author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Swing and Smith, JJ.
    JAMES MOORE v. EDW. S. HERANCOURT ET AL.
    1. Under the previsions of the will of G. M. H., hereinafter set forth, E. S. H., his son, on the death of his father, took a vested interest in the undivided one-tenth part of the real estate belonging tc his father at the time of his death. But it was subject to be divested by the exercise of the power to sell the same, conferred upon the executrix of his will, or on the contingency that said E. O. H. died without leaving any issue of his body surviving him.
    2. The executrix of said will, having exercised the power of sale conferred upon her, as to a part of the real estate so devised, several years before the accruing of the debt of the plaintiff M. against E. S. H., and before the rendition of the judgment thereon, such judgment never became a lien on the part so sold; and though such sale may not have been made for the purpose mentioned in said will, if consented to at the time by E. S. H. (as was done), M., the subsequent creditor, cannot under the allegations of the petition complain thereof.
    3. Such judgment became a lien on the interest of said B. S. H. in the other tracts of land, so devised, but subject to lie divested as before stated.
    4. The interest of said B. S. H. therein is also subject to the advancements which the said executrix was authorized to make to him, but which were made before the rendition of said judgment.
    Appea] from tbe Court of Common Pleas of Hamilton County.
   Smith, J.

This case comes into this court on appeal from tbe judgment and decree of tbe court of common pleas.

Tbe petition of tbe plaintiff, filed November 1,1892, avers that at tbe February term of the Superior Court, of Cincinnati, 1887, he recovered a judgment against the defendant Edward S. Herancourt for $1,698 and costs, which thus became a lien on tlie interest of said defendant in the real estate afterwards described, which judgment is in full force and unsatisfied. That on the thirteenth day of January, 1890, said defendant being the owner of the undivided 1-10 of said real estate, and exceptjfor said property, being unable to pay his debts,with intent to hinder, delay and defraud his creditors, and with intent to prevent the enforcement of the lien of the plaintiff thereon, did convey the said real estate (describing it) to the defendant, Barbara Herancourt, for the colorable consideration of $1,500.00, but without any actual consideration whatever. That said Barbara Herancourt and John Hauck claim some interest in said undivided 1-10 of said real estate, ^and it is prayed that they be required to set up their interest, if any they have; that said conveyance be declared void as against the lieii of the plaintiff, and that the interest óf said E. S. Herancourt in said property may be subjected to the payment of plaintiff’s judgment, and for all other and proper relief.

The first tract described in the petition is a parcel of land on Vine street. There were other parcels of land in or near to the city described therein.

To this petition. E S. and Barbara Herancourt filed a joint answer, denying each and every allegation thereof, and the guardian of John Hauck, insane, filed an answer, averring that Hauck is the owner in fee-simple of the tract first described in the petition, and denying each and every other allegation thereof; and he asks to have his title thereto quieted.

It will be seen from the foregoing abstract of the pleadings, that the issues raised were, whether the plaintiff had recovered a judgment against E. S. Herancourt at February term, 1887, which became a lien on the interest of Heram •court in the lands described, and whether the latter had with the intent stated conveyed his interest therein to Barbara Herancourt, his mother, without consideration; and whether his interest in said land, if he had any interest therein, should be subjected to the payment of the judgment recovered against him.

At the trial in this court the recovery of the judgment was not disputed. It was also admitted by all of the parties, that at the time of his death, George M. Herancourt was the owner in fee-simple of all of the real estate in the petition described, and that he left a will, dated May 24, 1880, which was afterwards duly admitted to probate and record, by which he devises as follows:

Item first: — I hereby give, devise and bequeath to my beloved wife, Barbara Herancourt, all my estate and property of whatever description, real as well as personal, to have and to hold the same and the use and income thereof, for and during her natural life; at the same time give her full authority and power, to sell convey, lease, mortgage or otherwise dispose of any or all real estate and property as she may deem best, and to re-invest the proceeds thereof at her discretion, after the payment of my just debts.

Item second: — Upon the death of my said wife, all my property and estate with any increase or income therefrom is to be divided into ten equal parts, of which the following persons are to receive, have and hold forever, each one part, to-wit: (He here names his nine living children, of whom Edward and George Herancourt are two, and the three children of another child, Christina,each of whom is to take one-third of one-tenth). And it is further provided that in case any of the legatees or devisees herein named shall die without issue of their body, then and in that case I give, devise' and bequeath such interest or share to the remaining legatees or devisees herein named, and such interest or share shall revert to, and vest in the surviving legatees or devisees, the children of Christina to take one-tenth thereof.

By item third he desires his wife to educate his children and provide for them until they are able to support themselves, and should my wife deem it expedient, and be willing during her life-time to make an advancement to any of the devisees or legatees named in this will,she is hereby authorized to do so to an amount not exceeding the distributive share of such devisee or legatee under this will, which advancement with the interest from the time it is made,shall be deducted from the part or share of such devisee or legatee upon the final distribution of the estate. Mrs. Herancourt was appointed executrix of this will without bond, and qualified as such.

It further appears that on the 27th of April, 1885. Mrs. Herancourt executed a deed to John Hauck, thereby by its terms, conveying to him in fee-simple the tract on Vine street, first described in the petition, with the expressed consideration of $30,000.00, and on May 1, 1885, said Hauck executed to Barbara Herancourt a lease on the same premises at an annual rental of $1,000.00, with a privilege of purchasing the same during the term for $20,000.00.

The circumstances surrounding the transaction were these: Mr. Hauck had become the surety for George Herancourt, one of those legatees or devisees, who was a cousin of his, and had paid much more than $20,000.00 on his account. To reimburse him in part, Mrs. Herancourt, with the consent of the defendant E. S. Herancourt, and probably of that of the other parties in interest, had conveyed this and their personal property to Hauck, to save the credit of the family. This was several years before the recovery of the judgment of Moore v. Herancourt, and so far as appears before the debt to him accrued.

It is the claim of the plaintiff that the interest in the. real estate devised by the will of Mr. Herancourt was a vested, interest, and consequently that on the rendition of the judgment in favor of Moore against E. S. Herancourt. it became a lien on all of his interest in the real estate devised to him by his father. We are of the opinion that the interest so devised was a vested interest; but it seems clear to us, that any interest he may have taken in the land "was subject to be divested, either by the exercise of the power to sell said real estate, which was conferred by the will upon Barbara Herancourt, or on the contingency that in the event of the death of any one of the devisees without issue of his body, then his or Ucr share should go to the surviving legatees or devisees. That such was the case in the event that the widow should exercise the power of sale given to her, and that even when a judgment had been recovered against one of the devisees prior to the conveyance by her, that the interest of the devisee would be conveyed free of the judgment lien, we think is held in Smith v. Anderson, 31 Ohio St. 144, and in such case the interest of the devisee would be in the proceeds of the sale. The obtaining of the judgment could in no way interfere with the power of sale conferred.

But how does the case stand as to the tract first described in the petition? Before the debt of plaintiff accrued against E. S. Heraneourt, and three years before the rendition of his judgment, the widow had exercised the power given to her by the will of her husband, and had sold and conveyed it to John Hauck. The judgment then never became a lien on this tract. If that conveyance had been fraudulent or in violation of the terms of the will, we suppose it might have been held invalid in a suit brought by a party in interest to avoid it, or it may be that a creditor of one of the devisees, whose claim then existed, might do so. But if there was no such creditor at that time, and the devisee himself consented to the transaction, 'as was done by E. S. Heraneourt in this .case,who has any right to complain? Certainly not a creditor whose right subsequently accrued.

But in this case no attack is made on the conveyance to Hauck. No allusion is made to it in the petition, and so far as this case stands, Hauck at the time of the rendition of the judgment and till this time is the owner of this first tract. What is complained of is, that some years after the conveyance to Hauck, and after the rendition of the judgment on January 18, 1890, E. S. Heraneourt released all of his interest in this tract and others to his mother, to defraud 'his creditors and to defeat the lien of plaintiff's judgment ■thereon. So far as this claim is concerned, it may be said that at the date of this last conveyance E.S. Herancourt had no interest in the first tract; Hauck was the owner of it,and the plaintiff had no lien upon it. As to Hauck, then, the ■petition should be dismissed.

