text:
    MALICIOUS PROSECUTION
    [Cuyahoga (8th) Circuit Court,
    May 20, 1901.]
    Caldwell, Hale and Marvin, JJ.
    Hopwood Provision Co. v. Fred L. Joslyn, et al.
    Malice not to be Inferred from Want of Probable Cause In Malicious Prosecution.
    In every action for malicious prosecution, malice is a necessary element to be proven as a fact and does not necessarily follow from the want of probable cause, though it may be inferred from it.

      Smith & Blake, for plaintiff in error.

      W. H, Polhamus and W. C. Rogers, for defendant in error.
   HALE, J.

Prior to October, 1898, the defendant in error, Joslyn, had for a period of years been employed by the plaintiff in error. That employment ceased about the date named. Some two months subsequent to that date, Joslyn was arrested for the crime of embezzlement. He was charged with collecting $3.75 belonging to the plaintiff, and unlawfully appropriating the same to his own use.

At the close of the hearing before the justice of the peace issuing the warrant, he was discharged. Thereupon he commenced action in the court of common pleas, alleging that the plaintiff in error had instituted that prosecution against him maliciously and without probable cause. Upon the issues made by the pleadings trial was had, resulting in a verdict for the plaintiff in the sum of $2,500, for which, after the overruling of the motion for a new trial, judgment was rendered for the de fendant in error-.

Several errors are assigned:

1. - That the court erred in the admission and exclusion of evidence.

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

3. That the damages awarded were excessive.

First. ¥e find nothing in the rulings of the court upon the admission and exclusion of evidence requiring a reversal of judgment.

Second. An action for malicious prosecution will lie only when there is a concurrence of the following circumstances: first, when a suit or proceeding has been instituted without any probable cause therefor; second, the motive in instituting it was malicious ; and third, the prosecution has terminated in the acquittal or discharge of the accused.

Upon the subject of probable cause, the charge is without fault, but the element of malice was substantially ignored. Until the instructions were given to the jury upon the subject of the assessment of damages, there was no attempt to define that term. However, the order in which the different propositions are stated to the jury is not very material if the law is correctly stated. Upon that subject the court, among other things, said to the jury:

“And if you should find in this case that there was no probable cause for the arrest of the plaintiff existing at the time, and if you find that the defendant corporation occasioned his arrest without probable cause, then you may assume that that corporation acted with what the law calls malice, and that does not necessarily mean what we ordinarily mean when we use the word malice, that is, an existence of hatred; but the law regards malice as being present in this kind of an action, where an arrest has been procured without reasonable cause. ’ ’

From this the jury must have understood that malice followed as a legal inference, from a want of probable cause. If such be the correct interpretation, it was erroneous. The existence or non-existence of malice is always a fact to be found by the jury from the evidence submitted to them. The jury may, under certain circumstances, find the existence of malice from the want of probable cause, but it does not follow as a legal inference. There may be existing a want of probable cause without malice.

The proposition quoted, as it must have been understood and applied by the jury, was erroneous.

Third. Upon a careful review of the testimony as it appears in this record, we are also of the opinion that the damages awarded by the jury were excessive, and for that reason the motion for a new trial should have been granted.

As the ease is to be remanded for a new trial, it is unnecessary to fix the exact amount of this excess.

For these two errors appearing upon the record, the judgment of the court of common pleas is reversed and the cause remanded for a new trial.

Caldwell and Marvin, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    SPECIFIC PERFORMANCE
    [Cuyahoga (8th) Circuit Court,
    June, 1901.]
    Caldwell, Hale and Marvin, JJ.

      Elizabeth Schroeder et al v. Christian Schultz et al.
    Circumstances Surrounding Parties to be Considered in Action for Specific Performance against Parents.
    In an action brought against a parent upon an alleged promise to convey certain real estate to a child in consideration of the child’s promise to live upon and improve the same, there being direct conflict in the evidence as to the making of the alleged promise, the facts and circumstances surrounding the parties, including the apparent scheme of the parent for parcelling his real estate among his various children, will be considered.
    Appeal.

      II. T. Go-win and Alex. Hadden, for plaintiffs.

      W. H. Po-lhamus and Jas. F. Wilson, for defendants.

       Affirmed no opinion, Schultz v. Schroecter, 68 Ohio St. 690.

   MARVIN, J.

The plaintiffs were married to each other on November 8, 1887.

The defendants are husband and wife, and are the parents of the plaintiff, Elizabeth Schroeder.

The plaintiffs, ever since May 11,1888, have lived in a house built on a tract of land consisting of twenty-five acres, situated in 'Warrensville township in this county, the title to which is in the defendants.

The plaintiffs seek for a decree that the defendants shall convey said tract of land to the plaintiff, Elizabeth Schroeder. The plaintiffs claim to be entitled to this conveyance because of a promise which they say the defendants made to them in 1887, shortly after their marriage; that such promise was made upon condition that the plaintiffs should construct a dwelling-house upon said premises and make the same their home; and that they have constructed such dwelling-house, and performed on their part, every condition to be performed to entitle them to the conveyance under the promises of the defendants. The defendants deny that such promise was ever made.

No question is made here but that if the plaintiffs were promised by the defendants a conveyance of the land upon condition that they make improvements and expended money thereon, and that they were put into possession of the premises under such promise, and have made improvements and expenditures upon which the promise was conditioned, the defendants would be estopped from refusing to make good their part of the promise. So that there remains only the determination of the questions of fact made in the case.

The defendants deny that any promise was ever made by them to convey the premises to the said' Elizabeth. They say that although a dwelling-house, a barn and other improvements have been made upon the premises by the plaintiffs, they were made under a contract, not in writing, by which the plaintiffs, whenever they should give up possession of the premises, should receive from the defendants the amount of money expended by them for such improvements. They say that in 1895 an agreement was made between the parties as to the amount thus expended; that the plaintiffs agreed to give up possession of the premises, but that they failed to do so; that the defendants notified the plaintiffs at that time that they were ready to pay the money which had been expended by the plaintiffs-in improvements upon the premises, and have ever since been, and are now, ready to pay such sum of money.

■ The evidence in the case consists chiefly in the testimony of witnesses, though certain.exhibits have been introduced.

There is great conflict in the testimony of the witnesses. Some of them are clearly mistaken in their testimony, or fail to remember certain things that took place, or think they remember some things which never did take place.

The defendants are the parents of five children, two sons and three daughters, all of whom are married.

At the time when the plaintiffs claim the promise was made to them, the defendants were the joint owners of other lands, one tract of forty-six acres, and the tract of which the twenty-five acres was a part — said tract containing in all, fifty-nine and three-fourths acres. In 1898 the defendants conveyed to their youngest son a parcel of twenty-six acres out of said tract of forty-six acres and conveyed the remaining twenty acres of said tract to their daughter Emma, reserving in each deed a life estate to themselves. At about the same time they conveyed to their oldest son, John, all of the fifty-nine and three-fourths acre tract, except the twenty-five acre parcel which is claimed by the plaintiffs in this action. In the deed to John no reservation of a life estate to the grantors is made. Since the marriage of their youngest daughter, she being the one to whom no real estate has been conveyed, the defendants have given to her some $800 in money, and the defendant, Christian Schultz, has endorsed the bank paper of the husband of their said daughter, to the amount of something like $2,000, no part of which has he ever been called on to pay, nor, so far as any evidence in this case shows, is he likely ever tó be called on to pay it.

The conflict in the testimony is such as to make it entirely irreconcilable.

It is a painful thing to suppose that any of the witnesses deliberately stated what was not true; but we are forced to determine as best we can, what are the probable facts in the case.

The testimony of each of the plaintiffs is positive that the promise was made to them as claimed in the petition. The testimony of both of the defendants is equally positive that no such promise was made. It is certain that under some arrangement between the parties, the plaintiffs entered into possession of the premises claimed, and expended upon them money; that they have remained in the occupation of the house ever since and, except to the extent that the defendants can claim that by reason of the fact that Christian Schultz manured about five acres of the land in the winter of 1894-95, the possession of the entire premises has been continuously in the plaintiffs from the month of May, 1888. This manuring of the five acres is easily accounted for by the fact that there was undoubtedly, as shown by the testimony of all, a disagreement between the plaintiffs and the defendants in the fall of 1894 or the winter following, and the plaintiffs contemplated leaving the premises.

At that time a statement was made up by the plaintiff, Frederick Schroeder, and handed to the defendant, Christian Schultz. By this statement it was made to appear that if the plaintiffs gave up the property, there should be paid to them as reimbursement for their expenditures upon the premises, the sum of $342.87.

This statement, however, is erroneous to the extent of at least $60, because if the defendants were to take the property, the amount, last named, for which Schroeder in his statement gave credit to Schultz, should not have been so credited, on the theory that Schultz was to pay back to Schroeder all that Schroeder had expended; the $60 item is for expenditures made by Schultz upon the house, as shown by the statement, and, if Schultz was to resume possession and be the owner, that $60 was expended by him for the benefit of his own property. The other items for which the said Schultz is given credit in the statement, are for personal chattels, and were properly credited.

Assuming that the statement rendered was correct in other respects, the balance really to be paid by Schultz to Schroeder would have been $402.87 instead of $342.87. This same statement showed that Schroeder owed to Schultz $350, and this would be correct, except as to the $60 item, if Schroeder remained upon the premises, but would have been but $290 if he left the premises;

The true balance, however, would have been as already stated, $402.87, which Schultz should have paid Schroeder if he gave up the premises. That this whole plan was abandoned is evident from the fact that the plaintiffs have remained in possession of the premises ever since.

