author: BUCHWALTER, J.

text:
    TRUSTS AND TRUSTEES
    [Hamilton (1st) Court of Appeals,
    1922.]
    Hamilton, Cushing and Buchwalter, JJ.

      Harry G. Lamkin, Exr. v. John F. Robinson, et al.
    1. Issues Involved in Previous Litigation are Res Adjudicata and not Litigable in Subsequent Proceedings.
    Where fraud, undue influence, lack of knowledge and lack of consideration were issues joined in a court of competent jurisdiction, the decree entered therein was necessarily based upon consideration and determination of those issues, and they are thereafter res adjudicata and cannot be again litigated.
    2. Conveyance of Rights not Rendered Testamentary by Postponement of Execution until Death of Grantor.
    Rights granted by the execution of an instrument are not rendered testamentary by the fact that possession and enjoyment of some of the rights so conveyed are postponed until after the death of the party granting them.

      3. Agreement between Father and Daughter Relating to Ownership of Securities Creating Trust Precluding Testamentary Administration.
    The court finds that the agreement under consideration was a validly executed trust, complete, definite and precise in its terms, and embodying conditions which can be fully carried out, and that the subject matter concerns property which is subject to contract, all of which precludes and renders untenable the theory that the trust was testamentary.
    Error.

       Affirming Robinson v. Lamkin, 23 N. P. N. S. 425.

   BUCHWALTER, J.

These preceeclings in error were brought to reverse a judgment entered in the superior court of Cincinnati in an action wherein John Robinson was plaintiff and Harry G. Lamkin, both as executor of Pearl R. Lamkin and individually, and certain corporations were defendants.

The corporations named as defendants are not interested in the cause, except for the purpose of transferring the shares of stock in controversy as the court may order.

John F. Robinson will hereinafter be designated as plaintiff and Harry G. Lamkin as defendant.

While the action was pending plaintiff died and the cause was revived in the name of his executor.

Defendant was the husband of Pearl R. Lamkin, who was a daughter of plaintiff, and so far as the said shares of stock are concerned was the sole beneficiary under her will.

The shares of stock in the defendant companies, which are the subject matter of this litigation, stand on the books of said companies in the name of Pearl R. Lamkin.

Plaintiff claims the ownership of said stock by reason of a written agreement executed by Pearl R. Lamkin on March 3, 1905.

This agreement was executed in five copies, in the presence of witnesses, one copy being filed with each of the various defendant companies.

The action was for specific performance of said written agreement, and to compel the defendant companies to accept the surrender of the certificates issued in the name of Pearl R. Lam-kin, and to issue new certificates to said plaintiff.

The defendant by answer avers that the contract was executory and without consideration, was the result of undue influence exerted by the father, while said Pearl R. Lamkin was a member of his household, and without any independent advice.

That the gift, to take effect after her death, was testamentary in character; hence, void as not being executed in accordance with the laws governing wills, and, by the way of cross-petition, asks that specific performance be denied, that he be declared the owner of said certificates, subject, however, to the plaintiff’s right to the dividends thereon during his life.

The ownership of the said shares of stock and the dividends thereon, - accruing since the death of Pearl R. Lamkin, depend upon the validity of Sec. 4 of the instrument, executed March 3, 1905.

If that section is valid, said shares became the property of plaintiff at the time of the death of Pearl R. Lamkin; if invalid, they passed under her will to the defendant, subject, however, to plaintiff’s right to the dividends during his life.

The instrument is as follows:

“Whereas, I am the owner of'certain stocks, to-wit, five hundred and eight (508) shares of the capital stock of The United States Playing Card Company, evidenced by Certificate No. —; “Now eight hundred and three and three-fourths (803%) shares of the capital stock of the United States Printing Company, evidenced by Certificate No.-: and fifty (50) shares of the W. B. Oglesby Paper Company evidenced by Certificate No.-; now, this agreement is to show:
“That for and in consideration of one dollar and other good and valuable consideration to me paid, the receipt where of is hereby acknowledged;
“1. The said John F. Robinson is to have and retain possession of said shares of stock for and during the term of his natural life and collect the dividends thereon and apply them to his own use and he shall never be called upon to account for them to me or my executors or administrators.
“2. He is to vote the said stock at any and all elections of the said companies, respectively; and for this purpose I hereby authorize him, the said John F. Robinson as my true and lawful attorney, with power of substitution and revocation for me and in my name to vote at any and all meeting ohineetings of stockholders of said companies with all the pr%ers I should have if personally present.
“3. That with my consent and approval, when in his judgment it is advisable to do so, to sell the said stock and reinvest the proceeds of sale.
“4. In the event of my dying before he does, leaving no issue of my body, then the said trust shall lapse and the said stock is to revert to him; and to carry out this condition I hereby authorize and empower the said United States Playing Card Company and The United States Printing Company, and The U. B. Oglesby Paper Company, and the respective officers of each to transfer the said shares of stock so transferred to me to the said John F. Robinson at his request.
“5. Should I die before my father, leaving issue, his rights hereunder shall continue and at his death the said stock is to become the property of my children or their descendants.
‘16. Should my father die before I do then the said stock is to come into my possession again and become fully my property.
“7. This agreement is to be in effect during the life of my said father — subject, of course, to our right to change the terms at any time we may agree to do so.
“In Testimony Whereof, I have hereunto set my hand in quintriplicate — one copy for myself, one for John F. Robinson, ■and one for each of the said companies, this third day of March, A. D., 1905.
Pearl R. Lamkin.
“Witnesses:
“R. C. Belt,
“John F. Robinson."

The original investment was made by plaintiff who became one of the partners of Russell & Morgan. Later, to wit, in December, 1883, the partners formed a corporation known as the Russell & Morgan Company. At the time of the incorporation, the plaintiff received ninety-nine shares of stock of the par value of $1,000 each in the new company. In 1884 the plaintiff transferred ninety-five (95) shares of this stock to his wife Caroline F. Robinson, in order to protect his family in the event of misfortune, with the understanding that she would make a will returning it to him, in case he survived her.

During the years that she held this stock, the plaintiff received and used the dividends in the same manner as he had prior to tnc,itransfer.

Caroline ±7» .Robinson died suddenly in 1899, without mak•ing a will, leaving her husband, the plaintiff, and four minor children surviving her.

Plaintiff’s brother was appointed administrator of the estate and plaintiff was appointed guardian of his four children. The shares were inventoried and appraised as the property of Caroline F. Eobinson. Plaintiff did not claim his- one-third interest but received the dividends, used them and all of the ■ children gave receipts in full to him therefor when they became pf age. The certificates of stock were transferred to their names at this time, although plaintiff retained the certificates.

The daughters, Caroline and Pearl were then each the holders of 23% shares of stock in the Eussell & Morgan Printing Company. In 1894, the United States Printing Company bought out the Eussell & Morgan Printing Company and Pearl Eobinson received 853% shares of stock in the new company. Later, a part of the business of the United States Printing Company was acquired by the United States Playing Card Company, and 508 shares of the stock of the last named company were issued to her. By subsequent exchange of 50 shares of the stock of the United States Printing Company, she received 50 shares of stock in the W. B. Oglesby Paper Company.

In 1915, the United States Printing Company formed a consolidation with other companies, and in lieu of the 803% shares remaining in the United States Printing Company, there was issued to Pearl E. Lamkin, under the name of Pearl Eobinson 522 — 43-100 shares of first preferred stock and 281 — 31-100 shares of the second preferred stock of the United States Printing & Lithographing Company. The petition alleges 381 31-100 shares of second preferred, and the briefs and decree below also state that number, but from the evidence that is apparently an error.

Plaintiff continued to take and use the dividends until Caroline, one of the daughters, desired in 1901 to marry one Horace Stevens, contrary to plaintiff’s wish, and she transferred to plaintiff her shares of said stock. In 1903 plaintiff transferred these shares to her name, at the time when she signed an agreement similar to the one signed by her sister, Pearl, March 3, 1905, except that it did not include the Oglesby stock.

• On March 1, 1905, Pearl married the defendant, without her father’s knowledge or consent, and returned home the same day, and her husband returned to Columbus, where he was employed.

On March 3, 1905, Pearl signed a receipt, acknowledging settlement in full of all accounts between her father and herself and mentioning particularly moneys collected by him as dividends on the said stocks and also signed the instrument hereinbefore set forth; at the same time she executed a will embodying the same provisions.

In 1908 the plaintiff married a second time, and Pearl, after notifying the various companies that she claimed the dividends, brought suit against the plaintiff to set aside the agreement of March 3, 1905.

Her sister filed a similar suit and the cases were heard together in the common pleas, circuit and Supreme Courts.

In 1918, Pearl Lamkin died, leaving no children surviving her.

This action was then brought by plaintiff to enforce the agreement above set forth and secure the unconditional ownership of the shares of stock in question.

The only question involved is the validity of section 4.