As to the other tracts, we suppose that the judgment of plaintiff became a lien on whatever interest E. S. Heran-court had in them, and that unless Mrs. Herancourt exer-cised the authority to dispose of them,given by the will, and Herancourt survived his mother, he would have a vested estate therein, subject to be divested, however, on his dying without issue, of his body. And we incline to the opinion that on a creditor’s bill to enforce this judgment any interest which Herancourt might have in the land, could be appropriated to the payment of the judgment.

But in this case there are other matters which have to be -taken into the account. By the will of Mr. Herancourt, his widow was authorized to advance to any of his devisees, an amount ‘"not exceeding the distributive share of such devisee under the will which, with interest from the time it was made,shall be deducted from the part or share of such devisee or legatee upon the final distribution of the estate.” It is shown by the evidence that she did.under this provision, make the following advancements to E. S. Herancourt, viz: $1,500, June 6, 1882; $1,000, May 1, 1885, and $1,600, May 8, 1885, in all $4,100. These sums bear interest from •said dates. These advancements were made long before the •debt to plaintiff accrued, and must with the interest thereon be set off against his share on final distribution. ■ In addition to these sums, there were other advancements made to all of the legatees and devisees, in perhaps equal amounts, as to which we understand there is no controversy here.

How, then, in view of these facts, does this case stand? The widow, Barbara Herancourt, undoubtedly has her life estate in the whole property. Nothing has been done which in any way affects this, and she can not be deprived of it. She still retains the power given to her by the will to sell the whole or any part of the other tracts of land described in the petition, and re-invest the proceeds for the benefit of the trust. The deed of 1890 made to her by E. B. Herancourt, whether fraudulent in fact or in law, as being without consideration, or whether made in good faith and for a sufficient consideration, did not in any way affect the existing lien of the plaintiff on the land, by virtue of the judgment. As we have said, this lien might be rendered inoperative in other ways, as by the exercise of the power of sale by the widow, or by E. S. Herancourt dying without issue cf his body; but it could not be done by a conveyance by Herancourt himself of his contingent vested interest therein, after the lien had attached.

And as we have held, his interest was also subject to any advancement heretofore, made to him, but not as we think to any that may hereafter be made. It is evident, however, that it can not now be known, what the real interest of E. S. Herancourt in the estate of his father is, nor can it be-known until the death of Mrs. Hernacourt and the final settlement of the estate. And even if he survives his mother,and it is then ascertained what his one-tenth would be, deducting advancements, it is wholly uncertain whether he would have more than a life estate therein, for if he should die without issue of his body, the whole of such interest would pass to the surviving legatees or devisees under the will of his father.

We suppose, then, that while it may be within the power' of the court in a case of this kind, to order the sale of whatever interests Herancourt may have in this land, subject to the life estate ,of his mother, her power to sell the same, and to the advancements already made to him, and to the contingency of his having only a life estate therein, yet it would seem a vain and useless tiling to do in this case, as it is not likely that any one would purchase so uncertain an interest. Or we suppose this court might by its decree place the plaintiff, in so far as his judgment is concerned,in the shoes of Herancourt, and by decree provide that on the final settlement of the estate, and the ascertainment of the amount that would be coming to Herancourt,that it should not be paid to him, but that the income thereon for his life be paid to the plaintiff on account of his judgment, and if on his death it appears that Herancourt was the absolute owner of such share, that so much thereof as may be necessary be applied to the satisfaction of such judgment.

Goebel .& Betlhujer. and Jas. Moore, attorneys for plaintiff.

C. H. Phares, for John Hauck.

Gorman & Thompson, for other defendants.

We express this view for the information of counsel, with out knowing the amount of the estate or whether any such-relief would be deemed of any value.


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    (Second Circuit—Franklin County Circuit Court
    Jan. Term, 1895.)
    Before Shearer, Summers and Allread, JJ.
    EICHENLAUB v. NEIL.
    Equity will relieve against a forfeiture of a lease incurred by the breach of a covenant to pay taxes, when the breach was not wilful or the result of gross negligence, and no demand for the payment of the taxes was made by the lessor prior to declaring the forfeiture.
   Summers, J.

On the twelfth day of June, 1875, the defendant, William A. Neil, being the owner in fee-simple of a lot in the city of Columbus, leased the same to John C. English, “in consideration of the sum of one dollar in hand to him paid, and of the rents, covenants and conditions hereinafter reserved and contained, to be paid, kept and performed by said party of the second part, liis heirs, executors, administrators and assigns,” for and during the full term of ninety-nine years, and from the expiration of said term renewable forever.

After providing for the payment of rent in money on the day the same becomes due, without demand made for the same, on said day or at any other time, upon the premises •or elsewhere, and upon default thereof, for a termination of the lease and a right of re-entry at the election of the lessor, the lease contains the following, among other covenants and provisos: ‘'And further that said party of the second part, his heirs, etc., * * * shall and will in addition to the money hereinbefore, reserved as rent for said demised premises, also as parcel of the consideration of this demise and as further rent for the same, at his and their own proper costs and charges bear, pay and discharge when and as the same shall be made and become payable, all such duties, rates, taxes, charges, payments, water rents and assessments of every sort and kind soever, ordinary and extraordinary, general and special, as have been already, or that shall, during the term hereby granted, be levied, assessed, made, imposed, grow_ or become clue and payable upon, out of or for the said demised premises, or any part thereof, or upon said party of the first part, his heirs, executors, administrators or assigns for or in respect of said premises or any part thereof, Tor any purpose, or purposes whatsoever, by virtue of any present or future law or authorized action of the United States of America, the state of Ohio, the city of Columbus, or of any other lawful authority empowered to make, assess, levy or impose any such tax, assessment, charge or payment; and that'said second party, his heirs, etc., * * * shall and will so at all times hereafter well and truly indemnify, and save harmless said party of the first part, his heirs, executors, administrators and assigns, of, from and against any loss, cost, damage and expense which he or any of them may sustain or be put to by reason of any neglect or omission in the due and punctual discharge of the said taxes, charges, duties and assessments or any of them.” “And it is further agreed between said parties that for the better securing the payment of the rents herein reserved and the performance of the covenants herein contained by said second party, his heirs, etc., * * * to be kept and performed, ” the party of the first part shall have a first lien paramount to all others, etc.

“And provided further and these presents and the term hereby created are upon this express condition, that if the said party of the second part, his heirs, etc.,, * * * shall fail in the performance of any or either of the covenants, agreements, conditions or provisions in these presents contained which on the part and behalf of said party of the second part, his heirs, executors, administrators or assigns are hereinabove agreed to be, or that are, or ought to be observed, performed, fulfilled and kept, then and in each and every such case and from thenceforth and at all times thereafter this present indenture and the estate and term hereby granted and every clause, article and thing herein contained on the part of said party of the first part, his heirs, etc., * * * to be performed, fulfilled and kept, shall cease, determine and be utterly void at the option and election of said party of the first part,” without prejudice to any remedies which might be otherwise used by him in collection of arrears .of rent and damage for preceding breach of covenant; and then follows a covenant to deliver peaceable possession, in case the lessor elects to declare the lease forfeited as previously provided, and a provision authorizing re-entry.

The rent to be paid Neil was $1,500 per year for the first ten years, and $2,000 per year thereafter. The lease was assigned to Albert Goldstein in 1886, and he on the 9th day of May. 1890, leased the premises to Eichenlaub for fifteen years at a yearly rental of $3,000 for the first five years, $3,500 per year for the second five, and $4,000 per year for the last five years. Eichenlaub was to pay also all taxes and assesments levied or imposed from said date, excepting the assessments, then made but not yet due and payable, for the improvement of Pearl street in the rear of said premises. Eichenlaub took possession, and it is alleged, expended $20,-000 in erecting large, valuable and permanent buildings on the premises, consisting of store-rooms, theaters, offices and business rooms.