From the feeling which has manifestly existed between the parties during all that time we are led to the conclusion that the defendants felt that the plaintiffs had rights in the premises which they could not take from them or they would not have permitted them to remain unmolested for the last six years.

Several witnesses testify that the defendant, Christian Schultz, has stated to them that he had given this property to Elizabeth, at the same time stating that he had given that property which he has since deeded to his son, John to him, and that which he has deeded to his daughter, Emma to her, and that which he has since deeded to his son, Herman to him.

One witness, Mrs. Bartlett, whose appearance is calculated to impress us that she is telling the truth, and who apparently has no interest in telling anything but the truth, says that Mrs. Schultz told her that Elizabeth was to have these twenty-five acres.

It is true that the several children of the defendants, other than Elizabeth, testify that nothing was said to them about these gifts, and that the first they knew that they were severally to receive the parcels of land which were deeded to them respectively, was when they received their deeds in 1898. Still the entire conduct of the parties goes to show that there must have been some understanding that they were to receive the parcels which have since been deeded to them.

Emma and her husband expended some $1,400 in building a house upon the premises, of which Emma now holds a deed, and which they have occupied for a good many years. John and Herman have each had possession and occupancy for a considerable number of years of the parcels to which they now hold title; and we think it clear that the general plan of these defendants Avas to divide up their real estate in the manner claimed by the plaintiffs, and that they must have made some promise to each of the children that such division would be made. That being so, they would naturally have made the promise to Elizabeth which she claims. If they did, the conduct of Elizabeth and her husband in expending money in the erection of buildings, putting out fruit trees, and other improvements, is naturally accounted for, and it is not easily accounted for on any other theory.

In 1897, some four years after the plaintiff, Frederick Schroeder, rendered the statement to his father-in-law, he gave a nóte to his father-in-law for $350, due October 15, 1897, which note is still outstanding. On the last-named date the defendants executed a mortgage to their son Herman for $500 which still rests upon the premises, and the debt incurred by such mortgage is still unpaid.

The evidence shows that Christian Schultz expended some money in the construction of .the house and other buildings erected upon this twenty-five acres; the exact amount we can not determine. At the time of these expenditures, the feeling between the parties was that which would naturally be expected between those sustaining the relation to each other which these plaintiffs and defendants do sustain, and, without doubt, work was done and money expended by Schultz of which no accurate account was kept.

We have reached the conclusion that the most equitable disposition of this case which we can make and conform to the facts as we understand them, is to require that the defendants shall convey to the plaintiff, Mrs. Elizabeth Schroeder, within ten days from the entering of the decree in this case, the twenty-five acres of land, subject to the mortgage of $500 held thereon by Herman Schultz thus putting the payment of this mortgage debt, interest and all, upon the plaintiffs and cancelling the note of $350 held -by Christian Schultz against the plaintiffs. And a decree will be entered accordingly.

Caldwell and Hale, JJ., concur.


author: CALDWELL, J.

text:
    NEW TRIAL
    [Cuyahoga (8th) Circuit Court,
    June 10, 1901.]
    Caldwell, Hale and Marvin, JJ.

      A. W. Moskowitz v. Silas Auerbach.
    Date for Filing Motion for New Trial.
    The time within which a motion for a new trial may be filed, dates from the rendition of the verdict and not from the overruling of a motion for judgment upon special findings of the jury.
    Error.

      Hile <& Horner, for plaintiff in error.

      Henderson & Quail, for defendant in error.

      Affirming, Moskowitz v. Auerbach, 11 Dec. 522 (8 N. P. 331.)

   CALDWELL, J.

Special findings were submitted to the jury at the request of counsel, and answers were returned to the special findings, and a general verdict. Thereupon counsel for plaintiff filed a motion for judgment on the special findings, notwithstanding the general verdict against him. The complaint made, is that the court erred in overuling that motion.

We fully concur in the judgment of the court.

The only other error complained of is that the court refused to permit the plaintiff to file a motion for a new trial. The plaintiff had a motion filed in time, which he thereafter withdrew, and after his motion for judgment on the pleadings was disposed of, he applied to the court to file his motion for a new trial. The time prescribed by statute for filing a motion for a new trial had then long passed and the court for that reason refused leave to file it. It is claimed this was error, and that the time for filing a motion for a new trial does not apply where a motion for judgment on special findings is interposed; that where that is done, the motion for a new trial should not be filed until that motion is disposed of. We do not think this point is well taken.

We find no error in the record, and the judgment is affirmed.

Hale and Marvin, JJ., concur.


author: HULL, J.

text:
    ACKNOWLEDGMENT — EVIDENCE
    [Cuyahoga (8th) Circuit Court,
    November 22, 1901.]
    Caldwell, Hale and Hull, JJ.
    Judge Hull of the Sixth Circuit Sitting in Place of Judge Marvin.
    Atlantic Refining Co. v. Carrie S. Wagner et al.
    1. Certificate of Acknowledgment Entitled to Great Weight.
    The certificate of an officer that he has taken the acknowledgment of a grantor is entitled to great weight; the burden.of proof cast upon those disputing the acknowledgment is not sustained by the evidence of the grantor and her husband that she did not acknowledge the instrument.
    2. Misdescription of Officer Taking Acknowledgment not Material.
    The fact that a certificate of acknowledgment describes the officer before whom an acknowledgment was taken as “a notary public” when as a matter of fact he was a justice of the peace and signed as such, does not invalidate the acknowledgment.
    Appeal.

      Carpenter & Young, for plaintiff.

      Chas. B. Lang, for defendants.
   HULL, J.

This ease involves the validity of a mortgage upon which the plaintiff brought its action in foreclosure.

Carrie S. Wagner makes the defense that she did not appear before the justice of the peace whose certificate of acknowledgment is attached to the mortgage, and claims that therefore the mortgage is invalid. The mortgage was for $4,000 and was admittedly signed by Carrie S. Wagner and her husband, and admittedly acknowledged by the husband before the justice of the peace, in due form.

The property that the mortgage covered, belonged to Mrs. Wagner, was her property.

The question in the case is, whether the evidence offered in support of the defendant’s claim is sufficient, under the rule in this state, to overcome the certificate of the justice of the peace and his testimony.

Another mortgagee is a party to the case, a Mrs. Bayer, whose mortgage in point of time is prior to the mortgage of the refining company, but was not left for record until after the mortgage given to the refining company; so that the mortgage of Mrs. Bayer is inferior to the mortgage of the refining company if the latter mortgage was properly executed and acknowledged.

The testimony in the case, stated very briefly, is about this: the defendant Mrs. Wagner and the other members of the family testified to her signature and that óf her husband being attached to the mortgage at their residence; the acknowledgement purports to be taken before justice of the peace Griswold, who had an office down town. Mrs. Wagner claims she never appeared before the justice of 'the peace. In this she is supported by the testimony of her husband and son; the husband testifying they went before the justice of the peace and he attached the certificate of acknowledgment without Mrs. Wagner being present, and Mrs. Wagner testifies she did not go before the justice of the peace.

The certificate of the justice is in due and proper form, and he testifies that a woman did appear with Mr. Wagner before him, that he believed to be Mrs. Wagner, that her signature had been signed before she appeared and that he took the acknowledgment in due form.

We hold that as the defendant was attacking the mortgage, the testimony as offered before us was not sufficient to bring it within the rule laid down by the Supreme Court in the case of Ford v. Osborne, 45 Ohio St. page 1 [12 N. E. 451; 4 Am. St. 507]. The Supreme Court substantially hold there that the testimony of the husband and wife alone would not be sufficient to overcome the certificate of the notary; that is practically the holding of that court, as there was no other testimony offered.

In this case, we have not only the certificate of the notary, but his testimony that a woman who appeared to be Mrs. Wagner came before him and made the acknowledgment.

The Supreme Court in the case to which I have referred, says there must be more than a preponderance of the evidence and that it must be clear and convincing.

The authorities everywhere are, that the certificate of the notary alone is entitled to great weight as evidence, it being the official act of the justice of the peace or notary; that the security of titles requires that such certificate shall not be lightly set aside.

If this were an ordinary question of fact, not controlled by such a rule as has been laid down by the Supreme Court, we might hold that the preponderance of the evidence was in favor of invalidating this mortgage, but we do not think the parties have come up to the rule laid down by the court.

Just a word in regard to the form of the certificate objected to; it reads: “Before me, a notary public,” etc., and is signed “E. R. Griswold, Justice of the Peace.”

We hold that this certificate in form is good; that the language “notary public” in the body of the certificate is merely descriptive and would not affect the validity. The certificate was prepared by the mortgagee and given to Mr. Griswold, and the words “notary public” were written in and, as they were not able to find a notary public at that time, he signed his name and title thereto.

The decree will be in favor of the plaintiff, and with this found, the parties agree on the priority of the liens.

Caldwell and Hale, JJ., concur.


author: HALE, J.

text:
    CORPORATIONS — PROCESS
    [Cuyahoga (8th) Circuit Court,
    January 20, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Akron Electric Manufacturing Co. v. H. H. Hammond.
    Service Outside County can not be Made upon Secretary of Ohio Corporation.
    Service of summons can not be made upon an Ohio corporation in a county, other than that in which its principal place of business is located, by serving the secretary of the corporation.
    Error.

      Harold Remington, for plaintiff in error.
    O. C. Pinney.