One of the errors complained of is that the trial court did not consider any evidence introduced tending to show undue influence, fraud or lack of consideration, on the theory that these matters had been passed upon in Lamkin v. Robinson, no op., 88 Ohio St. 603, and were, therefore, res adjudieata as to the entire instrument.

After the decision was announced, and before the finding of law and fact, requested by defendant, had been formulated by the court, defendant offered an affidavit and certain exhibits as to the manner in which the new stock was issued by the United States Printing & Lithographing Co. and as to the taking up by Pearl Lamkin of certain subscription rights for additional stock in the United States Playing Card Co., and, by motion, asked for leave to file an amendment to Ms second answer and cross petition, settmg np these facts. This motion was overruled.

The new stock issued by the United States Printing & Lithographing Co. was a substitution for other stock which by item 3 of the agreement could be substituted by consent. The original certificate was issued in the name of Pearl Eobinson and her consent was necessary to make the exchange. There can be no question but that this stock would be bound by the instrument of March 3, 1905, and the answer of defendant practically admits it. Nor do we see how the fact that Pearl Lamkin subscribed to the additional shares of the United States Playing Card Co. can affect this issue.

She was a stockholder of record; the option to subscribe was given to all stockholders of record. It was not a dividend declared .on stock already issued, and, hence plaintiff had no rights therein. Pie was familiar with the transaction, assisted in carrying it out by acting for her under power of attorney. This was not an abandonment of the agreement of March 3, 1905.

These matters as well as other evidence is reference to want of consideration, undue influence, etc. would be material if these issues were not prejudged by the prior decision. If these questions are res adjudicates, the consideration of this evidence was properly excluded by the trial court.

In the original action of Lamkin v. Robinson, it was prayed that the agreement be set aside. The answer and cross petition asked that it be upheld and enforced.

It is true the opinion of the circuit court states:

“It is claimed that item 4 of the said agreement is testamentary in character and void for absence or inadequacy of consideration. As said item has nothing to do with the questions in this case, and can have no effect until the death of the plaintiffs, we have deemed it unnecessary to consider the validity of item 4, and the decree may so recite. ’ ’

But the decree contains the'following:

‘ ‘ The court finds that the defendant is entitled for the term of Ms life to the dividends upon the stocks in controversy in this case and set forth in the petition herein, together with the other rights given him by the instrument in writing of March 3, 1905, set forth in the petition, which instrument the court finds to be valid and subsisting except the right of survivorship provided in item 4 thereof, which the court finds it unnecessary to pass upon and does not do so. * * * Wherefore it is considered, adjudged and decreed that the defendant have and he is hereby awarded the right to draw the dividends on said stock during his life and the other rights specified in said instrument of March 3, 1905, except the right of survivorship, which is not decided as aforesaid. * * * And that subject to the provisions of said instrument of March 3, 1905, the plaintiff (Pearl R. Lam-kin) is the owner of said stock.”

It was the decree and not the opinion of the court which was affirmed by the Supreme Court.

It has been vigorously contended that by that decree the court merely refused to exercise its equitable powers and set aside the contract and therefore left the parties as they were except as to dividends, and that when the dividends were allowed to Eobinson, it was because of the long acquiescence by the daughter to this arrangement.

But the issues of lack of consideration, duress, etc., were fully presented, the common pleas court found the instrument void for lack of consideration, and on appeal the circuit court declared it a “valid and subsisting agreement,” and the opinion states:

“These agreements so far as they related to the dividends, did not change the situation of the parties. They simply created in the defendant, as a legal right, that which he had been exercising by the consent and acquiescence of plaintiffs since they became of age.”

It is further claimed that’the court held there were various separate agreements embodied in the one instrument, because the Circuit Court mentioned agreements. It must be remembered that there were two eases presented at the same time, one by Caroline Stevens, and one by Pearl Lamldn, and the word agreements in the decision evidently refers to the two instruments, one signed by each.

Many cases are cited by counsel for plaintiff in error to the effect that the dismissal of Pearl E. Lamkin’s petition to set aside the contract of March 3, 1905, was for want of equity and conferred no rights on Robinson, as the judgment was rendered on his cross petition.

The principal cases relied on being Cramer v. Moore, 36 Ohio St. 347, and Porter v. Wagner, 36 Ohio St. 471.

The case of Cramer v. Moore was one in which the plaintiff had no right to maintain the equitable action, and it was dismissed ; hence, he was entitled to put the same questions in issue in defense in an action at law. In other words, he was simply left to his remedy at law. The court says at page 349 :

“¥e do not question the principle insisted upon on behalf of the defendant in error, Moore, that a judgment of a court of competent jurisdiction, upon a question necessarily involved in a suit, is conclusive in a subsequent suit between the same parties, depending on the same question; and in respect to this quality of conclusive effect upon parties and privies, the decrees of courts of equity, upon matters within their jurisdiction, stand upon the same footing with judgments at law. ’ ’

In Porter v. Wagner, the court refused equitable relief and left the parties to pursue their legal rights.

These cases were both decided on the principle that if equitable relief is denied, either because there was an adequate remedy at law, or because no case was made out for distinctly equitable relief and the court leaves the parties to their rights at law, there is no estoppel.

The case of Porter v. Wagner and Cramer v. Moore, supra, are both considered and construed as above in Steward v. Ashtabula, 98 Fed. 516 at 519, and Stewart v. Ashtabula, 107 Fed. 857. In the last named case, Judge Day, at page 863 says:

“In the Cramer ease the court puts the decision upon the ground that the former equity proceedings may have been dismissed because of want of equity. The statement of the rule in the Porter case that a judgment is conclusive only as to facts without the proof or admission of which it cannot be rendered, is undoubtedly a correct statement of the law. It is equally true, and a necessary corollary of this proposition, that when facts have been found essential to the determination of the issues, parties are estopped from relitigating the same. ’ ’

The rule has been established since the time of the case of Rex v. Duchess of Kingston, 20 Howell’s State Trials, 355, that, a judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court.

In Hixon v. Ogg, 53 Ohio St. 361 [42 N. E. 32], the syllabus is:

“Where issue has been joined on a material fact in an action, and the issue judicially determined and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is reversed or set aside. And the fact thus established cannot be retried by the same parties in any subsequent action, whether the second action is upon the same or a different subject-matter from the first. In this respect it is immaterial that one of the actions may have been ex contractu and the other ex delicto.”

In Southern Pacific Ry. v. United States, 168 U. S. 1 [42 L. Ed. 355], Justice Harlan says:

“A right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, cannot be disputed in a subsequent suit between the parties or their privies; and even if the second suit is for a different cause of action the right, question or fact once so determined, must, as between the same parties or their privies, be taken as conclusively established so long as the judgment in the first suit remains unmodified.”

In the case of Lamkin v. Robinson, 88 Ohio St. 603 the action was to set aside the instrument of March 3, 1905, to recover possession of the stock and also the dividends collected by said Eobinson, and dividends which had accrued subsequent to the bringing of the suit. She alleged fraud, undue influence, lack of knowledge and no consideration. Eobinson, by answer and cross petition, denied all the 'allegations of fraud, undue influence, lack of knowledge and lack of consideration, and prayed for an order adjudging said agreement valid, and directing that he be entitled to possession of the stock during his lifetime, and absolutely if his daughter died before him, without issue.

All matters not admitted by tbe petition were denied in the reply.

The court of common pleas, Lamkin v. Robinson, 21 Dec. 13 (10 N. S. 1), by its decree awarded to Pearl R. Lamkin the dividends which had accrued since she revoked her said father’s authority at the time of bringing her suit, and declared the instrument of March 3, 1905, was invalid, because executed without consideration, and ordered it set aside and held for naught.

When heard on appeal in the circuit court, Lamkin v. Robinson, 34 O. C. C. 91 (15 N. S. 126), that court found by its decree that said Robinson was “entitled for the term of his life to the dividends upon the stocks in controversy * .* * together with the other rights given him by the instrument in writing of March 3, 1905, * * * which instrument the court finds valid and subsisting, except the right of survivorship provided for in item 4, which the court finds it unnecessary to pass upon and does not do so.” This decree, affirmed by the Supreme Court, not only gave Robinson the right to collect and use the dividends, but also the right to keep possession of the stock certificates, to vote said stock, and to act as attorney for Pearl R. Lamkin in reference thereto. As the dividends were in the hands of a trustee pending the litigation, it was necessary for the court to decide to whom they belonged, and the rights of the parties were there determined.

, Alleged fraud, undue influence, lack of knowledge and of consideration as to the entire instrument were issues raised in the case, and were necessarily involved, considered and determined by the judgment. These issues can not again be litigated.

The holding of the trial court in the instant case that these matters were res adjudicata was not erroneous.

Item 4 was left open and not determined by the circuit court in the prior hearing, and this was probably because there was small likelihood at that timé that the contingencies stipulated would happen, to-wit: that Pearl would die before her father, without leaving issue.

The only remaining question of moment to be determined is, whether or not item 4 is invalid for any reason other than fraud, undue influence, lack of knowledge or consideration.