April 4, 1892, Goldsteiu mortgaged, his leasehold to Samuel Frank to secure bis note for $10,000, dated October 29, 1891, which is still unpaid. All taxes and assessments and rents due to Neil were paid up to June 20, 1892; thereafter the taxes and assessments, including those payable June 20, 1892, were not paid, and amounted, with penalties and interest, on the 9th day of January, 1894, to the sum of $2,328.88, and the premises were being advertised for sale at delinquent, tax sale. This casually coming to the notice of Neil, he, on that day, paid that amount to the treasurer.

Goldstein lived in Philadelphia, Pa., and Prank in Baltimore, Md.

Shorty before the 9th of January, Goldstein received a newspaper containing a copy of the delinquent tax list, and went to New York to raise the money among his friends, to pay the taxes.

Shortly after he returned he received a written notice of forfeiture from Neil; he at once communicated with Frank, and they met in Columbus on Monday, January 15, 1894, and tendered to the treasurer the said sum of $2,823.88, and, upon bis refusal, on the same day tendered said amount, with interest, to Neil, who refused to accept it, saying he had elected to forfeit the lease; and thereafter, on the 10th day of February, 1894, said Nefl brought suit in forcible entry and detention against Eichenlaub, to recover possession. And thereupon the plaintiffs, on the 17th day of February, 1894, filed their petition in this action in the court of common pleas, setting up the foregoing facts and tender of rent falling due January 1, 1894, and bringing into court the amounts tendered, and averring their ability, readiness and willingness to pay said amounts to said, Neil, together with any loss, cost or damage, or expense which he may have sustained or been put to, and to abide any order which the court might make in the premises.

They ask for an injunction, and that they may be allowed to redeem. The court of common pleas found that they were entitled to redeem upon paying said amounts and in addition thereto the costs and fees of Neil’s attorneys, and so decreed, and defendant appeals.

In Smith v. Whitbeck et al., 18 Ohio St. 471, it was held: “In order to show a forfeiture of an unexpired term of a leasehold estate, for non-payment of rent, the lessor must prove demand of payment of the lessee when due.”

The claim of forfeiture was regarded as atrict-issinij juris, and the demand was required: 1st. To be of the precise rent due; a penny too much or too little invalidated the demand. 2nd. To be made precisely upon the day when the rent was due and payable by the lease to save the "forfeiture. 3rd. To be at a convenient time before sunset, and this meant immediately preceding sunset, and for a sufficient space of time for counting and paying the money before sunset. 4th. To be made upon the land at the most notorious place. And such demand was required to be made whether or not any one was on the land to make payment.

The rent, in the lease under consideration, was to be paid on the day the same became due, without demand on said day or at any other time, upon the leased premises or elsewhere, and it was expressly provided that in the event any of the rent was not paid on the day it became due and remained unpaid for ninety days thereafter, then the lease should become void at the option of the lessor without any demand made on the day the same became due or at any other time upon said leased premises or elsewhere, and that the lessor should have the right to re-enter.

However, if this lease was forfeited, it was not for the nonpayment of rent, but of taxes and assessments, and the lease, while it provides that it may be, at the option of the lessor, declared void for non-payment of taxes and assessment, or for failure by the lessee in the performance of any of. the covenants, agreements ¡or provisions on his part, does not provide that it may be terminated for such non-payment or failure to perform, without demand.

We do not think the agreement to pay taxes and assessments is made subject to the forfeiture clause for non-payment of rent without demand by the words, ‘ ‘ as further rent. ’ ’

While the taxes are to be paid as rent and as parcel of the-consideration, yet the payment of the taxes and the payment of the money, which together constitute the rent, are provided for in separate and distinct clauses; for default in the-payment of the money the lessor may without demand terminate the lease, but for .failure to pay the taxes the lease-provides that the lessee is to indemnify and save harmless-the lessor from and against any loss, cost, damage and expense which he may sustain, or be put to, by reason of any neglect or omission.

No demand was made by the lessor for the payment of the-taxes and assessments, nor does the lease in the event of their non-payment expressly provide for forfeiture without demand as it does in the matter of rent.

In Jackson v. Harrison, 17 Johnson’s Rep. 66, it was agreed in the lease that the lessor at his option might forfeit the lease for non-payment of rent or taxes, and it was held “that the lessor had no right to re-enter for a breach of the condition, without showing a demand of payment of the-taxes within the period required by law, in order to create a forfeiture. ’ ’

In Garver v. Hannah, 6 Duer, 262, it was held that, where the covenant to pay taxes is broken, no demand is necessary, and the court say that the statement of Van Ness, J., to the contrary in Jackson v. Harrison was mere dictum, and not well considered.

■ In “The Elevator Case” 17 Fed. Rep.' 200, Miller, J., says: "In regard to taxes and rents, the law is well settled, I think, that a demand for the payment thereof is necessary as a condition precedent to the right of entry.”

In Meni v. Rathbone, 21 Ind. 454, it was held: “Where a lease is conditioned that, ‘ if default shall be made in any of the covenants therein contained on the part of the lessee, then such lease shall be deemed forfeited, and it shall be lawful for the lessor to re-enter said premises and remove all persons therefrom,” and one of the covenants on the part of the lessee requires him to pay all taxes assessed against the premises, and he- fails to pay the same, the lessor cannot take advantage of the breach of such covenant to forfeit the lease without first demanding or requesting the lessee to pay such taxes.”

In Byrane v. Rogers, 8 Minn. 247, it was held: “That upon breach of the covenant to pay taxes, the lessor, without any demand, had a right to re-enter. ’ ’ And, after noticing the New York, cases above cited, the judge says: “The covenant is to pay the tax; the right of re-entry accrues by reason of its non-payment and the consequent damage to the landlord of having his property liable to be sold. Should the landlord pay the tax, and then demand of the tenant its reimbursement to him, a refusal on the part of the tenant would give the landlord no right of re-entry, because such a refusal would be no violation of covenant to pay the tax, and covenants,'upon the breach of which forfeitures are claimed, must be strictly construed. A covenant to pay a tax, and a covenant to reimburse another who had paid it, would be very different both in terms and effect. ’ ’

Defendant’s counsel claim not only that demand is unnecessary, but also that “non-payment of taxes is not like non-payment of rent, it puts in jeopardy the estate of ike lessor and equity does not relieve against a forfeiture effected for such -breach.” (Force, J., in Baldwin v. Rees, 8 Amer. Law Rec. 556.)

We do not think there is any substantial reason why demand for payment of taxes should not be just as essential to a forfeiture as a demand of rent.

The lessor, as well as the lessee, can ascertain the amount, and it would not be necessary, as suggested in the Minnesota case, that the lessor pay the taxes and then demand reimbursement; he could demand that the lessee pay the taxes when due, and notify him that in the event they became delinquent he would pay them and declare a forfeiture. Kirby v. Harrison, 2 Ohio St. 327.

The provision for forfeiture in case of non-payment would not relieve the lessor from the necessity of seeing to the payment of taxes. Such provision would not prevent a sale, or, in event of sale, afford him any relief. We think the tendency of courts of law, in cases where a forfeiture is claimed for the non-performance of a condition subsequent or for the non-payment of money, is to hold that a demand for the performance of the condition or for the payment of the money must have been made in order to establish the forfeiture, and that equity in such cases will afford relief unlpss the forfeiture appears to have been wilful.

In Carder v. Comm’rs of Fayette County, 16 Ohio St. 354, the testator had devised his farm to the county, provided the county paid to his widow, yearly, a certain sum of money,and paid all expenses incurred in securing their right and title to the same, and the court hold: ‘‘The failure of the county to pay the costs of probate of the will, or to refund them to the executrix who had caused probate thereof to be made before the county officers knew of its existence, and who had never demanded payment, does not work a forfeiture of the condition that the county should ‘pay all cxpenses of securing its title’ to the land devised.” See also Hogeboom v. Hall, 24 Wend. 146.