   HALE, J.

The plaintiff is an Ohio corporation having its principal place of business in the city of Akron. The defendant is a resident of Cleveland.

The defendant commenced an action in the common pleas of Cuyahoga county against the plaintiff and caused summons to be served upon the secretary of the plaintiff. Judgment was taken by default. After judgment, the plaintiff appearing for that purpose only, filed a motion to vacate the judgment and set aside the service of summons on the claim that the court acquired no jurisdiction of the action. This motion was overruled by the court; which action of the court is assigned as error.

The determination of the questions submitted depends upon the proper construction to be given to the statutes bearing upon the subject.

The service of a summons upon a corporation of the class to which the plaintiff belongs is regulated by Section 5041 R. S. (See. 11288 G. C.). Three modes are provided by that section for the service of summons upon a corporation, dependent upon the circumstances existing at the time of the service: (1) Upon the president, or president or chairman of the board of directors or trustees, or other chief officer. (2). If the service can not be made as first designated, then upon the cashier, treasurer, secretary, clerk, or managing agent of the corporation. (8). If service can not be made in either the first or second modes, then by leaving a copy at the usual place of business of the corporation.

Formerly actions against corporations of this class could be brought only in the county in which such corporation was situated or had its principal office or place of business, or in which such corporation had an office or agent.

April 16, 1900, the legislature amended this section by adding thereto the following:

“Or in any county in which a summons may be served upon the president, chairman or president of the board of directors, chairman or president of the board of trustees, or other chief officer. ’ ’

It plainly was not the intention of the legislature to extend the jurisdiction of the court outside of the county in which the corporation had its home, to cases in which any kind of service could be made upon the corporation, but only to those cases in which service could be made in the particular manner first provided in Sec. 5041 (11288).

Service in this case was not made in the manner thus provided.

The secretary, as is clearly indicated by the statute, is not “other chief officer of the corporation.” If Sec. 5023 (11272) is to be construed entirely independent of Sec. 5041 (11288), the construction claimed by the defendant could not then prevail. The meaning of the term, “other general officer,” is modified and limited by the particular designation of the officer upon whom service can be made, in the preceding clause. The general words are limited by the particular description preceding them and can only mean other general officers of the class specifically designated. This would exclude the secretary; nor would the result be different if the secretary did, in fact, perform the duties which the testimony, submitted on the hearing of the motion, tends to show he did perform.

The judgment of the court of common pleas in overruling said motion is reversed, and proceeding to render such judgment as should have been rendered by that court, the judgment of the court of common pleas is vacated, and the service of summons set aside and held for naught.

Caldwell and Marvin, JJ. concur.


text:
    JUDGMENTS — NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    November 22, 1902.]
    Caldwell, Hále and Hull, JJ.
    Judge Hull of Sixth Circuit Sitting in Place of Judge Marvin.
    Mary Kempinski v. August Dyczkowski.
    1. One of Two Innocent Parties that Must Suffer Loss.
    When one of two innocent parties must suffer loss, it is put upon the one who by his act or failure to act has enabled a third party to create the situation which must result in loss to one of them.
    2. Assignee of Judgment, Failing to Record Assignment until Judgment Creditor Proceeds to Collect Judgment, cannot Collect from Judgment Debtor.
    When the assignee of a judgment fails to give notice of such assignment, and does not record the assignment until the judgment creditor is in the process of collecting his judgment by having it set off against the Claim of the judgment debtor in a suit in another county, such assignee can not collect the judgment from the judgment debtor.

      Thomas Robinson, for plaintiff.

      Henry Du Lawrence, for defendant.
   CALDWELL, J.

This casé comes into this court on appeal. I will not undertake to state the facts at all in the case any further than to say this: That the husband of Mary Kempinski got a judgment against the defendant for $299 and after obtaining that judgment in this county he went to Portage county to collect it out of certain lands that the defendant owned in that county, and the defendant made a set-off of the claim he had against him amounting to about $1,200 so that the judgment was the difference between the two claims, making it equivalent to a collection of the judgment of the husband of the plaintiff. Now, afterwards, she brings this action on the same claim, claiming that the judgment her husband had obtained for $299, had been assigned to her before he undertook the collection of it and she put the assignment on record after the collection was in process, and she claims that notwithstanding he collected it and got it in full by way of cancelling the larger claim in part against him, she is now entitled to collect it again. The question doesn’t turn upon how far an assignment of a judgment' when placed upon the docket where the judgment appears, is notice to the parties. It is held in Henry v. Brothers, 48 Pa. St., 70, that it is not notice — it is not direct notice, nor is it constructive notice. Be that as it may, this case seems to present this plain proposition of law or equity that is often acted upon: where one of two parties must suffer by reason of the act of a third, if one is instrumental in bringing about or setting in operation that act of the third which makes one of the two innocent persons suffer, he is the one on whom the responsibility must fall.

The husband of Mary Kempinski had it in his power to collect this judgment, even after he assigned it to her, from the fact that she gave no notice to the defendant, and, in fact,.if the defendant had paid it to him while she held the assignment, without notice to him, she certainly could not have recovered. That is well settled law. But while he was in process .of collecting it, she put her assignment on the docket where the judgment appeared.

Even admitting that that is a sort of constructive notice, it was during the trial and certainly after a time when the defendant had prepared to meet the plaintiff’s claim, and we think that he was under no obligation to go continually during the trial of his case, to another county, in another court to search a record to see if an assignment had been made, had been put on after the action had commenced in which he appeared. This being true, the fault of the defendant, if any fault at all on his part, is very slight, while that of Mary Kempinski, the plaintiff, in not giving notice of her assignment, is one that under the facts of this case ought to defeat her; she is the one that by not giving any notice of the assignment to her, made it possible for her husband to undertake to do just what he did in this ease. That being true, if there are two innocent parties here, she is the one that ought to suffer. We hold that she can not recover in this case.

Hale and Hull, JJ., concur.


text:
    BUILDINGS — COVENANTS
    [Cuyahoga (8th) Circuit Court,
    June 21, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Windermere Realty Co. v. Paul G. Searles.
    When Substantial Compliance, Coupled with Neglect to Object to Breach of Building Covenant Held Defense.
    When it appears that the plaintiff has had full knowledge of the facts and made no protest while the defendant was incurring expense in constructing a porch on his house in such a manner as to be a slight violation of a covenant not to build any part of the house nearer than thirty feet to the street line, and it also appears that other lot owners in the same allotment have violated the same covenant to the same, or a greater degree than the defendant, a court of equity will not enjoin the completion and maintenance of the porch.

      M. B. Johnson, for plaintiff.

      Smith <& Taft, for defendant.
   CALDWELL, J.

This action was brought by the plaintiff to enjoin him from constructing his house nearer than thirty feet to the side of the street in front of the same. This is an allotment belonging to the plaintiff, in which it is selling lots, on which lot houses are being built, and, in its deeds to purchasers, it places a line thirty feet from the side of the street and requires every part of the building to be back of that line.

It appears from the evidence in this case that the defendant has allowed his porch to project over that line about two feet; the porch is twelve feet wide; when his attention was first called to the fact that he was over the line, his porch was about half completed.

The defendant shows that two other houses having the same restriction as to one, and the same restriction except as to the distance as to the other, have been built over the thirty foot line; that in the one case the porch extends over more than does the porch of the defendant, and in the other the party has brought his porch nearer the street some ten feet than the limitation prescribed in the deed, and it is said that that has been done with the consent of the plaintiff and that the plaintiff has made no objection to the porch on the other side of the street from the one that has encroached ten feet, and that, by reason of the fact that it allows the steps of the houses of nearly all that are built on the street, to be built entirely within the thirty feet, there is a waiver of the provisions of the contract contained in the deed and which is sought to be enforced in this action. That the other lot-owners on the street, aside from the plaintiff, are not seeking to take advantage of the mistake of the 'defendant in allowing his porch to project over the thirty foot line; but the plaintiff has other lots upon the street to sell and other houses to be erected, and this contract should be construed as any other contract.

If there has been a material violation of it and no waiver, it should be enforced. All that is required in the carrying out of contracts in this state is, that there shall be a substantial compliance with the terms of the contract. We would not like to say in this case that this is a substantial compliance with the contract, unless the plaintiff has itself so treated other non-compliances. If the plaintiff has treated other noneompliances as substantial compliance with the contract, we do not see why the courts should not so treat this.

Another rule applicable to the carrying out of all contracts is, that, if there has been anything near a substantial compliance, the court should not interfere if, by so doing, it will do much injury to the party violating the contract, and bestow no substantial benefit upon the party seeking to have it enforced.

Applying these rules to this case — there has been a violation of this contract, but, in two other instances, saying nothing of the steps of the houses, the plaintiff seems to have acquiesced in a greater violation of the same; it is said and admitted, that it has been done with the plaintiff’s consent. This throws light upon what the plaintiff regards as a substantial variation from the contract.

In the cases referred to above, it was not regarded as a substantial variation, while, in this ease, in less degree it is so regarded.

The evidence shows that the porch in question will be open, will not obstruct the view of other lot owners to any extent, and will be of no substantial injury to the plaintiff, but it will be of considerable injury to the defendant to enforce the covenant strictly, as it said that he can not cut down his porch two feet without greatly disfiguring and disproportioning the appearance of his building.