It is contended that said item is executory and testamentary, and, that, therefore, the stocks would pass to the defendant by will.

The plaintiff claims that when the instrument was signed, an executed trust was established, and, that, therefore, the said item was not testamentary.

The instrument provides that the plaintiff shall retain the certificates of stock, collect and use the dividends during his lifetime, vote the stock, and act as attorney for Pearl R. Lam-kin in reference thereto. Robinson was given dividend rights during his lifetime, with full power to safeguard those rights. At his death, if Pearl R. Lamkin was alive, she was to enjoy the complete ownership, or if her death preceded his and she left issue, they should be the unconditional owners. In the event of Pearl’s death, without issue, Robinson succeeded to all rights of ownership. By this arrangement, all contingencies were provided for, and the instrument is clear, complete and definite.

The court found that Pearl was the legal owner and that the beneficial interest in said stock was held by her father. Also by the decree therein, in holding that all items of the instrument were valid, except the survivorship in item 4, which was not passed upon, the legal owner had put the physical possession of the stock in the hands of her father. She had declared the trust and notified the defendant companies. She had put it out of her power to change the investments without the consent of the cestui que trust. He also was without power to change the investments, or to sell the securities without her consent, as the certificates had never been endorsed by her.

The specific authority granted by the instrument to plaintiff to act, even after the death of Pearl R. Lamkin was passed upon in the prior suit. Therein the agreement was declared valid and subsisting. How, therefore, can this be an executory trust?

Smith In re, 144 Pa. St., 428, syllabus 2 -.

“An executory trust, so called is one in which the limitations are imperfectly declared and the donor’s intention is expressed in such general terms that something not sufficiently declared is required to be done in order to complete and perfect the trust and to give it effect. When the limitations are fully and perfectly declared, the trust is regarded as executed. ’ ’

All limitations are fully and definitely declared. Had this stock been transferred to another person to hold as trustee, and the same provisions made as are incorporated in this instrument it would not have been invalid. Pearl R. Lamkin held only the naked, legal title, and by her declaration of trust, and she designates it as a trust in said item 4, she made her act irrevocable, except with the consent of the cestui que trust. She further executed copies of the instrument, which were served on the companies issuing the stock, so that her declaration of the trust was made to all interested parties.

An owner may declare himself a trustee in the same manner as if he transferred the legal title to a third person with a similar declaration. Smith, In re, supra.

In the case of Bruer v. Johnson, 64 Ohio St. 7 [59 N. E. 741], it was held that a person may sui juris orally, or in writing, declare that he holds personal property for another, and that such declaration constitutes him a trustee of such property, and also that such a declaration of trust may operate after the death of the declarant.

This was a trust where no consideration was paid. There is nothing in the instrument in question that is executory. An owner may declare a trust and hold the naked, legal title in the same manner as if the title is transferred to a neutral trustee, and in this case the beneficial interest is separated from the legal title. This principle is referred to in: Jones v. Luplow, 13 App. 428 (31 O. C. A., 517); Flanders v. Blandy, 45 O. S., 108, 116; Worthington v. Redkey, 86 O. S., 128 [99 N. E. 211]; Locke v. Farmers Loan & Tr. Co., 140 N. Y., 135 [35 N. E. 578]; Martin v. Funk, 75 N. Y., 134 [31 Am. Rep. 446].

The court is of the opinion that this was a valid, executed trust, complete, definite and precise in its terms, all conditions of which can be fully carried out, and the subject matter concerns property which is subject to contract.

Holding the instrument to be a complete, executed and valid declaration of trust, precludes the theory that it is testamentary. It may be well, however, to briefly consider the question of whether or not Item 4 could be considered testamentary in character. If so, it would be an endeavor to transfer personalty after death, without the formal requirements of a will, and would have been revoked by a subsequent will. A will does not take effect until the death of the testator. It may be revoked at any time prior to the death and no rights are acquired thereunder until after the death of the testator.

Under the instrument herein, rights are given during the lifetime of Pearl E. Lamkin. It is true that some of those rights are to take effect in possession and enjoyment only upon the happening of certain contingencies, that is, the death of Pearl E. Lamkin, without issue, but the rights given could not be revoked by her alone. The rights were granted at the time of the execution of the instrument, although possession and enjoyment of some of those rights were postponed until her death. Such an instrument is not testamentary. Disposition of property to take effect at death may be controlled and not be testamentary if a present interest passes, and the disposition made is not revocable. Robb v. Washington and Jefferson College, 185 N. Y., 485 [78 N. E. 359]; Patrick v. Parrott, 92 Ohio St. 184 [110 N. E. 725]; Lewis v. Curmett, 130 Ia. 423 [106 N. W. 914] ; Emery v. Darling, 50 O. S., 160 [33 N. E. 715].

It is also contended that the defendant by this trust agreement was deprived of his rights in the stock, and that this was a fraud upon his marital rights. We do not consider that there was any merit in this contention. Sections 7798 and 7799 Gr. C.; Urner v. Yager, 9 Dec. Re. 592 (15 Bull. 264), affirmed no op. Urner v. Yager, 27 Bull. 148.

An examination of the record and a study of the voluminous briefs herein does not disclose any error prejudicial to the plaintiff in error.

The decree below refers to 381 31-100 shares of the second preferred stock in the United States Printing & Lithographing Co. This should be corrected to read 281 31-100 shares.

The judgment below, with the above correction, will be affirmed.

Hamilton and Cushing, JJ., concur.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    LIS PENDENS
    [Crawford (3rd) Court of Appeals,
    April 20, 1922.]
    Crow, Hughes and Warden, JJ.
    Chester A. Meck v. Bertha Clabaugh.
    1. Reason for Rule of Lis Pendens.
    Tbe rule as to Us pendens is founded on its necessity to prevent alienation of property in dispute and to give effect to court proceedings, and does not rest on tbe theory of notice.
    2. Extent to which Purchaser Pendente Lite is Bound.
    A purchaser pendente lite of property involved in litigation, is bound by tbe decree or judgment rendered in tbe case pending, and no further, and is not constructively bound by a claim of tbe party to tbe pending suit other than that which is consummated in tbe final judgment.
    Appeal.

      Chester A. Meek, for plaintiff.

      Edward J. Myers, for defendant.
   HUGHES, J.

This is an action in partition before this court on appeal. The facts, as we find them to be, are as follows :

During the year 1917, the defendant, Bertha Clabaugh, and her husband, purchased Lot Number 1800 in the city of Bueyrus, Ohio, taking title jointly for the same and in equal moieties. In February of 1921, the defendant filed a petition in the court of common pleas of Crawford county, Ohio, praying for divorce and alimony and custody of children, and for a determination of the property rights between her and her husband.

In this petition she alleged that all of the purchase money, with which this lot was procured, had been furnished by her. During the pendency of this action the plaintiff, without any actual knowledge of the claims made by the defendant in this suit, purchased from her husband, his half interest in this lot and took his warranty deed for the undivided half thereof.

Defendant’s action was thereafter prosecuted to the end that divorce and alimony were denied, there was no adjudication of property rights, and her petition was dismissed at her costs.

From this judgment she prosecuted error to the court of appeals, where the judgment of the court below was affirmed.

In this action for partition the defendant sets forth in her answer, practically the same claim made in her divorce case; that is, that the purchase price of this lot was furnished by her and that her husband had no interest therein, and she seeks to enforce a trust for her benefit against the plaintiff here, on the theory that he was a purchaser pendente lite.

There may be found in decisions and in some language used by text-writers, sufficient to justify this contention. However, we believe this comes from a misconception of the rule, for while lis pendens does operate as notice pending the suit, it is not based upon notice, but is established to prevent the alienation of property which is the subject-matter of litigation.

“The rule, as to the effect of lis pendens, is founded on the necessity of such rule to give effect to the proceeding of a court of justice. Without it, every judgment and decree for specific property might be rendered abortive by successive alienations. This necessity is so obvious that there is no occasion to resort to the presumption of notice of the pendency of the suit, to justify the rule. This principle, however necessary, was harsh in its effects on purchasers, and was confined in its operation to the extent of the policy upon which it was founded; that is, to the giving full effect to the judgment or decree which might be rendered in the suit depending at the time of purchase. As a proof of this, if the suit was not prosecuted with effect, as if a suit at law was discontinued, or a suit in chancery dismissed for want of prosecution, or for any other cause not upon the merits, although the plaintiff might bring a new suit for the same cause, he must make him who purchased during the pendency of the former suit a party; and, in this suit, the purchaser would not be at all affected by the pendency of the former suit at the time of his purchase. If a lis pendens was notice, then it should bind the purchaser, like actual notice in any subsequent suit prosecuted for the same cause; but this it does not. English judges and writers have carelessly called it notice, because, in the one single case of the suit prosecuted to a judgment or decree, it had the same effect upon the interest of a purchaser as notice had, though for a different reason. But the courts have not in any case given it the real effect of notice.” Cherry v. Dickerson, 128 Ark. 689 [194 S. W., 690]; Bailey v. Ford, 132 Ark. 203 [200 S. W., 797],
“The sole object of Us pendens is to keep the subject in controversy within the power of the court, until the judgment or decree shall be entered, and thus make it possible to give effect to decrees and judgments of courts of justice.” Cook v. Hendricks (Ga.) 90 S. E., 383; Glatti v. Bradford, 105 Miss. 573 [62 So. 643],

Our attention has been called to no case in Ohio which defines the rule with this particularity.