A demand being necessary to forfeiture for non-payment of rent, we think it should be also for non-payment of taxes, but we are not satisfied that such is the law. The cases above referred to do not seem to be well considered; the statements are in the nature of dicta; no authorities are cited, and they cannot be held to settle the question; nor do we think it necessary to pass upon it. The plaintiffs filed their petition, asking to be relieved from the forfeiture, and the matter we are to determine is whether they have made out a case entitling them to relief.

“The courts of equity could not relieve a tenant from forfeiture for breach of a covenant to insure. Lord Eldon laid it down that the court would not relieve against breaches of covenants except in cases where payment of money is a complete compensation, and will put the party in the same situation as he would have been if there had been no breach. In this case the landlord could not by any payment of money he put into the same situation, as he was entitled to be under the covenant. This rule having been found to operate very hardly on those few lessees who inadvertently and not wilfully neglected to insure, the legislature stepped in and remedied it, but in the case of such inadvertent neglects only.” Snell’s Principles of Equity, 314.

The same author says: “It seems not quite settled whether equity will (and the better opinion is that equity cannot) relieve against a forfeiture arising from any breach of covenant other than the'breach of covenant to pay rent, unless under very special circumstances. Equity will, however, require the covenantee to be satisfied with a substantial performance on the part of the covenantor, where the nature of the covenant permits of such performance.”

“It was an inflexible doctrine of the ancient common law, that parties must be held to a strict performance of all the stipulations of their valid agreements; that is, unless the agreement was wholly void from its illegality. Whenever, therefore, a contract provided for a penalty or a forfeiture, the full penalty or forfeiture would be enforced by a court of law without the slightest regard to the amount of damages actually sustained by the obligee or promisee from the default The action of equity in such cases affords a most striking illustration of the principle which we are discussing, (i. e. Equity looks to the intent rather than to the form.) It was at first confined to contracts for the payment of some definite sum of money, in which the debtor also bound himself, in case of his default, to pay a larger sum by way of penalty, or that the creditor might become absolute owner of specific property of larger value by way of forfeiture, where the intent was plain that the penalty or forfeiture was added simply as a security for the payment of the real indebtedness. This action of equity with reference to purely money contracts was soon extended to other agreements in which a party undertook to perform some act, to render some service, to transfer some property, to surrender some right, and a penalty or forfeiture was added. The general doctrine was finally settled that, wherever a penalty or forfeiture is inserted merely to secure - tile payment of money, or the performance of some act, or the enjoyment of some right, or benefit, equity regards such payment, performance or enjoyment as the real and principal intent of the instrument, and the penalty or forfeiture as merely an accessory, and will therefore relieve the debtor party from such penalty or forfeiture, when ever the actual damages by the creditor party can" be adequately' compensated. The application of the principle in such cases, and the relief against penalties or forfeitures, must always depend upon the question whether compensation can or cannot be made. If the principal contract is merely for the payment of money, there can be no difficulty; the debtor party will always be relieved from the penalty or forfeiture upon paying the amount due and interest. If the principal contract is for the performance of some other act or undertaking, and its non-performance can be pecuniarily compensated, the amount of such damages will be ascertained, and the debtor will be relieved upon their payment. ” Pomeroy’s Eq. Juris., Secs. 381, 433.

Counsel discuss the questions of surprise, unavoidable accident, conduct on the part of the lessor tending to mislead. These do not lie. at the foundation of the doctrine. Mr. Pomeroy, in a note to the last above section, says: “The doctrine of equitable interference to relieve against penalties and forfeitures has been described and discussed by some writers as a branch of the jurisdiction in cases of accident. In very ancient times, when the powers of the court of chancery were restricted by the language of the royal decree to certain specified heads, as good faith, conscience, fraud, mistake and accident, and it was necessary that every new exercise of power should be referred to some one of these heads, it may have been implied that the jurisdiction over penalties belonged to the head of accident. But it is evident hat this is not the true ' source of the jurisdiction. There can be no pretense of any accident in the execution of agreements containing penalties. The doctrine has a deeper foundation in universal principles of right, as shown in the preceding chapter.”

On the other hand he says, sec. 450: “It is well settled that a court of equity will not,under ordinary circumstances, set aside forfeitures incurred on the breach of many covenants contained in leases, or of stipulations in other agreements, although the compensation for the resulting injury could be ascertained without difficulty; aiid, on the other hand, the relief is often' given, as will appear from subsequent paragraphs, where the agreement secured by the clause of forfeiture is not one expressly and simply for the payment of money.”

Again, sec. 452: “A court of equity will refuse to aid a defaulting party and relieve against a forfeiture if his violation of the contract was the result of gross negligence, or was wilful and persistent.”

“A court of equity has power to relieve a party against forfeiture or penalty incurred by the breach of a condition subsequent, when no wilful neglect on his part is shown, upon the principle that a party having a legal right shall not be perimtted to avail himself of it for the purpose of injustice and oppression.” Noyes v. Anderson, 124 N. Y. 175.

“Equity will relieve against a forfeiture incurred by the breach of a covenant to insure in a lease of real estate.caused by accident or mistake, if no actual damage has been sustained by the lessor.”' Mactier v. Osborn, 140 Mass. 399.

Defendant’s counsel claim relief from the so-called forfeiture can not be granted without doing violence to the contract rights of the defendant. That “the provisions of the lease in regard to forfeiture, determination and re-entry are of the clearest and most stringent character; they are not illegal or againstjpublie policy or good morals, ¶ The property belonged to Mr. Neil. He was under no obligation to let it to Mr. English. He might so limit thebjstate granted and require such terms and conditions as he pleased, and Mr. English might accept it or them, or not, as he pleased. There is no proof that Mr. English was in any wise unable to take care of himself. On the contrary he was in fact a most capable and cautious business man. The presumption is that the rental was reduced because of the severe stipulations in regard to forfeiture, determination and re-entry. By reason of them, the lessor received less rent and» more protection; and there was imposed upon the lessee a less rental and more hazard. To now discard these provisions, is to make the lease less valuable to Mr. Neil, and more valuable to the assignees of Mr. English. It would take from Mr. Neil what lie never agreed to sell, and give to such assignees what Mr. English never bought.’’ That the provisions of the lease are of the most stringent character, we readily admit, but we do not think that to grant relief is to do violence to the contract rights of the defendant. The law, so far as it is applicable, forms a part of the contract, and if the law, under the circumstances of this case, will give relief, then the parties are presumed to have contracted that such relief might be given.

Again, they claim that no demand upon the lessee for the payment of, the taxes and assessments was necessary; that to require a demand for the 'performance of' the covenant to pay taxes and assessments would conflict with the express terms and conditions of the lease; that it would do violence to its terms to construe it as meaning that if the lessee failed to perform his said covenant to pay the taxes and assessments, and the lessor elected for that reason that the estate granted should terminate, such estate' should not, from thenceforth and at all times thereafter, cease, determine and be utterly void, but should from thenceforth and at all times thereafter continue and subsist until the demand for the performance was made; that the very object of the insertion of the words “from thenceforth and at all times thereafter” was to exclude any necessity for a demand or anything else than the failure to perform by the lessee and the election by the lessor. We do not think this was the object. If such had been the intention the parties would have said so, and more naturally would have used the much plainer words used to waive demand for payment of rent. And this being true, it is a sufficient answer to say that, omitting the words “without demand,” their argument applies just as forcibly to the clause providing for the payment of rent, and yet no one will claim that a demand, unless expressly -waived, is not necessary to a forfeiture for non-payment of rent.

We think these provisions in the lease were intended to secure the payment of money. The lease expressly provides “and it is further agreed between said parties that for better securing the payment of the rents herein reserved and the performance of the covenants herein contained, the party of the first part shall have a first lien, ” etc. If the lease had provided that the lessee in the event of the non-payment of taxes on the day they became due, should pay the lessor a sum equal to double the amount of the taxes, it would have been a penalty. When it involves the loss of lands, or any estate or interest therein, it is a forfeiture, And the same test in substance determines the nature of the provision by which the performance of some collateral act is secured. Pomeroy’s Equity Jurisprudence, sec. 436.