The greatest injury, perhaps, to the plaintiff would be that this might be a precedent for other persons projecting the porch over the line named in the deed. But, in this case the plaintiff made no complaint at all until the porch was about half completed and, if complaint has been made before the porch was built, undoubtedly the court would have been compelled to make the defendant keep back of the thirty foot line. And, in any case hereafter where the plaintiff did not stand by until the defendant had been to a large expense, seeming at least to give assent to what the defendant was doing, the court would feel at liberty to force the covenant in the deed.

One of the houses spoken of above has its foundation and roof of the porch projecting over the thirty foot line, but the posts supporting the roof of the porch are set back of that line, with which arrangement, so far as we learn in this case, the plaintiff seems content.

A porch projecting over a line for a few inches or a foot or two is not so serious an objection as though the main body of the house projected. It leaves the entire space substantially open to view and air and but very little disfigures the symmetry of the plan of building.

We hold in this case that the defendant shall place his posts back on the thirty foot line. The evidence shows that he can do this without materially injuring his porch and without expense; and, under all the facts and law as above referred to, we feel that this is as much as we should require the defendant to do, taking into consideration other violations of a. like covenant, taking also into consideration that his attention was not called to the fact that he was over the line until his porch was half completed, and taking into consideration the fact that requiring him now to cut down, would be expensive and materially injure the appearance of his house, and that the damage to the plaintiff is substantially nothing.

Instead of granting the injunction prayed for herein, we simply order that the defendant place his posts back of the thirty foot line.

Without any intent in any way to forestall the plaintiff as to any action which he may have -under a like covenant in any other deed, we make this decision entirely upon the peculiar facts of this one case, which are not intended to apply to any others with dissimilar facts.

Hale and Marvin, JJ., concur.


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    CHATTEL MORTGAGES
    [Cuyahoga (8th) Circuit Court,
    June 21, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Edward Hobday v. Lewis Sands.
    Mortgage Executed by Signing Correct Name Valid though Mortgagor is Known by Another Name.
    When the owner of personal property is known by different names, a chattel mortgage executed by her and signed by her With her correct name but with a slight variation in spelling, is, when recorded, notice to a subsequent mortgagee of the property, though the name signed is not the one by which she was commonly known.
    Error. •
   MARVIN, J.

Each of the parties of this action took a chattel mortgage upon the same property, both given by the same person who was the owner of the property. This mortgagor was a woman engaged in the keeping of a house of prostitution; she was known by different names. The mortgage to Sands was given prior to the giving of the. mortgage to Hobday. Hobday got possession of the property. Sands brought suit in replevin. Upon a jury trial in the court of common pleas, Sands recovered. Hobday pi'osecutes this proceeding for the purpose of reversing the judgment of the court of common pleas. He claims, first, that the evidence shows that the mortgage given to Sands, was to secure a loan made by Sands to the mortgagor for the purpose of enabling her to carry on her unlawful business. This question was properly left to the jury, the court saying in its charge on that subject as follows:

“The defendant claims that the plaintiff, Sands, intended to assist in the furthering or extending a house of prostitution, and the question is for you to determine: gentlemen, did he intend in making this loan to assist this woman in the illegal act of keeping a house of prostitution? If he did, then the law will not aid him in such a matter and he can not recover in this case. ’ ’

Upon the issue the jury found with Sands, and we hold that this was not so contrary to the evidence as to justify a reversal on that account.

The mortgagor signed the mortgage to Sands, with the name of “Inez Tozier.” The mortgage given to Hobday was signed “Inez M. Clyne.” It is not claimed that this last name was ever the true name of the mortgagor although it does appear that she was known for a time by that name. It does appear that her father’s name was “Toser,” and he testifies that the name of the mortgagor was Mary Toser. She herself testifies that her name was Mary Inez Tozier. This change of the spelling from Toser, as her father spelled it, to Tozier, as she gives it, is not very material — surely is not greater than many very respectable people change the spelling of the paternal name. We find some rather prominent people who spell the name of them selves Cooke, whose father spelled it Cook; Smythe, when the fathers spelled it Smith. A man, somewhat prominent in the literary world a few years ago, wrote his name Henri Browne, but admitted on the witness stand that in his boyhood days his name was spelled Henry Brown.

It is probable from the evidence that the name Inez was .taken by this woman after she left home. It is certain that the name Clyne was an assumed name. She was, however, very generally known by the name of Inez Clyne about the time when these mortgages were given. And, on the part of the plaintiff in error, it is urged that the mortgage to Sands being signed as it was, was no notice to those who should have dealings with the mortgagor, although the mortgage was properly filed and recorded.

Without doubt the purpose of the law in requiring these mortgages to be filed and indexed, is to give notice to the public of the existence of such mortgages, so that one making examination in the proper office may know whether property is mortgaged or not.

In the case of Jennings v. Wood, 20 Ohio, 261, it is held that, where the officer in recording a deed made by Lemuel Granger, mistook the name and wrote instead Samuel Granger, such record was not notice that Lemuel Granger had conveyed away any property.

In this last named case there was no claim that the grantor had ever been known as Samuel Granger. It is true that the names, “Samuel,” and “Lemuel,” when written, look somewhat alike, and, as written by many persons, might look very much alike. But the two names are wholly distinct, and one looking for a conveyance made by Lemuel would not be likely to examine the index under the letter S.

But, in the present case, it is clear that this mortgagor was very generally known by the name of Inez, and, when the mortgage was given to Sands, she inquired what name she should sign, and was told to sign her true name, whereupon she did sign the name Inez Tozier. In the case of Fallon v. Kehoe, 38 Cal., 44 [99 Am. Dec. 347], this language is used in the syllabus:

“If the true owner conveys property by any name, the conveyance as between the grantor and the grantee will transfer the title.
‘ ‘ The execution of a conveyance of land by the owner in his rightful name, though different from that in which he acquired it, when duly recorded, will operate as constructive notice of the sale and transfer of the title and will take precedence of a subsequently recorded deed to the same land and executed in the name by which it was acquired. ’ ’

See also the case of Alexander v. Graves, 25 Neb., 453 [41 N. W. 290; 13 Am. St. 501],

We think no violence was done to any decision of the Supreme Court of Ohio by holding on this matter as the court below held, and that the authorities to which attention is last called and the reasons therefor, justify an affirmance of the judgment; and the judgment is affirmed.

Caldwell and Hale, JJ., concur.


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    OFFICERS
    [Cuyahoga (8th) Circuit Court,
    December 24, 1901.]
    Caldwell, Hale and Marvin, JJ.
    State, ex rel Charles Lyle, v. C. W. Lapp, Dir. Police.
    Power Given to Head of Department to Remove Officer Includes Power to Reduce Rank.
    The power conferred by Sec. 1545-24 R. S. (Sec. 4379 G. C.), upon the head of a department of a municipal corporation to remove or suspend any officer or employe of that department, includes a' power to reduce in rank as it is the exercise of a power of the same inherent nature as the power granted.
    Mandamus.

      Lamson & Mathews, for plaintiff.

      Beaeom & Babcock, for defendant.
   MARVIN, J.

The relator was a sergeant on the police force of the city of Cleveland.

The defendant is now director of police of said city of Cleveland, which position he has held since April 5, 1901. For two years immediately preceding the incumbency of Director Lapp, the office which he now holds was held by one Michael Barrett.

On or about November 2, 1900, certain charges and speeifications were made, in writing, against said relator as such sergeant of police. These charges and specifications were filed with the director of police. Notice of the filing of such charges and specifications, and the time when the relator would be brought to trial thereon, was duly given the relator.

On or about November 20, 1900, a trial of the relator was had upon such charges and specifications before a tribunal composed, as provided by law, of the mayor of said city, the president of the city council and the director of law of the city.

The trial resulted in a finding, on January 28,1901, that the relator was guilty of the charges, and thereafter, on February 9, 1901,. said Michael Barrett, as such director of police, pronounced sentence against the relator, that he be, to quote the language of the petition herein, “removed from his said office of sergeant and reduced to the rank of patrolman in the department of police of said city.”

On May 24, 1901, the relator demanded of the defendant that he be reinstated in the position of sergeant. This demand not being complied with, he filed his petition in this action on June 19, 1901, praying for an order of the court commanding the defendant to restore him to his former position of sergeant.

On the part of the defendant it is urged that there was such laches on the part of the relator in commencing this proceeding as should bar him from the relief sought. Without going into a ■discussion of this .question, we hold that, under the circumstances in this case, the relator did not so sleep upon his rights as to deprive him of the right to a full hearing upon the merits of his case.

The time between the removal of the. relator from office or the reduction in rank, to the time of the beginning of the action, was four months and ten days. Within four months he had made the demand upon the defendant to be restored, and we hold that he forfeited nothing by the delay.

This brings us to the consideration of the question made by the plaintiff, as to whether the director exceeded the authority vested in him, when he made the order reducing the relator from the rank of sergeant to that of patrolman.

The trial of the relator was had under the provisions of Sec. 1545-24 R. S., which reads:

“The head of any department may, by written order giving his reasons therefor, remove or suspend any officer or employe of such department, provided the same shall not be done for political reasons, and such written orders shall be recorded in the records of the department and a copy thereof filed with the mayor, and provided that no member of the police, fire or sanitary police force shall be removed or reduced in rank, except for cause, to be assigned in writing after due notice, and a public hearing, if demanded by the accused, before a tribunal composed of the mayor, who shall be chairman -thereof, the director of law and the president of the city council, but the head of the police, fire or sanitary police force, as the case may be, may suspend the accused pending the hearing of the charge preferred against him. ’ ’

It will be noticed that the authority given the director by this section, is to “remove or suspend any officer,” etc.1

The argument on the part of the relator is that the director could do nothing but “remove” absolutely from the force, or suspend the officer, found guilty upon the trial, and that neither of these two things was done; and that, therefore, the order actually made was a nullity.