However, our Supreme Court has recognized the rule that the decree of the court binds the property in the hands of the purchaser, although he is not a party and though he purchased with no .actual notice of the claim of the party in the suit, and that he is bound by the decree that is eventually entered. Fox v. Reeder, 28 Ohio St. 181 [22 Am. Rep. 370]; Benton v. Schaffer, 47 Ohio St. 117 [24 N. E. 197; 7 L. R. A. 812]; Stewart v. Wheeling & L. E. Ry., 53 Ohio St. 151 [41 N. E. 247; 29 L. R. A. 438],

It must follow that plaintiff’s title to the undivided one-half of the lot in question here, is not affected by any claim the defendant might have inasmuch as the decree and judgment in her suit prosecuted against her husband, was adverse to her and her petition was dismissed without any relief granted to her.

Partition will therefore be awarded.

Crow and Warden, JJ., concur.


author: SHIELDS, J.

text:
    ELECTIONS
    [Stark (5th) Court of Appeals,
    February Term, 1922.]
    Shields, Patterson and Houck, JJ.

      C. S. Westover v. Norman F. Clark.
    1. Discretion of Election Officials not Reviewable by Courts.
    In the absence of fraud or mistake committed or objection made by election officers in arranging and determining the form of ballot or in furnishing said ballots for use at an election as provided by law, their action in that behalf is not reviewable by the courts.
    2. Designation of Candidates by Placing Circles at Head' of Ballot not Applicable to Independent Tickets.

      Candidates for office who Rave not been put forward by any organized party and are running as independent candidates as distinguished from party candidates are not entitled to Rave a circle tRree-fourtRs of an inch in diameter, surrounded by the words printed in heavy nonpariel type “For a straight ticket mark within circle,” placed at the head of the column containing their names, and failure to place such a circle and lettering over the names of independent candidates does not render the ballot constructively fraudulent or give a court jurisdiction in the matter.

      Emmons & Ermnons, for plaintiff.

      Hart & Koehler, for defendant.

       Motion to certify overruled, Westover v. Clark, 20 O. L. R. 116.

   SHIELDS, J.

This is a contested election case. The plaintiff in his petition avers that he is an elector of the city of Alliance in said Stark county. That on November 8, 1921, he was a candidate on an independent ticket, having theretofore been duly and legally nominated for the office of mayor of said city, and that the defendant having theretofore been duly nominated, was a candidate on the republican ticket for said office of mayor of said city. That on'November 14, 1921, the board of deputy state supervisors of elections of said Stark county canvassed said votes and found as a result of said election that said Clark had received 2,569 votes for said office and that the plaintiff had received 2,460 votes for said office, and declared that said Clark was duly elected to the office of mayor of said city.

He says that said Clark was not duly and legally elected to said office of mayor at said election and appeals from said declaration of said election upon the following grounds:

Because the ballots printed and furnished for and used at said election were invalid and not lawful, and not in conformity with the requirements of Secs. 5021-5026 G, C. and co-related sections, in this, that said independent ticket wholly failed to have a large blank circular space, three-fourths of an inch in diameter, above the list of candidates on said independent ticket, and wholly failed to have said circle or the space where said circle should have been, surrounded by the following words, printed in heavy faced nonpareil type: 11 For A Straight Ticket Mark Within Circle,” and thereby wholly failed to give each of the electors a clear .opportunity to designate by a cross in said large blank circular space Ms choice of ticket and desire to vote as contemplated by said section, all of which was in fraud of the rights of the plaintiff as such candidate, whereby the plaintiff was deprived of having a fair, lawful and equal chance with the defendant for said office and whereby the plaintiff was deprived of having a correct count, and that by reason thereof said election was wholly void.

Said petition then recites that notwithstanding said ballots were illegally printed, the plaintiff received a plurality of all the legal votes cast at said election for mayor of said city and is entitled to receive a certificate of his election thereto from the board of deputy state supervisors of elections of said Stark county, for the reason that the ballots cast in certain precincts in certain wards in said city (named in said petition) were not properly and lawfully counted, but that in each of said precincts votes were counted for the defendant which should have been counted for the plaintiff, and that as a result of such unlawful count, there were approximately 300 ballots cast at said election for mayor which were not counted, tallied or certified. That if all the ballots legally cast for him at said election had been counted as cast, the plaintiff would have had,, and did have, a plurality of all the legal votes cast at said election and would have been declared elected as mayor of said city.

He asks that an order be issued to said board of deputy state supervisors of elections, directing it to preserve and produce in court the poll-books and tally sheets returned from each of said voting precincts in said city of Alliance and all the ballots cast at said election, that said ballots be re-opened, counted and' the time result of the vote at said election be ascertained, and that the declaration and certification of said board of deputy state supervisors of elections that said Norman W. Clark was elected mayor of said city of Alliance be set aside, and that the plaintiff, C. S. Westover, be found to be the duly elected mayor of said city.

In his answer the defendant admits that at the municipal election held in the city of Alliance, November 8, 1921, the plaintiff was an independent candidate and the defendant was the duly nominated and contesting republican candidate for tbe office of mayor of said city of Alliance; tbat the board of deputy state supervisors of elections of said county canvassed tbe votes cast at said election for tbe office of mayor of said city and found as a result of said election tbat tbe defendant bad received 2,569 votes and that tbe plaintiff bad received 2,460 votes as such independent candidate for said office, and declared that tbe defendant was duly elected to said office of mayor of said city and issued to him a certificate of election in due form according to law, and except as in said answer admitted, tbe defendant denies the allegations in plaintiff’s petition.

In a cross petition tbe defendant avers tbat certain errors and mistakes were made in the count of tbe ballots cast at said election (which are set out at length in said cross petition) and tbat bad all tbe votes cast for him been properly counted be would have been entitled to a larger plurality than 109 votes, and be asks tbat said ballots be recounted, that the true result be ascertained and certified, and tbat said declaration and certification of tbe election of tbe defendant to said office of mayor be affirmed.

Acting under tbe authority granted by Sec. 5090-1, upon due application made, it appears tbat tbe court below issued its order to tbe board of deputy state supervisors of elections to preserve the original poll books and tally sheets and all tbe original ballots east by all tbe vpters returned from each of tbe thirty-two voting precincts of said city until tbe contest herein should be fully determined.

It likewise appears upon satisfactory evidence shown tbat said court determined tbat a recount of tbe vote east at said election on November 8, 1921, for tbe office of mayor of said city was necessary in precincts A and F of tbe First Ward, in B of tbe Second Ward, in B, C and G of tbe Third Ward, and in G, J and K of tbe Fourth Ward, in said city, and appointed a commission to make said recount in open court, and such recount having been made, and tbe court having received tbe report of said commission of said recount, together with other evidence in the ease, found the issues joined in favor of the defendant, Norman W. Clark, and that said Norman W. Clark received 2,-693 legal votes at said election for the office, of mayor of the city of Alliance, that the plaintiff, C. S. Westover, received 2,-461 legal votes for said office, and said defendant, Norman W. Clark, having received a plurality of the legal votes so cast, was duly elected to said office of Mayor of said city at said election. That said court ordered and adjudged that the petition of the plaintiff be dismissed and that the defendant be declared the duly elected Mayor of said city. A motion for new trial was overruled and a judgment was entered for the defendant in accordance with said finding, from which finding and judgment the plaintiff appeals to this court.

In our analysis of the case, the single and only issuable question in the case is to be found in the plaintiff’s allegation “that said Independent ticket wholly failed to have a large blank circular space, three-fourths of an inch in diameter, above the list of candidates on said independent ticket, and wholly failed to have said circle, or the space where said circle should have been, surrounded by the following words, printed in heavy faced nonpareil type: ‘For A Straight Ticket Mark Within Circle.’ ” And this view was apparently shared by counsel, their sole contention in argument being based on the construe-1 tion of sections of the statutes claimed to be applicable to this feature of the case. That the solution of the question raised is determinable by statutory construction is quite evident, for all of our election machinery is of statutory origin and regulated and controlled by statutory legislation. Many of the old forms observed in elections have disappeared and new and other forms have taken their place.' The method of nominating candidates has been changed, new boards have been created and almost numberless other changes have been introduced in our voting and election system, all for the purpose of safeguarding the ballot and purifying elections.