Such a construction is consistent with good faith and fair dealing, while the construction contended for by defendant’s counsel can obtain only by assuming that their client had set a trap in which to catch the lessee in the event the rental value of the property was increased so as to make it to his interest to terminate the lease.

“A court of equity regards a penalty or forfeiture as intended to secure the fulfillment of the contract and not to enable one party to profit by the default of the other, or obtain a collateral advantage which -as no part of the main design.” Wh. & T. L. C. in Eg., vol. 2, page 2044; Story on Equity; sec. 1317.

At law the mortgagor forfeited his estate for condition broken until equity engrafted upon it a defeasance. Contracts will be considered as providing for a penalty rather than liquidated damages in order that relief may be granted. Statutes providing for a forfeiture generally provide for notice or an opportunity to redeem. Much stress is laid upon Lessee of McMillan v. Robbins, 5 Ohio, 28. This case, however, seems to be very considerably softened by the case of Estabrook v. Royon, guardian, 52 Ohio St., (33 W. L. B. 115), and section 2852, of the Revised Statutes, now provides for forfeiture only in case the life tenant does not redeem within one year. No case has come under our observation where the courts have refused relief against heavy loss. • It would be much better that a demand should be necessary, that the party should have a locus pocnitentiac, than to hold this unnecessary and then grant relief in every case of hardship.

In Mactier v. Osborn, 146 Mass. 399, where forfeiture had been claimed for failure to insure, the court say, ‘‘it was an occurrence not anticipated by her, and not known to her until after the demandant' entered to enforce a forfeiture. No misconduct or culpable fault can be attributed to her. The lessors» had not in fact been injured by the accident, and can now be put in statu quo. It is against equity and good conscience that the demandant should insist upon a forfeiture of a valuable leasehold estate.”

Applying the foregoing principles, in the light of the cases and authorities cited, to the facts of the case before us, we think the plaintiffs entitled to the relief for which they pray. It was, of course, their duty to see that the taxes and assessments were paid, but there is no evidence that the default was wilful or the result of gross negligence. Frank was taken entirely bj surprise, and Goldstein’s omission was merely an inadvertence. The taxes payable June 20, 1892, and those subsequently becoming payable were not paid, and yet the lessor, .who lives in Columbus, did not discover this until January, 1894. True, it was not his duty to pay, but he had a great interest in seeing that they were paid.

We do not think it was of the essence of the contract that the taxes should be paid on the twentieth days of June and December. The premises could not be sold at tax sale until the 16th of January. On the loth Goldstein tendered them to the treasurer, and on the same day tendered to Mr. Neil the amount he had paid with interest. The rent and taxes since falling due have been tendered, and plaintiffs in their petition say they are ready and willing to pay to the lessor any loss, cost or damage, or expense, which he may have sustained or been put to by reason of any neglect or.omission in the punctual discharge of said taxes and assessments, and that they are ready, able and willing to abide any order which the court may make in the premises.

They have, since learning of the delinquency of the taxes, shown eagerness, promptitude and ability to pay the taxes, assessments,penalties, interest and costs, and we think ought, in equity, tobe permitted to save themselves from the heavy losses they would suffer by a forfeiture of the lease.

The court below decreed that they should be relieved from the forfeiture upon condition that they, paid all accrued and unpaid rents and interest thereon; all taxes, assessments and penalties and interest thereon; all the costs of this suit and of the suit before the justice of the peace, and attorneys fees in the sum of three hundred dollars, to the lessor’s attorneys, and such a decree may be drawn, the .costs on appeal to be paid by Neil, and interest to be computed to the date of decree below.

Powell, Baryar, Marriott, Stillwell and Hijnemaw, for plaintiffs.

Harrison, Olds and Henderson, for defendants!,


author: Swing, J.

text:
    (First Circuit -Hamilton Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Smith and Swing, JJ.
    MARGARET LEYDON v. JOHN MALLOY et al. ANN MANNION v. JOHN MALLOY et al.

      Hnbroyation Doctrine defined. — The doctrine of subrogation is founded in equity and natural Justice. Where one furnishes money to payoff incumbrances on land, and takes an incumbrance therefor, upon the understanding- and belief that he is getting a valid lien upon the property, and it turns out that his lien is defective or of no value, he will be subrogated to the lien which was paid off with his money. But whore a party furnishes the money to pay off the lien, and the transaction shows that there was no intention to take any other ien in its place, the doctrine of subrogation does not apply.

      Power of Bishop to mortgage church property. — Where the Bishop holds the title to land in trust for church purposes, and also has an equitable lien on the property for money loaned to build a church thereon, ho is the owner of the legal title with an equitable ^interest in the property to the extent of the amount loaned by him thereon, and ho may mortgage the property to that extent.
    Appeal from the Common Pleas Court of Hamilton County.
    The two cases above named were consolidated in the court below, and tried as oue case.
    On March 15, 1873, Ann Maria Maher and Eliza Kane, trustees of the Sisters of Mercy, being the owners of a tract of land in Cincinnati “in consideration of the advancement of religion and one dollar in hand paid by John B. Purcell, Archbishop of the Arch Diocese of Cincinnati” conveyed said property “to the said John B. Purcell, Archbishop as aforesaid, his heirs and assigns forever '* * * for the purpose of preserving and maintaining thereon a church of Atonement or Reparation to the Sacred Heart of Jesus. ” The deed contained this recital: “It being understood and agreed by and between said parties, and is one of the considerations upon which this conveyance is made, that the said John B. Purcell, Archbishop as aforesaid, is to assume, pay off, and discharge an indebtedness existing on said building to the amount of $23,000, together with whatever interest may be now clue or hereafter to become due on said amount, subject to which this conveyance is made.”
    The Bisters of Mercy had erected upon said land a stone chapel, and were in debt in the sum of $23,000 for money borrowed to build the same, of which $12,000 had been borrowed from John B. Purecll, and this indebtedness was assumed by the said John B. Purcell. In pursuance of the trust expressed in the deed John B. Purcell established a Catholic congregation in said church, thereafter known as the “Church of the Atonement, ” and held the property in trust for such congregation subject to the repayment to him of the said $23,000. The congregation and the priests successively appointed for the same always recognized and acknowledged the claim of said Purcell against them for said amount and his interest in and lien upon the property until they should repay the same.
    On the 12h day of December, 1878, there was still due to the said Purcell more than $19,000 upon his claim. On that day he executed his promissory note, payable one year after date, for $3,042.38 with six per cent interest per annum, payable to his brother Edward Purcell, and executed a mortgage upon said property to secure the payment of such note. This note and mortgage were executed for the purpose of being transferred to Mrs. Margaret Graf, who was a creditor of said Purcell for the amount mentioned in the note for money loaned him, evidenced by a deposit or pass book. She, on the same clay, surrendered this deposit or pass book, and the said note and mortgage were thereupon endorsed and assigned to her. The mortgage was duly recorded on the 14th day of December, 1878. On December 16, 1878, the said Edward Purcell appealed to Rev. Patrick Cusack, then the pastor of the Church of the Atonement, to assist him and his brother John B. Purcell in their financial troubles, and after several interviews it was agreed between the said Cusack and Edward Purcell acting on behalf of JohnB. Purcell, that the said Cusack would substitute the notes of his congregation for claims against John B. Purcell to the extent of the indebtedness of the congregation to John B. Purcell. Accordingly, between the 17th of December, 1878, and the 3rd of March, 1879, the said Cusack took up claims a’gaiust John B. Purcell, including those of the plaintiffs in those two actions, and substituted therefor notes purporting to be the obligations of the Church of the Atonement signed by him as pastor. The persons taking such notes and surrendering their claims against Purcell were general creditors of the latter without any security, and many of them were members of the Church of the Atonement. No agreement was made at -the time, that these note holders were to be subrogated to the lien or equity of John B. Purcell against the church property. The notes of the congregation thus substiuted for obligations of John B. Purcell amounted to the full amount of the indebtedness of the congregation to the said Purcell, and when -the last note had been substituted on March 3, 1879, Father Cusack received a receipt in full for such indebtedness. During the progress of these negotiations and before the same were closed Father Purcell informed Father Cusack that he thought there was a mortgage upon the property, but no attention was paid to the remark, and Father Cusack did not kuow.of Mrs. Graf’s claim until her note became due, and she presented the same to him. He thereupon admitted the validity of her claim, entered the same upon the books of the church, and from time to time made payments thereon, amounting in all to $416.00.
    From the time the congregation as founded, and up to within a few years of the bringing of this suit, Father Cu-sack and his predecessors and successors from time to time borrowed money from various-persons for the purpose ofimprov•ng the church and school connected therewith,and to pay more pressing claims against the congregation. For such borrowed money the pastor for the time being would give either a pass or deposit book, or a note of the congregation signed by him as pastor. Among such claims is the claim of Michael Schultz for money advanced to the predecessor of Father Cusack and used in the improvement of the church building.
    On October 30,. 1886, Margaret Leydon and Ann Manion each filed petitions against William Henry Elder, as successor of JohnB. Purcell and trustee of the property for the congregation, the pastor and church wardens and Mrs. Margaret Graf praying that their notes be declared the first and best liens on the church property, for a sale of the same and other equitable relief. Mrs. Graf filed answers and cross-petitions in said suits setting up her mortgage, and praying a foreclosure of same and the payment thereof as the first lien. The other holders of notes substituted by Father Cusack between December 17, 1878, and March 3, 1879, for claims against John B. Purcell, had themselves made parties, and set up similar claims to the plaintiffs. Finally Michael Schultz and the other creditors, not holding novation notes, intervened to assert their claims and pray for a payment of the same out of the proceeds of sale of the property. None of the parties to the suit resisted a sale.
   Swing, J.