. On the other hand, attention is called to the language in a later part of the section, which reads: “Provided that no member of the police, fire or sanitary police force shall be removed or reduced in rank except for cause,” etc., and the claim is made that the legislature must have understood that authority had been granted the head of this department to “reduce in rank,” or those words would not have been used in this proviso. To this it is answered that Secs. 1980 and 1931 R. S., are in full force as to the city of Cleveland as well as in other parts of the state, and that provision is made in these sections for reduction in rank of members of the police force who belong to the detective branch of service, and that, therefore, this provision is made, that the section may apply to the entire force including the detective branch.

It should be borne in mind, however, that Secs. 1930 and 1931, are upon a subject entirely distinct from the general provisions in reference to the police force of this city, and this being so, are not in conflict with legislative enactment in Sec. 1545-24, which should include a reduction in rank as well as a dismissal of. such officer entirely from the police force.

It has been held in several of the states that authority given to remove an officer from his position necessarily carries with it the authority to suspend an officer. It is not claimed that this was a suspension, but that, because of certain authority given to remove from office, it necessarily carries with it the right to suspend. In State v. Lingo, 26 Mo., 496, proceeding was in the nature of quo warranto on relation of the circuit attorney charging the defendant with unlawfully exercising the office of superintendent. Bryson had been superintendent of the workhouse, and an order had been made suspending him from the performance of his duties. The court, discussing the statute under which the action was taken, says, on page 499: ‘ ‘ The power to remove neeessárily includes the minor power to suspend. ’ ’

In the case of Shannon v. Portsmouth, 54 N. H., 183, the charter of the city of Portsmouth empowered the mayor and alderman to remove constables and police officers. By a vote of the mayor and aldermen, the plaintiff, a constable and police officer, was suspended from the duties of his office on the police force, and from that time was not permitted to perform the duties of the office, although he was ready and offered to do so, ■until he was afterwards re-instated. It was held that he could not recover for services during the period of his suspension; and, on page' 184, in the opinion, the court says:

“It does not seem to require any argument to show that the power to remove must include the power to suspend.”

In the case, however, of State v. Jersey City, 25 N. J. Law, 536, one who was a member of the city council claimed relief because the council had by resolution instructed the clerk of the council not to call his name in calling the rolls — had instructed the president of the council not to appoint him upon any committee, and the court say. that that was, in effect, a suspension of this officer from the performance of his duties; that the action of the council in directing the clerk not to call the name of this member, and in directing the president of the council not to appoint him upon any committee, was, in effect, a suspension of such councilman from his office, and the court, in speaking of that, holds contrary to the holding in Missouri and New Hampshire, that the power to expel, if the council had power to expel, did not carry with it the power to suspend.

But this language is used in the opinion, on page 544:

“It only remains to be considered, whether the action of the common council in resolving that ‘the president of council be directed not to appoint Tyrrell on any committee, that the clerk do not call his name among the list of names in any action, vote, or proceeding of the council, and that he be not allowed to take part in any debate on any question which may come before the board of aldermen, is warranted by law. We think it entirely clear that it is not. This proceeding amounts to a suspension of the relator from the exercise of his official duties as a member of that body. It leaves his constituents unrepresented and without remedy. Expulsion creates a vacancy that can be supplied by a new election. Suspension from the duties of the office creates no vacancy; the seat is filled, but the occupant is silenced. The charter vests no such power in the council; it would be extraordinary if it did. The power is to expel, not to suspend.’
“In the case of Gregory v. Mayor, Aldermen and Commonalty of New York, 113 N. Y., 416, [21 N. E. 119; 3 L. R. A. 854], a similar holding to that in the New Jersey case to which attention has just been called, is made. Judge Peckham delivered the opinion and holds that the power to expel or remove from office, does not carry with it the power to suspend; holding as the court in New Jersey held, but he gives the reason, on page 419:
“Whether the power to remove includes the power to suspend, must, as it seems to us, depend, among other things, upon the question whether the suspension in the particular case would be an exercise of a power of the same inherent nature as that of removal, and only a minor exercise of such power, or whether it would work such different results that no inference of its existence should be indulged in, based only upon the grant of the specific power to remove. We think it is apparent that the two powers can not always be properly respectively described as the greater and the less, and, consequently, it can not always be determined, simply upon that ground, that the suspension is valid because there was a power to remove. The power to remove is the power to cause a vacancy in the position held by the person removed, which may be filled at once, and if the duties are such as to demand it, it should be thus filled. The power to suspend causes no vacancy and gives no occasion for the power to fill one. The result is that there may be an office, an officer and no vacancy, and yet none to discharge the duties of the office. ’ ’

Continuing in the same line of reasoning, the court held, as already said, that the power to remove does not carry with it the power to suspend, and the reason here given by Judge Peck-ham is, that it is not an exercise of the same power, that is, an exercise of a power of the same inherent nature as that of removal. The power to suspend causes no vacancy; the power to suspend, when exercised, leaves no vacancy in the office that can be filled and, therefore, leaves the duties of the office to be performed by no one. It is because it is not an exercise of power of the same inherent nature as that of removal, but minor in degree, that the power to remove does not carry with it the power to suspend.

Applying that reasoning to the ease before us; it would seem to result in holding that since the reduction in rank, the removal of one from the positioñ of a sergeant and, in the same order, constituting the person so holding the position of sergeant, a patrolman, is an exercise of a power of the same inherent nature as the power to remove, and only a minor exercise of such power; and, therefore, the reason why the power to remove in the opinion of Judge Peckham and the New Jersey court does not carry with it the right to suspend, does not exist in a case where it is a reduction in rank. But there is another reason why, in our judgment, the order made in this case was not a nullity.

The relator held his office from which the director of police, under the section already read, had power, after a trial, conviction, etc., and proper proceedings, “to remove” (in the express language). To remove from what, except from the office which the party held. He did remove him from that office. Another section provides that the head of the department may appoint to office, and he did appoint this man, in the same order, is true, a patrolman; and the only complaint he makes here, is that he was not absolutely removed from the force.

It must be remembered that this order is made for the protection of the officers. The purpose of the order is to protect the officers who have once got upon the police force or in the other departments of the city government. It is to protect them that this order was given.

Suppose the words were left out of this section, “reduced in rank,” and the section read, “Provided the same shall not be done for any political reasons, # * * no member of the police force or sanitary police force shall be removed from office except for cause to be assigned.” Supposing it read that way, omitting the words “reduced in rank”?

The provision is that one shall not be removed for political reasons, whether an officer of the police force, or of any political department. Suppose the words “reduced in rank” were omitted, and the director should, for political reasons, reduce one in rank without any trial, simply and purely in the exercise of arbitrary power, and purely for political reasons had issued an order, that one, who was a captain of police, should be reduced to the position of patrolman: is there any doubt that the captain could appeal and say “You have undertaken to remove me from office without a trial in violation of that statute?” It seems to be clear that protection would be given to the officer, under this statute.

The result is, we hold that the action of the director in issuing the order reducing the officer in rank, was in the exercise of the power conferred upon him, and the petition is dismissed at relator’s costs.

Caldwell and Hale, JJ., concur.


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    FRAUD
    [Cuyahoga (8th) Circuit Court,
    January 30, 1902.]
    Caldwell, Hale and Marvin, JJ.

      A. H. Atwater, Gdn. v. Charles P. Jones et al.
    Burden upon Fiduciary to Show Fairness of Transaction.
    If it appear that a fiduciary or confidential relationship exists between the parties to a transaction, or if it be established by evidence that one of the parties possessed a power or influence over the other, or that one was of very weak mind by reason of sickness or mental decline, the burden of proof lies upon the party filling the position of active confidence or possessing the power or influence, as the case may be, to establish, beyond all reasonable doubt, the perfect fairness and honesty of the transaction.
    Appeal.

      C. F. Morgan and C. W. Fuller, for plaintiff.

      Foran, MeTighe & Baker and Henry & Couse, for defendants.

      Affirmed no opinion, Jones v. Atwater, 70 Ohio St. 421.

   CALDWELL, J.

The action below was commenced by A. H. Atwater, as guardian of Winnifred Jones, an imbecile, against Charles P. Jones, a son of Winnifred Jones, and Ida M. Jones, the wife of Charles P. Jones, and the Euclid Avenue Savings & Banking Co.; it grew out of these facts:

Winnifred Jones owned two parcels of property; one on Broadway in the city of Cleveland, on which were two houses, in one of which she lived with her husband during his lifetime; the other one on Marcelline avenue in the same city. The husband of Winnifred Jones died in 1896, and, not long thereafter and in the same year, she went to make her home with her son, Charles P. Jones, who resided in the property owned by her on Marcelline avenue.

In 1896 proceedings were commenced in the probate court to have a guardian appointed over Winnifred Jones, claim being made that she had become an imbecile. About January 5, 1899, those proceedings were terminated by the appointment of Ida Jones, the wife of Charles P. Jones, as trustee to care for the property and person of Winnifred Jones. Before this action was taken the probate judge had determined, and so announced to the attorneys in the case, that he could not appoint a guardian for Mrs. Winnifred Jones, as he did not regard her so far demented by reason of her sickness and age, that he should interfere by appointing a guardian. About the time that this was announced to the attorneys, Winnifred Jones made a deed of all her property, which consisted of the two parcels of real estate above referred to, to Charles P. Jones, reserving in the deed, to herself a life estate, and the consideration of the deed was that Charles P. Jones should support her during her life.