Looking to the record, we find that the plaintiff was an Independent candidate for the office of mayor of the city of Alliance, nominated by petition under favor of Sec. 4999; that the defendant, Norman'W. Clark, was the regularly nominated candidate on the Republican ticket for said office, and that Thomas H. Nichols was the democratic candidate for said office, the latter, however, makes no claim to said office and therefore does not figure in this contest. The plaintiff claims that the defendant Clark was not duly elected to said office and that said pretended election is null and void because he says the ballots furnished the electors of said city were not as the law prescribes they should have been and were therefore not lawful ballots, and that by reason thereof a fraud was perpetrated upon the plaintiff and upon all the electors in said city, in this, “that said ballots did not have the circle above the list of names of candidates on the independent ticket so as to give a clear opportunity to each and every voter, intelligent and illiterate alike, to vote a straight ticket. ’ ’ The record shows that in addition to the name of the plaintiff, C. S. Westover, on the independent ticket there was also the name of Raymond A. Wright, a candidate for councilman at large. That the form of the ballot is under the jurisdiction of the officers of the election laws of the state will not be questioned, and that irregularities or mistakes in matters affecting the nomination of candidates for municipal offices is subject to the jurisdiction of the board of deputy state supervisors of the county, and that its decision shall be final, is provided by Sec. 5006. While this section appears to specifically refer to irregularities in nomination papers, it was argued that its terms are sufficiently broad to include any irregularities in the form of'the ticket, but in any event the defendant urges that the plaintiff ought not to complain of the form of the ticket because weeks before said election he admitted having caused facsimile ballots to be printed and circulated, all of which charged him with knowledge of the form of the ballot adopted by said board of deputy state supervisors of elections of said county, to be voted at said election when he might have made objection thereto, and not having made any such objection, he should not be entitled to base a contest on such irregularity, if it be an irregularity. Allen v. Glynn, 17 Colo., 338 [29 Pac. 670; 15 L. R. A. 743; 31 Am. St. 304]; State v. Norris, 37 Neb., 299 [55 N. W. 1086].

And if the plaintiff made nse of such ballot in circulating facsimiles thereof before election, with full knowledge of such alleged irregularity, he should not be heard to complain of its form after, the election. South Charleston, In re, 50 Bull., 173.

Ordinarily a person is estopped from taking advantage of his own wrong, and the defendant here pertinently raises the question as to whether the plaintiff, who instead of remonstrating against the alleged irregularity in the form of the prepared ballot, should hazard the outcome .of the election, and after being defeated, seek to nullify such election? The plain logic of the proposition seems to furnish the answer. Back of this proposition, as it seems, is the power lodged in the election officers by the legislature to arrange and determine the form of ballots, and to furnish them as provided by statute, and m the absence of fraud or mistake committed, or objection made, is such action reviewable by the courts? In State v. Ehrman, 2 Dec. 400 (30 Bull. 319), it is held that

“The board of deputy state supervisors of elections cannot be interfered with in matters of detail pertaining to the arrangement and printing of the official ballot. ’ ’

In Pugh Printing Co. v. Deputy State Supervisors 12 C. D. 477 (22 R. 584), it is laid down that—

“Courts cannot be substituted for the deputy state supervisors of elections. Neither can the courts control the supervisors in the exercise of their discretion. It is only when the courts find present some of the equitable grounds of fraud or mistake, or find the decision or award to be wrongful, fraudulent, collusive or arbitrary, that they can be set aside to restrain the conclusion or determination of such a board.”

And in State v. Graves, 90 Ohio St. 311-318 [107 N. E. 1018], it is held that the state supervisor and deputy state supervisors have full and final authority in the matters here referred to, reserving to the courts authority to relieve against abuse of discretion or fraud by such officers.

In view of these holdings we think it clearly appears that the action of the deputy state supervisors of elections is not reviewable by the courts, unless, as stated, it be shown that there was an abuse of discretion or fraud. And this leads us up to the real question in controversy here: Did the board of deputy state supervisors of elections of said county fail to furnish such a ballot to the electors of said city at said election for mayor as the statutes prescribe ? The plaintiff claims that it did not ; the defendant claims it did. The plaintiff alleges “a constructively fraudulent ballot” was provided; the defendant alleges it was a lawful ballot. Let us examine the statutes on the subject which must determine the disputed question. As already stated, numerous statutes are enacted regulating the conduct of elections to which our attention has been called by counsel, but the main controversy here seems to hinge upon the construction to be given Sees. 5021 and 5026.

Section 5021 is as follows:

“The ballot shall be so printed as to give each elector a clear opportunity to designate by a cross mark in a large blank circular space, three quarters of an inch in diameter, below the device and above the name of the party at the head of the ticket or list of candidates his choice of a party ticket and desire to vote for each and every candidate thereon, and by a cross mark in a blank enclosed space on the left and before the name of each candidate his choice of particular candidates.”

Section 5026 is as follows:

“The heading of each party ticket, including the name of the party, the device above and the large circle between the device and such name shall be separated from the rest of the ticket by a heavy line, and the circle above the name of the party in which the voter is to place the cross mai'k, if he desires to vote the straight ticket, shall be defined by heavier lines than the lines defining the blank spaces before the names of candidates, and such circle shall be surrounded by the following words, printed in heavy face non-pareil type: 'For a straight ticket mark within this circle.’ ”

Counsel for defendant say “Mr. Westover was nominated by petition and was certified and was put on the ballot at the head of the independent ticket,” but the record does not show that any “Independent ticket” was certified to the board of deputy state supervisors of elections, or that any such ballot was formulated or provided by said board to be voted at said election for the office of mayor of said city. True, the names of C. S. "Westover for mayor and the said candidate for councilman at large were placed upon the ticket to be voted for, not however on an “Independent ticket” bid as independent candidates for said respective offices. Although the names of these candidates were on the same ballot, there appears no connection whatever between them as candidates forming an “Independent ticket.”

As we read Sec. 5021 it applies only to a party having a device, or to some party organization having a name. Party in the sense here used implies organization and said section is clearly intended to extend to and include party organizations, and not individuals as such. It refers to an association of persons formed for political purposes, and the device authorized by Sec. 5014 is one selected and adopted by the party in state convention. The device selected, therefore, is one designating the name of a party and in no sense applies to an individual. Here the plaintiff was a candidate for said office of mayor, not of a party, but as an independent candidate, as stated, with no political organization or committee back of his candidacy, but the defendant says that said section provides that “the ballot shall be so printed as to give each elector a clear opportunity to designate by a cross mark in a large blank circular space three-quarters of an inch in diameter, below the device and above the name of the party at the head of the ticket or list of candidates his choice of a party ticket, etc.,” and “list of candidates” refers to candidates on any ticket, with or without any party device. The language of the statute is “below the device and above the name of the party at the head of the ticket or list of candidates.” Section 5017 provides that “every ballot shall contain the names of all the candidates whose nominations for any office have been duly made, arranged in tickets or lists under the respective party or political or other designation.” Construing these two sections together (for they are in the same chapter) we think that the word “lists” as used by the legislature in Sec. 5021 refers to a political party or organization. But whatever its meaning, it is urged upon behalf of the plaintiff, that although an independent candidate, he was entitled to have the circular space at the head of the column in which his name appeared on the ticket that the electors o£ said city might share the same privilege accorded to the other candidates on the same ticket, in voting a straight ticket by placing a cross in said circle. The mere absence of the circle, we take it, could work no prejudice to the defendant who had no party or party organization or party emblem. Ballots marked either at the top of the ticket or in the square opposite his name, or otherwise indicating the intention of the voter to vote for him, would be properly counted for him as such candidate. In State v. Markley, 30 O. C. C. 113 (9 N. S. 561), it is held that

“Inasmuch as a single candidate on a nonpartisan ticket has no party emblem and no one else can go on that ticket, the printing on the nonpartisan ticket of words indicating various offices to be filled and voted for with a circle above and blocks outside of the column will be regarded as surplusage; and if a voter makes a mark above or below or on the side or at the top of the column occupied by the name of the non-partisan candidate, his intention to vote for such candidate is clearly indicated and the ballot should be counted. ’ ’

As is common knowledge, the judicial ticket voted is nonpartisan, and is not the independent candidate on the same footing with reference to the absence of a circle on the ticket? In the light of the reasoning in the opinion of the court in the case cited, it is just the same. Counsel for the defendant cite us to the case of State v. Ehrman, 2 Dec. 400 (30 Bull. 319), although a case in mandamus, it involves the same question as made in the ease at bar. In the opinion in that case, Judge Sayler says:

“In the case at bar the plaintiff has the clear legal right to have the ticket printed on the official ballot; but he avers that the ticket is about to be printed according to law and the prayer of the nomination papers, on the official ballot. He complains, however, that the board refuses to print the circular space at the top.
“The board has determined, on a hearing had, that a proper construction of the statute precludes the printing of the circular space at the head of this ticket, because this ticket is not a party ticket, but is a ticket containing names of independent .candidates as designated in Sec. 8 and that the list of independent candidates is not entitled to the circular space.”