In our judgment the mortgage of Mrs. Graf is a valid and subsisting lien against the premises in litigation. Archbishop Purcell, at the time he gave the mortgage, was the owner of the legal title coupled with an equitable interest in the land to the extent of over $20,000. This gave him the right to assign or mortgage the property to the extent of his equitable interest. It seems to us that the decision of the Supreme Court in the Mannix case, in which it is held that the assignment to Mannix carried with it the property assigned to the extent of the equitable interest held by Purcell settles this point.

The mortgage being good .at the time given, we are unable to see how it has in any way become invalidated by the acts of its holder. The mortgage was duly recorded, and from that time it became a lien with notice to the world. It has not been paid, and no one has parted with his money through any representations of its holder that it was not a lien. It being conceded that the mortgage is valid as of the •date of record, there is no question but what it is the first lien.

We are further of the opinion that the novation notes involved in this cause are not subrogated to the rights of Archbishop Purcell.

We have gone over this cause a number of times, and have spent a great deal of time in the consideration of this question. The question is not free from doubt, but our judgment is that these notes do not fall within the principle of the law of subrogation. Purcell was the holder of an interest in this property. The holder of these notes held notes against Purcell. Purcell wanted his claim against the property paid. The holders of the notes against Purcell were induced to part with claims against Purcell, and take the notes of the congregation or the person representing this congregation. The transaction, as far as Purcell was concerned, simply amounted to the payment of this claim against the property. He did not intend to keep his claim against the property alive by transferring it to these note holders. As to the note holders we see nothing in the transaction which leads us to think that they thought they were stepping into the shoes of Purcell as to his claims on the property While Purcell held his claim against the property, the claims of these note holders against him were personal merely — they held no claim through him against this property except as they might work it out after personal judgment against him.

The note holders took the notes of the congregation in lieu of their notes against Purcell, and they took these notes with the knowledge and understanding that the claim of Purcell against the congregation was paid in full. Prucell’s claim was not to be kept alive by the transaction, on the contrary it was to be paid These note holders did not seek to get Purcell’s claim against this property, but what they wanted and what they got were the notes of the congregation, through their pastor, discharged of the claim of Purcell. There can be no claim made that these note holders did not get all that they thought they were getting. The doctrine of the law of subrogation is that it is a rule founded 'in equity and natural justice. Its most familiar application is where one furnishes money to pay off incumbrances on land and takes an incumbrance, which later proves defective, the party will then be subrogated to the rights of the valid lien against all but innocent purchasers for value. In such case the party parts with his money upon the understanding and belief that he is getting a valid lien on the property, and not getting it. Equity steps in and says that owing to the mistake the party shall be subrogated to the rights of the valid lien discharged by his money, and but for the belief that he was getting an other valid lien, he would not have parted with his money.

But here no such state of facts exists. While these note holders furnished the money or its equivalent, to discharge the lien of Purcell against this property, the intent c£ the parties, as shown by the transaction, was not only to discharge the lien of Purcell, but there was no intention to take any other lien in its place. The note holders wanted the notes of the congregation discharged from any claim of Purcell, and this they got. There was no error or mistake of fact as to what the parties were doing or getting. The mistake was simply this: that as it now transpires the congregation cannot meet all its obligations, and these note holders are asking that they be given a lien on the land, something which they did not attempt, as we look at it, to get at the time.

JRoellcer & Jelke, for Margaret Leydon, Ann Manion, and other creditors.

Stephens, Lincoln & Smith, for Mrs. Graf and other creditors.

(reo. J. Murray & D. S. Oliver, for Michael Schultz and other creditors.

The case, it seems to us, would be like a person furnishing money to one to payoff an incumbrance, and thus, without seeking or wanting to take a lien on the property discharged, takes the individual note of the party. The law will not subrogate the holder of the note to the rights of the discharged lien. The mistake, if any, is a mistake of judgment, and not of fact; and the law will not relieve as against it.

We find there areno other liens against the property other than the lien of Mrs. 'Graf. Decree accordingly, and cause remanded to court of common pleas for execution..


author: King, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Scribner, Haynes and King.
    POAG et al. v, SHAW et al.
    1. P. purchased of Shaw, a married man, real estate and paid full value therefor, in 1852, and took-a warranty deed in which Shaw’s name appeared as the grantor, but in which Shaw’s wife released all her right, title and. interest “by way of dower or otherwise.” P entered into possession under the deed, and he and his heirs have since held exclusive possession. In 1893 it was first discovered that the title stood in the name of Shaw’s wife. In an action brought by heirs of P. in possession to correct the deed and make it a valid conveyance of the wife’s title; held, that it appearing to have been the intention of all parties to the instrument that the entire title should be conveyed, such correction would be decreed.
    2. An action by a vendee of real property in possession thereof, to correct a mistake in the conveyance under which such vendee entered into possession and under which he claims title, is not barred by the statute of limitations.
   King, J.

(orally.)

The petition in this case was filed March 31, 1893, in the Court of Common Pleas of Lucas county, and after a trial and judgment in that court, was appealed to this court, and has been tried here.

The petition sets forth that in December, 1852, the defendant, Peter H. Shaw, and his wife, Clarissa, agreed with John Poag, the father of the plaintiffs, to sell and convey, by a good and sufficient deed, all of that part of lot No. 1,010, in the Vistula division of Toledo, which lies northeast of a line drawn from a point in the front line of said lot on Summit street, forty-four feet distant from the south corner of said lot, and thence running in-a direct line to a point in the line of said lot on St. Clair street forty-four feet distant from the west corner of said lot, “the premises hereby conveyed being all that part of said lot which lies northeasterly of the said line, ’ ’. at and for the sum of $4,000, to be paid by said John Poag, and that in fulfillment of this agreement, Peter H. Shaw, and his wife, on December 28, 1852, executed and delivered to said Poag their deed, whereby they intended and attempted to convey full and complete title in fee-simple to said lot; and said Poag, supposing that they had done so, paid the consideration. That at the time of said conveyance the title of said property was in Clarissa Shaw, which fact was unknown to Poag, and that, by the mistake of Peter H. Shaw and Clarissa Shaw and of the person who drew up the deed, the name of Clarissa Shaw was omitted in the granting part of the said deed and her name inserted only in the clause wherein she released her right of dower in said premises.