In the early spring of 1899 proceedings were again commenced against Winnifred Jones to have her declared an imbecile, which proceedings terminated in the summer of that year by the appointment of A. II. Atwater as her guardian, and in said proceedings she was declared an imbecile by the probate court of this county. Not long after the guardian was appointed, Winnifred Jones, upon the request of the guardian, went to live with her daughter, Lillie M. Kunker, and, in 1901, died; and after her death this action was revived in the name of Mrs. Emma Bark-well and Lillie M. Kunker.

The action, as originally brought by the guardian of Mrs. Winnifred Jones and as it has been tried in this court, is to set aside the deed of conveyance by Winnifred Jones to her son, Charles P. Jones. After this deed was executed, $700 was borrowed on this property from the Euclid Avenue Savings & Banking Co. and secured by a mortgage on the property, the papers being executed by both the grantor and. the grantee in the conveyance spoken of.

The ground on which the deed is asked to be set aside is, that Winnifred Jones, at the time she executed the same, was incapacitated from doing business on account of great mental weakness, and that there was fraud practiced upon her by her son, Charles P. Jones, and his wife.

Sometime after the execution of the mortgage to the bank, Charles P. Jones transferred these two parcels of real estate to his wife.

Winnifred Jones had, in 1896, at the time of the death of her husband, after paying the funeral expenses, some $700 in the bank and had that amount of money when she went to live with Charles P. Jones and his wife, and, during all the time she' lived there, she received the rent from the two houses on the Broadway property, they residing in the other property. At the time of the transfer, or at least at the time of the mortgage from the bank, none of this personal property remained.

The evidence in this ease shows, to the entire satisfaction of our minds, that Mrs. Winnifred Jones at the time of the execution of this deed was incapitated from transacting any business, by reason of mental decline or great mental weakness, although not actually amounting, perhaps, to insanity or imbecility. The doctor who attended her in her last illness describes her disease as hardening of the arteries and testifies that it is one of that nature which is quite likely to-be attended with mental weakness and imbecility; that the disease must have been in progress for a number of years, and that the weakening of the body under this disease had been attended by a like weakening of the mind; this testimony of the doctor accords fully with the testimony of the other witnesses. There are but very few witnesses who make the mind of Mrs. Winnifred Jones normal for a person of her years up to the time of her death. Some noticed a marked change soon after the deed was made, while others had observed this weakening the mind, as well as of the body, from 1896. This testimony all harmonizes, with the exception of the few I have spoken of, to the end that she had a physical ailment that was constantly growing upon her (and which finally terminated in death), that brought upon her great physical weakness, and that attending this disease was a decline of the mind. The time when different witnesses noticed this decline varies, as I have just said, some placing it as early as 1896, and some later; and her daughter-in-law, Mrs. Charles P. Jones, claims, in her evidence, that she did not notice it until after the deeds were executed to her husband; but the evidence, as a whole, is conclusive that the weakening of the mind and the body had been going on together for a number of years, and is conclusive that her mind had become weak to such an extent that at the time of the deeds being made by her to her son, she was entirely incapacitated from the transaction of business of that character.

It is important, always, in a transaction of this kind, to determine what consideration passed between the grantor and the grantee. She transferred to her son this property, reserving to herself a life estate, and the only consideration for the deed was that he was to give her support during her life.

The evidence clearly shows in this ease that Charles P. Jones, from 1896 down to the time the deed was made to him, earned no money of any consideration whatever, and this was well known to his mother; nor did he, after the making of the deed, earn any money. Whether he is incapacitated from earning money or not, does not appear in the ease, nor is any good reason given why he did not during that time work and earn money. So when the mother made the deed to the son, she must have known that he was unable to support her if he continued according to his past life; and that he did not intend faithfully to carry out Ms part of the contract fully appears from the fact that after the deed was made, he did nothing towards earning a living either for himself or his mother; and that not long after it became necessary to borrow money, which, we have no doubt, was used for their mutual support, and the mortgage that was given on the property put in hazard her life estate.

At the time this contract was made it was evident to the son that his mother was very weak, both physically and mentally, and that her decline had been going on for some time and at that very time was seeming to gather force by reason of her disease and her years, and he knew that she could live but a very short period of time; at least, no one who knew her and her condition could form an honest expectation of life beyond a very few years.

The property he received is worth, by fair estimate, as shown by the testimony in the case, $6,000. So if there was not an entire failure of consideration in the transaction, there was at least a very inadequate consideration. We think it fair in this case to say that in the mind of the grantee at the time the deed was made, as shown by his conduct prior thereto and thereafter, there was no consideration whatever. The action of the parties after the deed was made, in every way shows that it was Ms intention to live upon this property by borrowing money or by exhausting the rents, to which he had no right in law.

It appears, then that tMs conveyance was made by a grantor who was incapacitated at the time, and was without consideration in fact. That being found, it follows that the conveyance must be set aside.

Considerable was said during the argument of the case, as to whether actual undue influence or fraud must be shown in this action, and upon whom was the burden of proof. While this question is not essential to the decision of this case, still we are •inclined to say something upon this question.

It has been said that fraud is never presumed, but must always be proved. It is not meant by that, that the fraud must be proved by direct evidence, for a party who commits a fraud always covers up his proceedings in a way that it is difficult, if not impossible, in nearly all cases, to prove the very act or the very intent of the party who has committed the fraud. Therefore, it is always proper to prove fraud by circumstances, and actual fraud is inferred in nearly all cases by the circumstances proved, and the burden of proving fraud is, in most cases, upon the party who avers it. Hence it is laid down in Wait, Fraudulent Conveyances, Sec. 271:

“In general the obligation of proving a fact rests upon the party who substantially asserts the affirmative of the issue. With the possible exception of conveyance to the wife by a husband, the burden of proof in cases where the instrument is valid upon its face, generally rests upon the creditor to show a fraudulent intent or absence of consideration. A creditor may succeed under the statute in New York simply by proving a fraudulent intent. If, however, the vendee, having the burden thus cast upon him, shows that valuable consideration was paid for the transfer of the property, then proof of the vendor’s fraudulent intent is sufficient; there must be evidence of a fraudulent intent on the part of the vendee, or that he had notice of the vendor’s design. Where a strong doubt of the integrity of the transaction is created, the duty of making a full explanation, and the burden of proof to sustain it, rests with the insolvent.”

This, we think, expresses the rule as to fraud generally. But it is claimed that this rule does not apply where the parties stand in a fiduciary relation, where there is confidence.

1. Bigelow, Fraud, page 261, says:

“When a party complaining of a particular transaction, such as a gift, sale, or contract, has shown to the court the existence of a fiduciary or a confidential relation between himself and the defendant, and that the defendant occupied the position of trust or confidence therein, the law raises a suspicion or, it is said, a preseumption of fraud; a suspicion or presumption, arising as a matter of law, that the transaction brought to the notice of the court was effected through fraud, or what comes to much the same thing, undue influence by the opposite party, by reason of his occupying a position affording him peculiar opportunities for taking advantage of the complaining party. Having special facilities for committing fraud upon the party whose interests have been entrusted to him, the law, looking to the frailty of human nature, requires the party in the superior situation to show that his action has been honest and honorable.”

Further on, it is said:

“For the protection of the former (weaker) person the law raises a suspicion or presumption that the transaction between the parties has been effected through undue and illegal means by the latter — that the party in the superior position has used that position to the injury of the party in the inferior situation; and this suspicion or presumption must be overcome if the transaction be impeached, before the superior party in the situation can retain the benefit received.”

There are many cases cited both in the briefs of counsel and in the text-books from which I have quoted, showing that this rule is adhered to strenuously by courts of equity, and it is upon the principle that, in order to bind a party, there must be a full and free consent. Consent is an act of reason accompanied with deliberation; and, in transactions in which one of the parties is not as free and voluntary an agent as the other, or does not apprehend the meaning and effect of what he is doing, it wants the very qualities which are essential to the validity of all transactions. There is no legal consent except that which is given with reflection and with knowledge, without restraint or surprise; and anything that takes away this reflection or judgment will nullify consent, and it is on this principle that courts of equity say that when a person who, from his state of mind, age, weakness or other peculiar circumstance, is incapable of free discretion is induced by another to do any act which may tend to the injury of himself or his representatives, that other shall not be allowed to derive any benefit from his improper conduct. And it is upon this principle that contracts of idiots, lunatics, and other persons non compos mentis, or persons in a fiduciary relation, where one has a great advantage of mind or position over another are deemed invalid in a court of equity; but the mere fact that a person is of unsound mind or is in confinement will not per se call upon a court to interfere, especially where the transaction was for his own benefit and if he knew what he was doing. Upon this same principle, if it appear that a fiduciary or confidential relation exists between the 'parties to a transaction, or if it be established by evidence that one of the parties possessed a power of influence over the other, or that one was of very weak mind by reason of sickness or mental decline, the burden of proof lies upon the party filling the position of active confidence or possessing the power or influence, as the case may be, to establish, beyond all reasonable donbt the perfect fairness and honesty of the transaction.