Although a nisi prius case, the principles of law announced therein harmonize with the views entertained by this court as being applicable to the case before us. As already stated, while we think that the action of the deputy state supervisors of elections was conclusive and final in the matter of preparing the form of the ballot in question, still judicial action having been invoked in this case, we are unanimously of the opinion that the absence of the circle, surrounded with the words “For A Straight Ticket Mark Within This Circle” (provided for in Sec. 5026) on the independent ticket voted for the office of mayor of said city of Alliance held on November 8, 1921, did not invalidate the ballot containing the name of the plaintiff as a candidate-on said ticket, nor was it necessary that said circle and designation appear thereon to give validity to the form of said ballot.

A judgment may be entered herein in favor of the defendant, Norman W. Clark, as prayed for in his cross petition, confirming the declaration of his election as mayor of the city of Alliance, Ohio, under the election held in said city on November 8,1921, and the petition of the plaintiff will be dismissed, at his costs.

Houck and Patterson, JJ., concur.


author: CROW, J.

text:
    RAPE
    [Crawford (3rd) Court of Appeals,
    April 21, 1921.]
    Crow, Hughes and Warden, JJ.

      Edward Driscoll v. State of Ohio.
    Elements Necessary to Conviction for Rape.
    In a prosecution for rape it is reversible error for the court, in its enumeration to the jury of the elements necessary to a conviction, to fail to include the requisite fact that the person upon whom the rape was committed was “a person other than a daughter or sister of the accused, or a female person under twelve years of age.”
    Error.

      Edward J. Meyers, for plaintiff in error.

      Chester A. Meek, for defendant in error.

       Affirmed State v. Driscoll, 19 O. L. R. 511.

   CROW, J.

This is a proceeding in error to reverse the judgment of the court of common pleas of Crawford county, Ohio, entered on a verdict of guilt of rape.

The indictment charges rape on the body of a person therein named, “then and there being a female person other than the daughter or sister of plaintiff in error, such person being of the age of fourteen years to wit, of the age of seventeen years.”

There is evidence tending to prove all the material ingredients of the crime, and the record does not show any concession by the accused of the existence of any of said elements.

1. The first assignment of error is that the verdict is not supported by sufficient evidence.

The court has carefully read and studied all the testimony, with the result that there is not such unanimity of opinion on this question, as will permit the judgment to be disturbed.

2. Error in the charge submitting the ease to the jury is relied on in two particulars:

(a) In failing to charge that defendant could be convicted of assault and battery.

This feature can be at once disposed of on the ground that no request was made for such an instruction. State v. McCoy, 88 Ohio St. 447 [103 N. E. 136] syllabus.

(b) In the enumeration of the elements necessary to a conviction, there was omitted the requisite fact that the person upon whom the rape was committed was a person other than the daughter or sister of the accused, or a female person under twelve years of age.

This assignment of error must be sustained for the reason that such fact was of the substance of the offense charged; that is, it was a matter of description. Howard v. State 11 Ohio St. 328.

Section 12413 of the General Code defines two distinct offenses, one punishable by imprisonment in the penitentiary during life, and the other by imprisonment in the penitentiary not less than three years, or more than twenty years. The indictment in the present case is for the offense punishable as last stated.

The reasoning of Howard v. State, supra, is as valid now as it was when the decision was announced, and in no reported case has the correctness of that decision been questioned.

The trial court enumerated five facts which if found by the jury, would warrant conviction. One essential of the offense charge was omitted, namely; that the subject of the rape was a female person other than the daughter or sister of the accused, or a female person under twelve years of age.

For this omission the judgment must be reversed, the verdict set aside, and the cause remanded for a new trial and further proceedings according to law.”

Hughes and Warden, JJ., concur.


author: ALLREAD, J*.

text:
    INSURANCE
    [Knox (5th) Court of Appeals,
    1922.]
    Shields, Patterson and Houck, JJT

      Liberty Mut. Ins. Co. v. Lewis B. Houck.
    Oral Contract for Automobile Insurance Contracted with Agent Held Valid and Binding.
    An agreement entered into between an owner and a local or soliciting agent for fire and theft insurance, covering an automobile and personal effects therein, is a contract in praesenti and becomes effective immediately. An attempt by the insurance company in issuing the policy to ratify the agent’s contract in part and reject it in part is without effect in the absence of consent by the insured, and without actual notice he is not bound by conditions in the policy inconsistent with the agreement entered into with the agent, nor by limitations in the charter of the insurance company.
    Error.

      Alloman, Funkhouser & Murr and L. C. Stillwell, for plaintiff in error.

      F. 0. Levering, attorney for defendant in error.

       Motion to certify overruled, Liberty Mut. Ins. Co. v. Houck, 20 O. L. R. 119.

   ALLREAD, J*.

The original action was brought by Lewis B. Houck against the Liberty Mut. Ins. Co. upon a contract of insurance against loss by fire and theft of his automobile and personal effects therein. The loss by theft of said personal effects from the automobile shortly after the insurance contract was made and the value thereof was undisputed. The action was brought to recover $200.00 being the amount insured for personal effects. The plaintiff recovered a judgment in the court of common pleas.

From the undisputed evidence it appears that Judge Houck, plaintiff below, applied to a local insurance agent at Mt. Vernon for fire and theft insurance upon his Dodge sedan, $1,000 and upon the personal effects therein $200, total $1,200, and that the agent assured him that he could place the insurance with the plaintiff in error and agreed to do so. The amount of the premium for said insurance was calculated and agreed upon and the following receipt given:

June 4, 1920 No.-
“Received of Lewis B. Houck $18.12 Eighteen and 12-100 Dollars for one year premium on auto policy in Liberty Mutual Insurance Company of Dayton, Ohio, $1,000 on car and $200 on personal effects. Fire & Theft Insurance.
Will J. Welsh, Agt.”

Judge Houck authorized the agent to sign for him the application and to leave the policy, when issued, in his office at Mt. Vernon. An application for fire and theft insurance for $1,200 was forwarded by the agent to the insurance company. It is not clear from the evidence whether the agent in the application allotted $200 or any other amount to personal effects. The company, upon receipt of the application, issued the policy for $1,000 upon the automobile alone, no amount being designated for loss of personal effects. Such policy was mailed to the agent at Mt. Vernon and by him deposited in Judge Houck’s office as agreed. Judge Houck had no actual' notice or knowledge of the terms of the policy issued until after the loss complained of. Counsel for plaintiff below rest their claim upon the contention that there was a present contract of insurance entered into by plaintiff below and the insurance agent at Mt. Vernon, and the insurance company was bound thereby. It is well settled that an insurance contract may be entered into by the assured and a duly authorized agent of the insurer to take effect at once, and that a valid obligation is thereby imposed upon the insurance company. Hartford F. Ins. Co. v. Whitman, 75 Ohio St. 312 [79 N. E. 459; 9 Ann. Cas. 218; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; [15 Am. Rep. 612] ; Newark Mach. Co. v. Kenton Ins. Co., 50 Ohio St. 549 [35 N. E. 1060; 22 L. R. A. 768]; Eames v. Home Ins. Co. 94 U. S. 621 [24 L. Ed. 298]. There is an abundance of authority in this state and elsewhere that a valid insurance contract in praesenti may be made in advance of the issuance of the policy. 14 Ruling Case Law, 850. The best definition of such a contract is thus stated by Mr. Justice Bradley in Eames v. Home Ins. Co. and approved in the opinion in Newark Mach. Co. v. Kenton Ins. Co., to-wit:

“It is sufficient if one party proposes to be insured, and the other party agreed to insure, and the subject, the period, the amount, and the rate of insurance is ascertained or understood, and the premium paid if demanded. It will be presumed that they contemplate such form of policy, containing such conditions and limitations as are usual in such eases, or have been used between the parties. This is the sense and reasoning of the thing, and any contrary requirement should be expressly notified to the party to be affected by it.”

"We think the undisputed evidence makes it clear that all the essentials of a contract of insurance in praesenti are found in the negotiations and agreement between Judge Houck and the agent of the insurance company. Judge Houck planned to and did leave, the morning following the making of the contract, for an extended automobile trip and the insurance was designed to become operative immediately.

This brings us to the question of the authority of the local agent at Mt. Yernon to bind the company.

Section 9586 G-. C., provides:

“A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party, company or association, thereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding.”

This is a statutory declaration of an agent’s authority and cannot be defeated by any limitation imposed by the insurance company. The local agent of the plaintiff in error at Mt. Vernon was a soliciting agent and his authority is measured by the terms Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St. 647; Farmers Ins. Co. v. Williams, 39 Ohio St. 584 [48 Am. Rep. 474]. The purpose of the statute under consideration was to protect parties seeking insurance and who necessarily are required to deal with local agents and thereby place them upon equal footing with the insurance company and relieve them from secret limitations placed upon the agent’s authority. It is not clear whether the local agent at Mt. Vernon specified in the application the amount of insurance designed to cover personal effects. If the agent did not, his failure is not chargeable against the assured. If the local agent at Mt. Vernon properly specified the amount of insurance designed to cover the personal effects then the company had no authority to modify the insurance' contract already made by the agent and issue a policy for the amount designed to cover the automobile alone. Such policy could become the insurance contract only by approval and ratification of the assured. This is not claimed. See Fire Ins. Co. v. Goldstein, 111 Md. 83.