That in 1873, Clarissa Shaw died and left a will, whereby she devised all her property to her husband and to her children, who are the defendants. That the plaintiffs, in January, 1893, discovered for the first time the mistake in said deed and called upon the defendants to correct it, which they have refused to do, except the defendant, Caroline D. Plessner, who executed a deed of her interest therein, and the court is asked to order and decree that the same be corrected.

An answer was filed, in which the execution of the deed as described in the petition is admitted; also the fact that Peter H. Shaw and Clarissa Shaw were husband and wife; that in May, 1873, the said Clarissa Shaw died; that she willed all her property to her husband and children, which are described, and denying all other allegations in the petition.

It appears by the record of the deed in question, that on the 28th day of December, 1852, before Ira L. Clark, a justice of the peace in and for this county, P. H. Shaw, being the Peter H. Shaw named in the petition, and Clarissa Shaw, appeared before the said justice, who certifies that they are grantors in said conveyance, and that they acknowledged this deed to be their voluntary act and deed, and that Clarissa Shaw, wife of said Peter H. Shaw, being by the said justice examined separate and apart from her husband, the contents of the deed being make known and explained to her, declared that she voluntarily signed and sealed and acknowledged the same and was fully satisfied therewith.

The deed in question reads, in the granting clause, that Peter H. Shaw, in consideration of $4,000 in hand paid by John Poag, does give, grant, bargain, sell and confirm unto John Poag the lands and tenements described in the petition. Further, that he, said Peter H. Shaw, is lawfully seized of the above granted premises and hath the right to sell and convey the same, with the appurtenances, to the said grantee; that the same is free from all incumbrances whatsoever; that he will warrant and defend the same, with the appurtenances, to the said grantee, his heirs and assigns, and further contains this clause: “And I, Clarissa, wife of said Peter H. Shaw, for the consideration of $1 to- her in hand paid by the said grantee, doth hereby release and forever quit-claim to the said grantee all her right and title andjn. terest in and to the said described premises by the way of dower and otherwise. In testimony, we have hereunto set our hands and seals this 28th day of December, A. D. 1852.

“Peter H. Shaw,

“Clarissa Shaw.”

In addition to the facts appearing upon the face of this record, it may be stated, on the testimony of Robert Bell, that on the evening of the 27th day of December, 1852, Mr. Bell, in company with John Poag, went to the residence of Peter H. Shaw in Toledo, in a carriage. That Mr. Bell alighted from the carriage in front of the entrance to the residence of ■ Mr. Shaw, rang the bell — or knocked- — and found that Mr. Shaw had retired forThepiight; but being awakened, he came to the front window over the door, raised the window, and inquired what was wanted. '!. He was told that Mr. Poag was in a carriage at the door and Alesired to see him on business-. The witness testifies that there was some conversation between Mr. Shaw and a woman — as appeared by the voice — in the room upstairs, but who the woman was he did not know. A few minutes elapsed and Mr. Shaw came down and came to the curb-stone in front of the house, and at that time Mr. Shaw entered into a contract with Poag to sell this particular piece of land, Mr. Shaw saying that he did not want to sell it, buHie'was involved as indorser for sundry people, and was_ going to have to pay some of these debts and he was forced to raise some money, and therefore he desired to get rid of the property, which according to the evidence, was not then improved. Mr. Poag offered him $4,000; $3,000 in cash, and the balance to be secured by a mortgage on the premises, and placed in two notes due in one and two years from the date thereof. This was satisfactory, and Mr. Shaw agreed to have conveyance made the next day, either by Morrison R. Waite, or that he would submit it to Mr. Waite, who was Mr. Poag’s attorney; and Mr. Poag informed him that if they were satisfactory to Mr. Waite, the money would be obtained of Mr. Bell, who would act for him in that respect, as Mr. Poag resided in the city of New York. The following day, as appears by the deed, it was executed by Mr. Shaw and wife. Some days later, and in the city of New York, Mr. Poag- and his wife executed a mortgage to Peter H. Shaw upon these premises, securing the payment of the $1,000 deferred payments placed iii two notes, which were payable to Peter H. Shaw. The mortgage record shows that the last of these was paid on December 29, 1854, by a receipt signed by Peter H. Shaw, and a direction to the recorder to cancel the mortgage of record, which was done.

Certain other facts are shown by the record of deeds: That July 13, 1839, Benjamin F. Stickney and wife conveyed to Peter H. Shaw, for $2,840, the whole of lot No. 1,010; that October 28, 1839, Peter H. Shaw and wife, Clarissa, conveyed to Erastus Wilkinson the whole of lot No. 1010 as well as a part of lots 615 and 616, being two-thirds thereof, for the expressed consideration of $8,200,the grantee named being a brother of Clarissa Shaw; that on February 24, 1847, Erastus Wilkinson and his wife conveyed to Isaac Wilkinson, his father, of Nankin, Wayne county, Michigan, for an expressed consideration of $3,900, lot 1019 and a portion of lots 615 and 616, who the same year and for the same expressed consideration, viz: $3,900,convoyed the same premises to Clarissa Shaw, who thereafter retained the title, and has never' — unless by the deed to John Poag — conveyed the same to any one.

These prior conveyances are thus stated that the course of the title of this property previous to the conveyance in question, may be traced, and are not regarded by us as throwing a great deal of light on the transaction, except as to the considerations named in these deeds. If they are entitled to any weight whatever, they would indicate that in 1847, the whole of this lot — which included forty-four feet more of front on Summit street than is included in the deed to. John Poag — and portions of two other lots, situated somewhere else in the city, were conveyed for the consideration of $3,900; and that is distinctly expressed in two deeds bearing date the same year, to-wit, 1847. The evidence in the case further shows that after the purchase by John Poag of this part of lot 1010, which was fifty-six feet in length of front on Summit street, within three or four years thereafter, he erected upon it, or caused to be erected upon it, a building, which is now standing thereon. This was either erected by John Poag himself or by tenants of his under a lease permitting them to erect the same, and is now a part of the property in question; and that ever since the erection of said building John Poag and his heirs have managed and controlled this property, collected and received all the rents and income therefrom; that Mrs. Shaw lived until 1873, and her husband until 1895, about three months before the trial of this case in this court.

The case was tried in the common pleas a year before the death of Mr. Shaw, and he did not appear as a witness to testify in that case, although it appears in evidence that he was able to be upon the street. Whether his mental condition was such as not to permit him to .be a witness, is not clear. There is no evidence in the case that either Mr. Shaw or Mrs. Shaw ever made any expression denying the title of the plaintiffs or their ancestors to this property, or made any expression claiming a title to it themselves.

Is this evidence sufficient to authorize the court to say that there was a mistake in this deed' — -that it was the intention of Clarissa Shaw to convey her title and not release her dower, and that the deed should be corrected to conform to that intention ?

If the title to this property stood, as it.did stand, in Clarissa Shaw, she had no dower interest, and could not release any. The husband could, however, convey his right and interest, which, under the law of Ohio, was a tenancy by the curtesy, but, under the statutes of Ohio then in force, he could only convey that in the manner prescribed by the existing statute, which may be found in S. & C., page 416* but which required that the same should be signed, sealed and acknowledged as therein prescribed.

This deed does nor purport to convey the courtesy estate of the husband, but is made in the form, and would be a sufficient and proper conveyance of the property if the title stood in him.

By the act of February 28, 1846, all conveyances of the husband’s interest in the real estate of his wife are void during the life of the wife and the life of the heirs of her body, unless an instrument for the conveyance of such real estate is executed, attested and acknowledged according to the laws of Ohio for the conveyance and incumbrance of the estate of the wife, which latter is the one previously cited, and under that statute it was held, that an attempt of the husband to lease his wife’s property by mere lease from year to year, was invalid unless executed as prescribed by the laws of Ohio and in accordance with the provisions of the statute.

The act remained in force until April, 1861, when it was repealed by the act found in .vol. 58, page 54, Ohio Laws, which provided as follows:

“Any estate or interest, legal or equitable, in real property belonging to any woman at her marriage, or which may have come to her during coverture by conveyance, gift, devise, or inheritance, or by purchase with her separate money or means, shall, together with all rents and issues thereof, be and remain her separate property, and under her sole control; aand she may in her own name during coverture, lease the same for any period not exceeding three years. This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease; but during the life of such wife, or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or encumbered by him, unless she shall join therein with him in the manner prescribed by law in regard to her own estate.”

