, to our mind, by no means slight. The plaintiffs must be held to have acquiesced in this sale, which, though they had the means of knowing that it was irregular, they forbore to challenge, because they had no substantial motive at that time for endeavoring to overturn it.

The petition is dismissed.

Winch, J., concurs.

Marvin, J., dissents.


author: henry, j.

text:
    GUARDIAN AND WARD — TRUSTS AND TRUSTEES.
    [Cuyahoga (8th) Circuit Court,
    March 27, 1905.]
    Marvin, Winch and Henry, JJ.

      Henry J. Ostendorf v. Louisa M. Shale et al.
    Sale of Land to Guaedian in Tbust foe Waed.
    Where a guardian negotiates what is in form a sale of the goods of his ward, but himself assumes the payment of the purchase price, in con siderátion of a conveyance of land by the purchaser to such guardian personally, the latter will not be permitted to benefit by such transaction 'but will be held to have acquired such land in trust for the benefit of his ward.
    [Syllabus by the court.]
    Foran, McTighe & Gage, for plaintiff :
    Meyer & Mooney, for defendants.

       Affirmed, Shale v. Ostendorf, 75 Ohio St. 581; for another decision based on these facts, see Brickman v. Shale, ante, 372.

   henry, j.

This canse is here on appeal. It is essentially a .controversy among the children and certain grandchildren of Henry Beckman, Sr., over what remains unsold of ten acres of land on Bolton avenue, together with the proceeds of the part that has been’sold. The history of the •title to this land is in brief as follows: Henry Beckman, Jr., son of Henry Beckman, Sr. (both now deceased), purchased the land from ■certain executors, under circumstances which seem to indicate that the father furnished the purchase money, but being.unable lawfully.to take the title, by reason of his having been one of the appraisers, he caused the deed of conveyance to be made to his son. We shall give no further consideration to this phase of the controversy, since it furnishes no sufficient proof of the existence of any lawful trust. The family, however, seem to have urged upon Henry Beckman, Jr., that he had no right to the property, and finally, just after his marriage, he conveyed it to his mother for $10,000. His mother was at that time the guardian of her husband, who was mentally incompetent, and o.i the same day she as such guardian transferred to her son Henry r stock of goods, belonging to her husband, of the appraised value of $13,394.11. Of this amount, it seems clear that Henry, Jr., paid only the excess over $10,000. Before the mother was called upon to account in the probate court for the proceeds of the goods so sold, her husband died, and she, being the legatee of his personal property, alleged that fact and her consequent ownership of the fund, in lieu of any strict accounting.

At the time, however, of her sale of the goods and acquisition of the land, Henry Beckman, Jr., was prospectively entitled, by the terms of his father’s will (then unalterable in view of the latter’s condition of mind), to the sum of $10,000, payable out. of the stock of goods in question; so that the inference is plain that the transaction was in this.respect an anticipatory settlement of the father’s estate.

Mrs. Beckman, Sr., thenceforward treated the land as her own, giving it first to certain of her daughters, being five of her seven children, by •a deed, which, however, she never effectually delivered but retained in her own possession until her death. After making this deed she .allotted the land and conveyed large parts of it again to various innocent purchasers. She had power under her husband’s will to make such conveyances for the benefit of his estate, but she converted the proceeds to her own use, and finally, by her will, of which the same five daughters were made the executors, she excluded her deceased son Henry’s children and the children of her daughter, Mrs. Ostendorf, from any participation in said proceeds. The deed to the five daughters was put on record after her death, and they have ever since continued in the exclusive enjoyment of the premises.

It is now sought to have this deed set aside and to obtain an accounting of the proceeds of the lots sold, so that the other heirs may participate in all the property in question under the provisions of the will of Henry Beckman, Sr.

Plaintiff claims that the deed from Henry, Jr., to his mother was made in trust, and produces evidence of T. H. Graham, Esq., that Henry, Jr., so declared at the time the conveyance was made. The defendants, however, insist that Graham’s testimony is incredible because he himself drafted the deed from Mrs. Beckman, Sr., to her five daughters, which would have been in direct violation of the alleged trust, had it existed. They further urge that she herself assumed the burden of accounting for- $10,000 of the price of the stock of goods which she sold to her son, so that it cannot be held that she paid for the land with $10,000 of her husband’s property. It is enough to say in answer to this last contention that a guardian cannot be permitted thus to traffic or juggle with his ward’s estate. Nor can it benefit the defendants that the $10,000 worth of goods was already prospectively Henry, Jr.’s property, thus exonerating his mother from any breach of trust in turning it over to him; for that would be to say that Mrs. Beckman, Sr., obtained the land from her own son under the form of a purchase without in fact paying anything for it.

On the whole case we are satisfied that plaintiff’s contentions are well founded, and without further discussion of the evidence, except to say that at every point defendant’s counsel have most ingeniously presented the best possible side of a desperate case, we hold that the children of Mrs. Ostendorf and of Henry Beckman, Jr., are entitled to participate in the property in question, and a decree may be taken accordingly.