Whether the insurance company had the right, promptly and before loss, upon notice to the assured, to reject the entire application and cancel the insurance contract, we do not decide.

The insurance company did not attempt to reject the entire application nor cancel the policy. It attempted to ratify so much of the agent’s contract as met its approval and reject the balance.

The insurance company as against the assured was charged with the knowledge of its agent and by affirming the acts of the agent in part it must be held, under the circumstances, to affirm the same in toto. Winpenny v. French, 18 Ohio St. 469; United States Bolling Stock Co. v. Atlantic & G. W. Ry., 34 Ohio St. 450 [32 Am. Rep. 380].

In the absence of actual notice to the assured he would not be bound to take notice of conditions in the usual form of policy issued by the insurance company inconsistent with the insurance expressly contracted for by the local agent. Nor would the assured, in the absence of actual notice, be bound by the limitations in the charter of the insurance company. No such actual notice on the part of the assured is claimed and the undisputed evidence was that the assured relied upon the agreement and representation of the local agent of the insurance company.

We agree with the trial court that all material facts in this ease are undisputed, and that the case resolves itself into a question of law. We are also of opinion that the trial court was right in instructing a verdict upon the undisputed evidence in favor of the plaintiff below.

Judgment affirmed.

Shields and Patterson, JJ., concurring.


author: INGERSOLL, J.

text:
    INTOXICATING LIQUORS
    [Cuyahoga (8th) Court of Appeals,
    June, 1922.]
    Vickery, Sullivan and Ingersoll, JJ.
    John Ignath v. State of Ohio.
    1. Intoxicating Liquors Seized Admissible in Prosecution for Having Possession.
    In a prosecution for unlawful possession of intoxicating liquor, it is not error to permit introduction in evidence of the liquor found and seized on defendant’s premises, where no motion or petition was filed for a return of the property to the defendant on the ground of illegal seizure.
    2. Burden of Showing Place where Liquor Found Bona Fide Private Residence on Defendant.
    The state is not required to allege or prove that the defendant does not come within the proviso or exception of the statute, and in a prosecution for having unlawful possession of intoxicating liquor, it is for the defendant to show that the place where the liquor was found was a tona fide private residence.
    Error J. P. for Euclid Township.

      J. M. Kiss, for plaintiff in error.

      L. A. Tucker, for defendant in error.
   INGERSOLL, J.

Plaintiff in error was arrested upon a warrant for the violation of See. 6212-15 G. C., charging him with the unlawful possession of intoxicating liquors thereunder. Trial was had before L. L. Marshall, a justice of the peace for Euclid township, on March 27, 1922, wherein the defendant was found guilty and sentence imposed, from which conviction and sentence he prosecutes error in this court.

Upon the trial of the case in the lower court, no evidence whatever was introduced by the defendant, but upon the close of the state’s case, defendant, after moving for his discharge, rested his case.

The testimony introduced by the state, as appears from an agreed statement of facts filed herein, discloses that on March 18th, Carl Metta and James Naylor, both of whom were federal prohibition officers, together with R. E. DeSalm, a constable of Euclid township, by virtue of a search warrant addressed to the constable, made a search of the premises of plaintiff in error located at 4908 Detroit avenue, wherein they found four gallons of whiskey, which witnesses, Metta and Naylor testified, after being properly qualified, was rye whiskey. It further appeared from the testimony of the witness Metta that the containers holding said liquor bore no revenue stamps, and that in his opinion said rye whiskey was contraband liquor.

Prior to nor during the trial, no motion, application, or petition for the return of the property seized under the search warrant was made or filed, defendant simply making a formal objection to the introduction of the evidence without specifying the ground of his objection.

Upon argument before this court, but two questions were raised:

1. Did the court err in permitting the introduction of the evidence seized under the search warrant?

2. Did the burden of proving that the possession of the liquors seized was lawful or unlawful, rest upon the state or upon the defendant?

As to the first proposition, it is the law that no application having been made for the return of the property seized prior to the trial of the case, that the- question cannot now be raised in this court, and it was not error for the court to permit its admission in the case.

This question has arisen and been decided by the courts of appeals in six of the appellate districts of this state, each of them holding that if the defendant wishes to avail himself of his right to object to the introduction of the evidence seized under a search warrant, that he must make a reasonable application for the return of the property in an independent proceeding prior to the trial of the case in which said evidence is to be used.

This question was last before this court in the case of Cordova v. State, wherein Judge Sullivan, speaking for the court and reviewing the decisions submitted upon this question, held that such procedure was required.

Prior to that, in the case of Hendershot v. State, 140 App. 430 this court, speaking through Judge Vickery, in an opinion dated March 19, 1921, said as follows:

“We would not notice that in this case if it were not for the statement of the court below that he was going to hold in that way until the court of appeals held otherwise, because the record nowhere shows that a motion was made or the proper proceedings taken to get this property from the officers’ possession. In order to avail one’s self of this right to object to the use of the testimony thus obtained when no writ was issued, or a defective writ was issued, it seems to be necessary that a petition for the return of the property sworn to by the defendant should be filed at some time before the final adjudication of the case, or before the evidence is sought to be introduced, and as this was not done in the case at bar, or at least the record does not show that it was done, the defendant below might have been deemed to have waived this right. ’ ’

In the present case, no such application or petition for the return of the property has ever been filed, and relying upon the previous attitude of this court alone, the court is convinced that the first question above set forth should be answered in the negative.

In further support of this contention, the court calls attention to the case of Ankenbrandt v. State, decided by the court of appeals sitting in Lucas county, on February 13, 1922, wherein the court, passing- upon a somewhat similar question, stated as follows:

“No demand was made at any time upon the mayor for the return of the property in question. We have no difficulty in arriving at the conclusion that the demand for the return of goods alleged to have been illegally taken from the possession of the owner must be made upon the court, prior to the time of trial and not upon the individual officer in whose custody the property is. Manifestly this is true because the rightfulness of the demand is a question that must be tried before the court before whom the proceeding is pending.
“It is a question of fact which should be presented to the court in advance of and separate and apart from the trial of the case itself, in order that the trial court may have the opportunity to pass upon the application, and either order the return of the property or refuse to order the return of the property as the facts determined should be done, prior to the commencement of the trial itself.”

An other Ohio case that has been widely discussed upon this question, and frequently misunderstood and misinterpreted, is that of Kovacs v. State, 24 N. P. N. S. 1, decided by Judge Snediker of the Montgomery common pleas, wherein the court says:

“Where evidence is offered, if it be otherwise competent and relevant, an objection to its admission on the ground that it has been secured by unreasonable search and seizure, will not be entertained by the court. ’ ’

In the case of Adams v. United States, 192 U. S., 585 [48 L. Ed. 575], the court, in passing upon this question, says:

“A defendant who thinks himself wronged by the seizure of property belonging to him which he expects will be used against him later as evidence on a criminal charge, is not without adequate remedy. He should apply to the court for the return of the property alleged to have been illegally seized, and the issue of the legality of the seizure can then be determined in accordance with law and in an orderly manner.”

One of the latest eases dealing with this question and one to which frequent reference is made, is that of Wiggins v. United States, 272 Fed. 41, wherein the court states that:

“It is established law that collateral inquiry in the mode in which evidence has been obtained, will not be allowed when the question is raised for the first time at the trial. ’ ’

We feel that the previous attitude of this court is the correct one, and should and will be followed in deciding this question in the present case.

As to the second proposition to-wit: Did the burden of proving that the possession of the liquors seized was unlawful rest upon the state or was it a matter of defense? We find, in view of the authorities hereinafter cited, that it was strictly a matter of defense, and that the burden' of alleging or proving the same did not rest upon the state.

This is by far the most important question raised in this case, and because of this, we are taking advantage of this occasion to set forth fully the general prohibitory provision of the Crabbe act as found in the first sentence of Sec. 6212-15, G. C. which reads as follows:

“No person shall, after the passage of this act, manufacture, sell, barter, transport, import, export, deliver, furnish, receive, give away, prescribe, possess, solicit or advertise any intoxicating liquors, except as authorized in this act.”

From the above section it is clear that it was the intention of the legislature to outlaw the liquor traffic, except in certain instances wherein a privilege or a permit is granted. The only exceptions contained in the act are as follows:

“Liquor and liquor preparations and compounds for non-beverage purposes, and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished, received, given away, possessed, prescribed, solicited, and advertised, but only in accordance with the above provisions of Title 2 of the act of Congress known as the ‘National Prohibition act passed October 28, 1319.’ ”

and paragraph 2 of Sec. 2 of the same act, reading as follows:

“The term ‘given away’ and the term ‘possess’ shall not apply to intoxicating liquor in a bona fide private dwelling.”