Then, when it was made to appear in this case that Mrs. Winnifred Jones was, at the time she made this deed, of old age, sick and in a mental decline and her mind had become very weak it would, from such facts, devolve upon the son to show by clear and convincing evidence that the transaction was fair and voluntary on her part and that no undue influence was used to bring about the conveyance. When there is added to this the fact that the contract was one in which he got by far the best of the bargain and which amounted to a conveyance to him for no consideration that he intended at the time to render, as shown by his subsequent conduct, the contract is void in the sense that it may be avoided by reason of such facts, and the burden of showing that it was fair and without any restraint is upon him.

In other words, great mental weakness, and an unfair consideration, where the parties stand in a fiduciary relation, will avoid the contract, and, under such circumstances, the law raises the presumption that the transaction was brought about by the undue influence of the vendee.

The defendants, Charles P. Jones and his wife, have failed to sustain themselves under this burden of proof. The whole transaction was brought about without any one being present who was specially interested on behalf of Mrs. Winnifred Jones and who was not also interested in behalf of the defendants.

Under the circumstances that existed in this case it has been held that in order to make a conveyance of this character good, it is necessary that the aged parent should have counsel and advice from one who is in no wise interested on behalf of the grantee. That was not done in this case. A great deal of formality was gone through with in obtaining the deed, and much was done that it is difficult for the court to understand why it was done, except on the ground that there was an apprehension on behalf of those who were obtaining the deed that possibly it might not be good because of the condition of the grantor’s mind; and the grantees absenting themselves from the room while all this formality was going on, can be explained in this case, in no other way, or at least it is not explained; and the only rational inference to be drawn from it is that they were under apprehension that her capacity might be questioned and it would be well that they should not be present while the deed was being made.

There is an entire failure on the part of the grantee and his wife to show that there was no fraud, no undue influence, and that they were in no way to blame for the obtaining of the deed.

It is claimed on behalf of the two daughters, who are the real plaintiffs in this case, that the $700 borrowed at the bank should be taken from the interest of Charles P. Jones in this property as heir; and that claim is made upon the ground that he used the money for his own benefit. The evidence is not clear as to who used this money. There is some evidence that, in our minds, tends to show that some portion of it was used to pay debts which Winnifred Jones owed — how and when those debts were contracted does not appear — and if this conveyance is set aside, it is not unfair to the defendants that they should be rewarded in some way for the care they gave to their mother while she lived with them.

On the other side, it is claimed that they really absorbed the seven hundred dollars she had left after paying the funeral expenses of her husband, and absorbed all the rents from the time of the death of her husband until the borrowing of the $700 and have absorbed the rents since that time until a receiver was appointed in this casebut just how that money was used by the defendants is not made clear by the testimony in the case.

We think it clearly appears that very much, or all of this money, was used by them and that they have been amply rewarded in the use of that money for any service they gave to their mother, both before and after making the deed.

It is our judgment in this case that the deed of this property in which Winnifred Jones conveyed to Charles P. Jones, be set aside as void, and that the wife of Charles P. Jones having given no consideration for the deed to her from her husband, that deed also be set aside. The plaintiffs are to pay one-half the costs of this action, and the defendants, Charles P-. Jones and his wife, are to pay one-half of the costs. The bank’s mortgage remains a lien on the entire property.

Hale and Marvin, JJ., concur.


text:
    CONSTITUTIONAL LAW — NUISANCE
    [Cuyahoga (8th) Circuit Court,
    June 21, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Emma B. Malone v. Mary M. Porter et al.
    Law Requiring Consent of Nearby Resident to Building of Boarding Stable, Valid.
    A statute providing that before one can secure a license to build or operate a livery or boarding stable in a residence neighborhood in certain cities he must secure the written consent of the property owners and lessees within a distance of 300 feet from the proposed building, is not a delegation of legislative power and does not discriminate in favor of a certain class, but is a valid exercise of the police power and is constitutional.
    Appeal.

      Noble, Pinney <& Willard, for plaintiff.

      Blandin, Bice & Ginn, for defendants.
   CALDWELL, J.

This case was appealed from the common pleas court, and involves the establishing of a boarding-stable and the right to build one on the lot of the defendant in the action. The action is brought by the plaintiff to enjoin the building of the same. It involves Sec. 2672 B. S. sub-divisions 104 and 105.

Sub-division 104 provides that keeping, maintaining, or conducting any livery, sale or boarding-stable without a license therefor, to be obtained as set forth in the statute, is prohihited in a city of the second grade of the first class.

Sub-division 105 provides as to the building and construction and keeping of the same under the rules and ordinances of the city in reference to the business, and this provision is found therein; “provided, however, that if such applicant desires to carry on such business in a part of such city which is wholly or principally devoted to residences and buildings of the dwelling-house class occupied as homes, and in a building or buildings situated upon premises not at the time of such application used in such business, it shall be unlawful to grant such certificate unless such applicant shall secure the written consent thereto of any and all owners and lessees of residence or dwelling-houses within a distance of 300 feet from the premises upon which said business is to be carried on, and shall satisfy the board that such written consent has been secured. ’ ’

The defendants seek to establish a boarding-stable on East Prospect street in the city of Cleveland, which street is principally and almost entirely devoted to residences and buildings of the dwelling-house class and occupied as homes, and is one of the principal residence streets of the city of Cleveland; the houses being of an expensive and ornamental character, and the street being kept up in a very cleanly and neat manner by its residents.

The business is one that the defendants seek to establish and they had commenced the building of the barn intended for the purpose of a boarding-stable, when this action was brought to enjoin the building of the same and of carrying on the business therein of a boarding-stable. The defendants did not secure the written consent of the owners and lessees of residences or dwelling-houses within a distance of 300 feet from the premises upon which said business was to be carried on, nor did they-obtain a license from the city for the purpose of this building or business.

It is admitted in this case that if these sections of the law are constitutional, the defendants, not having complied with the same, have no right to establish their business on the street, but if the act is unconstitutional, then they claim that they have the right to establish the same without obtaining consents and without the license provided for in the law.

This raises the question of the constitutionality of the law, and it is claimed that the law is unconstitutional:

1. Because it is a local law.

2. Because the provision of obtaining consents within the prescribed distance from the barn sought to be established is an unwarranted provision of the law and unconstitutional because it delegates to the citizens residing within the prescribed distance the right to determine what the law shall be.

3. Because the provision is unreasonable and discriminates between persons desiring to establish a business on the street and those having a business already there.

First. As to the law being unconstitutional because it is a local law on a general subject. The law is one applicable in cities of the second grade of the first class and, as such, applied at the time of its passage to but one city in the state, but which might, at any time thereafter, apply to more than one, or to many. This class of legislation has frequently been upheld by the Supreme Court and, as we understand the decisions, that court has never held a law of this character to be a local law— that it applies to all of. a class, which class may include more than one city. This legislation we understand is constitutional. The Supreme Court adheres to its ruling that cities may be classified and, as long as the classification is extended to more than one, with a possibility of many that shall belong to that class, that classification is warranted by the constitution. There are many decisions upon this question in the Supreme Court reports, which were reviewed carefully upon the hearing of this case and which we have examined, and we believe they warrant us in holding that this law is a general law.

Second. Is the law unconstitutional for the reason that it delegates legislative powers to the citizens whose consent is to be obtained? In our judgment there is no legislative power delegated. The power delegated pertains entirely to the execution of the law; to the carrying out of its provisions; and, when the stable is established under the law, it is done by virtue of the law and not by reason of the consents of the lot owners.

This question has been the subject of much litigation in the courts and it would be impossible to undertake to give all the authorities bearing upon this question, but we believe this general rule to be established: that if the power is delegated to say what the law shall be, it is unconstitutional; but if the power delegated pertains only to the execution of the law, to the mode and manner of carrying it out, then it is constitutional.

The matter of determining when a law shall go into effect in a certain community, or as to a certain property, has been many times before the courts. Bickerstaff, In re 70 Cal., 35 [11 Pac. 393]; House v. State, 41 Miss., 737; Rohrbacher v. Jackson (Mayor etc.), 51 Miss., 735; Groesch v. State, 42 Ind., 547; State v. Brown, 19 Fla., 563; Jones v. Hilliard, 69 Ala., 300.

Some of these cases pertain to the regulation of the sale of intoxicating liquors; they prescribe that before a person shall engage in that business he shall have the consent, in some cases, of the adjoining property owners, if the community is given to residence purposes; in other cases, of the persons who live in the ward or township in which the business is sought to be established, and, in other cases, of a certain number of those who live in the vicinity, describing the territory covered. The same rule applies as was applied in State v. Brown, supra; Jones v. Hilliard, supra; Veneman v. Jones, 118 Ind., 41 [20 N. E. 644].

In this latter ease the law provided that the depot-master was to say where hacks should stand around the depot. It was held constitutional. A case of the same nature is found in Sutton v. Wood, 27 Minn., 363 [7 N. W. 365]. The same ruling has been applied to auctions, Decorah v. Dunstan, 38 Ia. 96, and to camp-meetings, Meyers v. Baker, 120 Ill., 567 [12 N. E. 79].

In St. Louis v. Russell, 116 Mo., 248 [22 S. W. 470], it was sought to make the same ruling apply to a livery stable, and the court held the law to be unreasonable, and that it gave a right to exclude the livery stable from every part of the city and hence from the city entirely. While the. court recognized the right to regulate stables, yet a law that would exclude them entirely from the city upon the will of the people would be unreasonable, in that such stables were necessary for persons residing in the city and for persons residing out of the city and coming in.