Under the act of 1846, it was held that an attempt of the husband to lease his wife’s real estate would be invalid unless it were executed as provided under said statute, so that it seems clear that this deed was invalid to convey any interest in this property in the way that the property at that time stood. It did not convey her dower interest, because she had none; it did not convey the husband’s curtesy, because it was not executed, attested and acknowledged in accordance with the statute relating to this subject,' and hence, in fact, conveyed no title..

But the parties intended to convey something. That seems clear. John Poag paid what the proof shows was the full value of this property — $4,000. It is said by the witnesses that the price was regarded as a good price. He received a convyanece so written as to be wholly inoperative in conveying any interest in the property whatever.

The statute under which this action is brought is section 5872, originally adopted in 1857, and the authority for which is contained in section 28, article 2, of the constitution of the state of Ohio, adopted in 1852:

“The courts of common pleas and superior courts may correct, amend, and relieve against,any errors, defects or mistakes occurring in the deed or other conveyance of a husband and wife, executed and intended to convey or incumber the lands or estate of the wife, or her right of dower in the lands of her husband, in the same manner and to the same extent as such courts are or may be authorized or empowered to correct errors, mistakes or defects in the deeds or conveyances of any other persons.”

Under this section a number of cases have been decided, the two most important of which are those of Groshorn v. Purcell, 10 Ohio St. 641, and Smith v. Turpin, 20 Ohio St. 478. Referring to these cases, we find the court held that this statute authorizes precisely the relief asked for in the case before us, and in somewhat similar circumstances, to-wit: the execution of a conveyance in which the title to the property stood in the name of the wife, but in which conveyance the name of the husband appeared only in the granting clause, the wife having, as in the case before us, released her dower, and by the word “otherwise,” her further interest in the property, and had signed, attested. and duly acknowledged the instruments.

And the court, in the case of Smith v. Turpin, has, in passing upon the evidence, put little reliance upon the oral testimony, referring principally to that which appears from the deed itself:

“That the husband sold and agreed and intended to convey the entire premises; that he received a full consideration therefor, and that the grantees had been allowed for a long period of time to remain in undisturbed possession.
“These facts themselves go far towards proving that the wife intended more than the release of her dower right in her husband’s moiety of the property. Added to these pregnant facts is to be considered also what appears upon the face of the deed itself, and in connection therewith what appears upon the face of the other deed excuted at the same time.
“In the deed in controversy, sweeping and unmistakable words for the conveyance of the entire premises are used. Is it at all probable in the latter case, that what the parties really meant was to convey to Wiley and wife merely the husband’s fee in the undivided half of the premises free from dower, and the husband’s inchoate estate of curtesy in the wife’s half? Such seems to be the legal effect of the deed; but it seems to us morally certain that such was not the intention of the parties. The truth of the matter evidently is, that the same mistake was made as that relieved against in the case of Goshorn v. Purcell.”

I may say that it seems to us morally certain that the parties, Mr. and Mrs. Shaw, did not intend that their deed should be void and of no effect, and certainly Mr. Poag did not suppose he was paying his money for a void or ineffectual conveyance. He paid for the whole of the land. The wife, by her signature and acknowledgment, has said that she releases in that land all her interest by way of doioer or otherwise.

By the act of 1801, to which reference is made, the wife could lease her property for a period of not more than three years, and had the right to control the property, and its use, and its rents, and the profits thereof exclusively in her own name without any interference on the part of her husband; these were placed beyond his reach by that act, and yet from 1861 until 1873, the time of her death,- she made no claim to or against it. As said in 36 Ohio St. 54:

“The real question is, did the party intend to convey? If he did, and made a mistake which defeated that intention, it may be cured, whatever its form and character, if justice and equity demands it.”

It is said here that there is some evideuce indicating that this deed was prepared, or examined and inspected, by a distinguished lawyer. The evidence does not make good this claim. It amounts to this, that either Mr. Waite was to draw this deed, or he was to examine it after it was drawn. The evidence shows that it was executed before a justice of the peace, who resided in this city at that time. There is no evidence that Mr. Waite ever saw this conveyance, or, if he did, that it had not been prepared and signed before he saw it. If he saw it and knew the situation of the title, nobody jrould be presumptuous enough to say that he would have allowed his client to receive it.

Would not the court be doing violence to the conclusions which must be drawn from this deed and these facts, to say that these parties did not intend to convey this property ? We think so. We think this case fully as strong as those referred to, and in addition to this, it may be said that a case in the 24th Bulletin, 348, shows the reversal of the circuit court by the Supreme Court, without any official report, in a case where the wife owning and having title to forty acres of land, had signed a mortgage releasing her dower, her husband having given the mortgage to secure his own debt, and the circuit court haing found that she did not intend to mortgage her own land, yet the Supreme Court reversed it.

These seem to us ample authorities for holding that the intention of Peter H. Shaw and Clarissa Shaw was to convey this property to John Poag, and which intention was rendered invalid by the mistake of the person who drew the deed, by omitting the name of Clarissa Shaw from the granting clause of the deed.

It is suggested that this action is barred by the statute of limitations, and an ingenious argument is made, based on the decision in 48 Ohio St. 195. We hardly think it applies to the case before us.

Section 4974 of the Revised Statutes provides that the chapter prescribing the time in which actions shall be commenced, shall not apply, among other cases, “to an action by a vendee of real property, in possession thereof, to obtain a conveyance of it.” Without entering into any argument to show that an action like this comes within that exception, we think, by analogy, it does. This action is by a vendee of real property, in possession thereof, to obtain a correction of the conveyance under which said grantee claims title, and we think it is within that exception.

“It has been said,with regard to the statute of limitations, by the Supreme Court in the case of Ormsby v. Longworth, 11 Ohio St. 668:

“And in cases like this, where the correcting of the mistake disturbs no possession, and interferes with no investment in the way of improvements or the like, made on the faith of the mistaken instrument, we cannot see why, as a matter of principle, the same rule should not apply to cases of mistake. Mistake is as much a secret thing’ as fraud is; and for the party benefited by the fraud or mistake to set up the lapse of time against a case arising from either, until after the discovery of the fraud or mistake, is alike unconscionable in either case. And that the same rule does apply in the one case as in the other, was distinctly held by the English Court of Exchequer, sitting in equity,in Brookshank v. Smith, 2 Young & Collyer’s R. 58. In that case, certain stocks had, by mistake, been transferred by trustees to a party not entitled to them; the time fixed-by the statute of limitations for the commencement of an action at láw in analogous cases, having expired after the mistake, but not after its discovery. And the same doctrine is asserted by Judge Story, 2 Story’s Equity, section 1521a. And, moreover, it must be borne in mind that the plaintiffs have all along been, and still are, in possession, claiming a fee-simple estate of the premises intended to be conveyed by the instrument sought to be corrected. And lapse of time does not operate against the holder of a legal title in possession, filing his bill to extinguish an adversary claim, to the extent that 'it does against a complainant filing ,a bill demanding a surrender of the legal title and possession from the holder of them.”

We do not think that the case in 48 Ohio St. is authority sustaining the argument that this action is barred by the statute of limitations. For myself, I would say that were it not for the holding in that case, I should be of opinion that this would also fall under the other exception of the statute relating to tbe discovery of fraud —that such an action may be brought within four years after the discovery of the fraud; but the Supreme Court seem to have said, very emphatically, in 48 Ohio St., that it only applied to cases of fraud as such, and not to cases of mistake. Our holding and judgment is, therefore, that there should be a decree in this case upon for the plaintiffs, for and in accordance with the prayer of that petition; that this deed be corrected to conform to the intention of the parties as -set forth in the petition, and that the plaintiffs recover of the defendant their costs.

E. T. Waite and J. H. Tucker, for plaintiffs.

Jas. M. Brown & Son, for defendants.