It is clearly evident that, if the defendant lawfully had possession of intoxicating liquor, it must have been held under one of the preceding exceptions specified in the act. There is nothing contained in the evidence in this case that could by the wildest stretch of the imagination justify one in believing that the rye whiskey seized was possessed for non-beverage or sacramental purposes, and therefore, if it was lawful, it could be only by virtue of being possessed in a bona fide private residence as defined by the laws of Ohio.

There are two provisions of the Ohio code which go towards defining what premises may be regarded as a bona fide private residence. The first is contained in Sec. 4 of the Crabbe act and reads:

“No search warrant shall issue to search any private dwelling, occupied as such, unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as store, shop, saloon, restaurant, hotel, or boarding house. ’ ’

The above provision was for approximately one year the only definition of a bona fide private residence in Ohio. It soon became apparent that such definition was defective in that it only took from premises their right to be considered a bona fide private residence when liquor was thereon being sold. The law making possessing, manufacturing, etc., equally a violation of the law was powerless to enforce those provisions of the law because of the strictness of the definition above set forth. After one year’s efforts resulting in a failure to make any substantial headway in enforcing the law against the liquor traffic, the legislature saw fit in the exercise of its prerogatives to further and more correctly define for the enforcement of the prohibition laws, a bona fide private residence, and in the emergency clause of the Miller bill is found ample evidence of the above contention, wherein they say:

££ This act is hereby declared to be an emergency act, necessary for the immediate preservation of the public peace and safety. Such necessity exists because of the reason that flagrant violations of the law prohibiting the liquor traffic prevail in some parts of the state which is encouraging the commission of other crimes, all resulting in the loss of life and property to many citizens.”

In Sec. 7, paragraph 3 of the Miller bill, it is stated that:

“No place shall be regarded as a bona, fide private residence under the laws prohibiting the liquor traffic, wherein liquors are possessed which have been illegally manufactured or obtained. ’ ’

The above section is still law in the state of Ohio, and has been upheld by the courts in every instance wherein it has been invoked.

It is the contention of the defendant in error that if plaintiff in error seeks to show that the liquor seized upon the premises occupied by him, was possessed in a bona fide private residence, it is first necessary that he show that the premises were not used for any business purpose such as store, shop, saloon, restaurant, hotel, or boarding-house; secondly, that the liquor being found upon gaid premises, he must prove that it was lawfully acquired and possessed.

This brings us directly to the question of whether or not it is necessary for the state to allege or prove matter contained in a proviso or exception to a general statute.

This court in the case of Petro v. State, 14 App. 256, speaking through Judge Ingersoll, and construing the same identical provisions of the Crabbe act on which the defendant in error relies spoke as follows:

‘ ‘ The complaint made by defendant in error is to the effect that the affidavit does not contain the negative allegation that the ‘possession’ charged was not in his bona fide private dwelling house, and that therefore no offense was charged.
“The question before the court for decision, then, is: whether it is necessary to set forth the negative averment to the matter of a proviso in a statute in an information or affidavit charging an offense.
“Our conclusion, after reviewing carefully the authorities in the state of Ohio on this proposition, is: that a negative averment to the matter of a proviso in a statute is not requisite in an information, unless the matter of such proviso enters into and becomes a part of the description of the offense, or is a qualification of the language defining or creating it, and that the provision contained in Sec. 2 of the Crabbe law above cited does not enter into and become a part of the description of the offense or qualify the general language defining the offense.
“The language of See. 3, which is the enacting clause of the law as to the offense of ‘possessing/ is general, and makes it an offense for any one to have intoxicating liquor in his possession. Section 2 simply creates an exception to the general provisions of Sec. 3, charging the offense and excepts from the operation of the law the possession of intoxicating liquor by anyone in his own private dwelling-house.”

From the foregoing opinion of this court it is evident that it is not incumbent upon the state to prove that the premises were not a bona fide private residence, but that the burden rests upon the defendant of proving that he comes within the exception or proviso of the statute, and to do this he must prove the premises to be a bona fide private residence as defined by the laws of Ohio.

The court in its review of the authorities in Ohio quotes with approval Hirn v. State, 1 Ohio St. 15; Billingheimer v. State, 32 Ohio St. 435; Hale v. State, 58 Ohio St. 676 [51 N. E. 154] and Brinkman v. Drolesbaugh, 97 Ohio St. 171 [119 N. E. 451].

In the last case above cited defendant in error contends there is ample warrant for the position taken by it, in that part of the decision quoted with approval by this court in reaching its decision, wherein the Supreme Couit says:

“If the acts complained of in this case were within the exception, the defendant’s rights were fully protected by permitting him to set them up in defense. These were matters as to whch he had particular and special knowledge, and no harm can come to him nor to the state by imposing upon him the duty of bringing himself within such exceptions.”

We think that the rule laid down by the Supreme Court in the above cited paragraph applies with full force to the facts of the case now before this court. A search of the defendant’s premises is made. The law prohibits the possession of intoxicating liquors. Liquors are found upon the premises. The defendant claims the benefit of a proviso or exception contained in the law. The burden rests upon him to show that he comes within the proviso or exception. The facts “were matters as to which he had particular and special knowledge, and no harm can come to him nor to the state by imposing upon him the duty of bringing himself within snch exceptions,” and proving that the liquor was not lawfully acquired, if such is the case.

On this point this court in its previous decisions has shown and quoted with approval an unbroken line of decisions from Ohio State, Yols. 1 to 97, holding that where one claims the benefit of a proviso or exception, the burden is on him to prove that he comes within such proviso or exception. In the present ease, the defendant claims the benefit of paragraph 2 of Sec. 2 of the Crabbe act, which this court has held to be such an exception that need not be averred or proven by the state, but should be proven by the defendant.

This court, in its concluding paragraph, and summing up its decision in the Petro case, says:

“In view of the doctrine so clearly laid down by the foregoing authorities, we are of the opinion that it was not necessary for the affidavit on which the arrest was based in the case at bar to contain the negative allegation that the possession of the alcohol by the defendant was not in his private bona, fide dwelling.”

The law in this respect has not changed, and it is still encumbent on the defendant to prove that he comes within the exception provided. The only thing that has changed is the definition of what is a bona, fide private dwelling, and we hold that a change in the definition of a private dwelling does not transfer this duty or burden from the defendant to the state, but that the defendant must prove under the definition as it now exists that the premises were a bona, fide private dwelling. In this case the defendant introduces no evidence whatever, and there is nothing before the court that would tend to bring the defendant within the exception provided in paragraph 2, of Sec, 2, of the Crabbe act.

In passing upon this question, the court of appeals of the fourth district of Ohio in the case of Callahan v. State, after quoting the definition of a bona fide private residence as contained in the Miller act, says:

“The legislature in this sentence undertook to define, for more efficient enforcement of the law, what places should not be considered bona fide private residences. The Miller law takes out of the category of bona fide private residences those places where liquors are possessed which have been illegally obtained. ’ ’

And in the case of State v. Elson, 45 O. C. C. 819; 32 O. C. A. 481, we quote the following:

“It will be observed that the offense defined in said Sec. 6212-15 consists in possessing intoxicating liquors, and when the proof establishes that fact it is all that is required under said statutory provision. If the intoxicating liquor is possessed lawfully, that may be shown as a matter of defense.
“We do not think it necessary to aver in the affidavit that said intoxicating liquor was for beverage purposes for the further reason that the ‘Crabbe act’ simply outlaws intoxicating liquor for beverage purposes, and the force and effect of said act is that one who possesses it is guilty of an offense, unless such possession comes within the exceptions thereto, and which exceptions must be affirmatively established as a defense. ’ ’

In summing up the Ohio law applicable to this case, the following is seen:

The Crabbe act outlaws intoxicating liquors except in certain ways therein specifically exempted from the operation of the law.

Secondly, that if a defendant wishes to avail himself of the exception provided in a statute, he must affirmatively show that he comes within such exception. In this case the defendant is claiming the benefit of an exception contained in paragraph 2 of Sec. 2 of the Crabbe act, and it is the holding of this court that the burden rests on him to show that he comes within said exception, and that to prove that he comes within said exception he must show his premises to be a bona fide private residence within the meaning of that term as defined by the Miller act.

In conclusion, we wish to again emphasize these two things:

First, no demand having been made for the return of the property seized under the search warrant, it was properly admitted in evidence.

Second, that the defendant claims the benefit of an exception in the statute, and that the burden rests on him affirmatively to show that he comes within such exception. To do that in this case he must prove that the premises whereon the liquor was seized were a boma fide private residence under the laws of Ohio, and to do this he must establish the fact that the liquors found in his possession were lawfully obtained.

Both of these questions we feel have been decided in favor of this construction by this court. We feel that the previous finding and decision of this court was correct and sound, and that in accordance therewith, the judgment of the court below is correct, and should be and the same is hereby affirmed.

Vickery and Sullivan, JJ., concur.