The matter was before the Supreme Court of Illinois in Chicago v. Stratton, 162 Ill., 494 [44 N. E. 853]. That law was much like the one under consideration in this case and the mere fact that it arose under an ordinance instead of under a statute, would make no difference. The municipality gets its authority to legislate from the legislature, and any law made by the legislature that is unconstitutional, would be unconstitutional if made by a municipal corporation. This law was upheld as not delegating legislative power and as not being unreasonable.

In commenting upon St. Louis v. Russell, supra, the court draws a clear distinction between the two ordinances, in that the Missouri ordinance, or the St. Louis ordinance, was such as to exclude stables from the city entirely, at the will of the people, while, in the Chicago ease, it was only to exclude them from certain neighborhoods given over to residences. This feature of the law is not unconstitutional, nor is it unreasonable. It seems to us that it would occur to any one that the excluding of livery and boarding-stables from a neighborhood given over to fine residences is not an unreasonable thing to do. But this law does not seek to exclude them entirely from such neighborhoods. It gives the party a right to establish his business on any street in the city, but, before he can do so, he must have the consents of certain of the property owners around his property, and that provision is certainly not unreasonable.

It is claimed, in the next place, that the law is unconstitutional because it extends to one class of citizens rights which it excludes others from enjoying unless the consents named in the statute can be obtained.

The law is a police regulation, intended to save the people from the vicinity of such a stable the annoyance that invariably arises therefrom, and, as such a regulation, it is much like the regulation in regard to fire limits, which is also a police regulation, pertaining to fires; while the law under consideration is a police regulation pertaining to health and comfort — both of the same nature.

There are many cases to be found in the books, where limits have been established within a city, where no frame building can be erected, without undertaking to disturb the frame buildings within the territory prescribed already erected and made of wood.

Such laws have been held constitutional, and the principle underlying them is, that while the city may prescribe regulations of this nature in regard to health, fire and crime, and other matters of like nature, it may not, in prescribing such regulations, destroy property already existing, unless such property has become a nuisance and can be declared to be such. The party already in business and the one who seeks to go into and establish a business in prohibited territory are persons of a different class; they stand upon different rights and upon different facts, and the distinction is one clearly recognizable by law.

The same principle has been applied to camp-meetings. Meyers v. Baker, supra, and many other cases, that might be cited. Camp-meetings are permitted, by law, to exclude all persons from establishing business during camp-meeting on property not only owned by the camp-meeting, but on property owned by persons who seek to establish the business, and yet excepting from the law those persons who have a regularly established business within the prescribed territory; and the business, within the facts and the difference in the situation of the parties, is so different a thing, sufficient in magnitude to place them in different classes.

Many other examples of the rule under consideration might be cited, 'but we see no profit in doing so.

It is our conclusion that the law is constitutional, and that the defendants, not having complied with the same, are not entitled to erect their boarding-stable, nor to use their property for such purposes, because they have not complied with the law.

The injunction sought in this ease is made perpetual.

Hale and Marvin, JJ., concur.


text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    March 10, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Army & Navy Hall Co. v. F. A. Beckwith et al.
    Tenant May Lose Right to Avoid Forfeiture by Laches.
    When a tenant has acquiesced in a forfeiture of his lease for a period of three months, during which time portions of the premises h'ave been leased to other lessees and by them subleased, it is then too late to ask the aid of a court to avoid the forfeiture.

      Meyer & Mooney, for plaintiff.

      Goulder & Holding, White, Johnson & MeC'aslin and Brady & Cashman, for defendants.
   HALE, J.

Under the issues in this case we are called upon to say whether the forfeiture or attempted forfeiture of a lease shall be set aside and the lessee restored to its rights under the lease.

The lease bears date of April 1,1892, and was by C. S. Brit-ton and others to the Army & Navy Hall Co. for a period of twenty-five years at a rental specified in the lease.

The lease contained this clause:

“And it is mutually agreed by tbe parties aforesaid, for themselves, their heirs, executors and administrators, successors, and assigns respectively, that if at any time the rent, taxes or assessments aforesaid, or either of them, or any part thereof, shall be in arrear and unpaid for the period of thirty (30) days after becoming due, or if any of the covenants and agreements shall not be performed as herein stipulated to be performed by the second party, the first party, their heirs, assigns, executors or administrators, at any time after such delinquency shall have occurred shall have full right without demand of payment or notice, to enter upon the above described premises, and take possession thereof, and bring suit for and collect all rents, taxes and assessments which shall have accrued up to the time of such entry, and from thenceforth this lease shall become void to all intents and purposes whatever, at the election of the first party, and all improvements made on said premises shall be forfeited.”

The taxes falling due on June 20, 1899, and the rent becoming due July, 1899, were unpaid, and on July 28, 1899, prior to the expiration of the thirty days in which the lessors might enter upon the premises, this notice was served upon the lessees:

“You are hereby notified that unless you pay to us on or before August 8, 1899, the amount of rent due or which shall become due before that date, together with all taxes and assessments upon the building occupied by you under the lease of April 1, 1892, we will upon that day take possession of said building under the terms of said lease.”

On August ’28, 1899, the lessees having taken no notice of the notification already referred to, this notice was served upon them:

“You having failed to pay the rental for the months of June and July, 1899, and the last half of 1898 taxes in accordance with the terms of our lease to you, dated April, 1892, recorded May 20, 1892, Vol. 16, p. 20, Cuyahoga county records, and said defaults having continued for more than thirty days, you are hereby notified that on account of said breaches, we, under and by virtue of the authority given by said lease, elect to and do hereby declare said lease forfeited and by virtue of the same authority, we take possession of said premises and all improvements thereon.”

This notice was served upon Mr. Hessler, who was then president of the Army & Navy Hall Co.

It was contended on the part of the lessees, that Mr. Hessler offered to pay the rent by check. -That is denied by Mr. Britton, who served the notice. Looking at the testimony of the two, we áre satisfied that something was said about a check by Hessler to Britton, but there was no offer to give to Britton his cheek; in terms no tender made, and the parties separated under such conditions as, we think, the tender of the check should have no particular significance in the determination of this action.

On August 28, Britton took possession of the leased premises and has ever since been in possession thereof.

Some twenty days or more after the attempted forfeiture of this lease by Britton, the directors of the Army & Navy Hall Co. held a meeting in which the subject-matter of the forfeiture of this lease came up for consideration. The chairman stated that all efforts to sublet or sublease the hall under the company’s lease were futile and that the owner had taken possession of the property by reason of the failure of the company to pay the rent of the months of July and August and the half-year’s tax due in June. It was moved by Conrad and seconded by Barnes that G. D. B'arnes be authorized to sell the chairs in the lower hall and such other property as he can sell for the benefit of the Union Loan & Building Co., which held a mortgage thereon. The formal statement was prepared by the secretary and by vote of the directors sent to the post.

The Army & Navy Hall Co. was a corporation. The Army & Navy Post was a different organization.

The Army & Navy Hall Co. held the lease and it had sublet to the Army & Navy Post certain privileges under that lease, and this is the statement that was authorized to be sent to the Army & Navy Post:

“It is with regret that the directors of the Army & Navy Hall Co. notify you that the lease of the Army & Navy Hall Co. has become forfeited to the owners of the property and they have taken possession thereof owing to the unfortunate fact. It was found to be impossible to dispose of it or sub-let it without the owners’ consent, which could not be procured. The owners consent that the post can retain possession of the upper floor until January 1 and thereafter, if desired, upon such terms as may be made between the post and Mr. C. F. Britton, who was one of the owners and the managing owner. ’ ’

Now it will not be disputed that, if after this attempted forfeiture of the lease by the lessors, the Army & Navy Hall Co. had given express consent to the forfeiture and turned over voluntarily the possession of these premises to the lessors, the court would not interpose to set aside the forfeiture thus consented to.

On September 14, 1899, twenty days after this forfeiture, the owners of the building leased a portion of the premises to one Wood for a term of five years from October 1, 1899, to September 30, 1904, at a stipulated rental. This lease on October 4, 1899, was assigned to the Calumet Co. by Wood and that company immediately took possession of that portion of the premises assigned to it, and expended in alterations some $5,000 in fitting up the premises for the business it proposed to prosecute thereon.

On December 14, 1899, the owners of the building, Britton and others, leased to the Retail Grocers’ Assn, a portion of the premises that was covered by this lease, for a period of one year, and, on January 5,1900, the Army & Navy Hall Co., the original lessees, took a lease for a portion of the premises from the Retail Grocers’ Assn.

The Army & Navy Hall Co. took no steps to prevent any of these contracts on the part of the owners of the building or in any way to interfere with the lessors or the owners of that property until some time in December. Then the matter was agitated in meetings of the Army & Navy Hall Co., and, on January 2, 1900, that company undertook to make an account of the rents received by the owners of the building after the attempted forfeiture of the lease and made a tender of the remainder claimed to be due the lessors.

On January 5, more than three months after the attempted forfeiture, this action was commenced. At that time the owners of the building had made new leases to other lessees; these lessees had sublet portions of the property rented to them — all this had been done without the slightest attempt to interfere on the part of the Army & Navy Hall Co.

These transactions, in legal effect at least, are equivalent to an express consent on the part of the Army & Navy Hall Co. to the forfeiture of that lease. While courts are supposed to be adversé to forfeitures and will seize upon the slightest circumstance to avoid forfeiture, we know of no case in which courts have set aside a forfeiture in favor of a party who has expressly consented to the same.

We feel compelled to dismiss this petition.

The decree of the court will be for the defendants.

Caldwell and Marvin, JJ., concur.