author: Nobris, J:

text:
    (Third Circuit — Allen Co., O., Circuit Court
    April Term, 1898.)
    Before Day, Price and Norris, JJ.
    EBENEZER F. DAVIS v. ROBERT LEWIS.

      Attachment — Actual seizure of property necessary—
    (1.) In a proceeding to attach personal property it is contemplated that the officer entrusted with the service of the writ, must by steps known to the statute, actually seize the property against which the writ is directed; and that he must retain it under his control to await the process of the law, by which the attachment may be discharged, for the judgment of the court may be executed against the property.

      Same — Intangible or unaecessible property—

    (2.) If the property sought to be attached, is intangible, or is so situated that it cannot be actually seized, then the steps pointed out by the statute must be taken, which bring it into the hands of the court, or subject it to the court’s order.

      Same — Against non-resident — Garnishee must bring property into court—
    (3.) In attachment proceedings against a non-resident debtor, a failure to require the garnishee to either bring the property into court, or to give undertaking that it be forthcoming upon the court’s order, loses the court both jurisdiction of the property, and authority to proceed to judgment in the case, and discharges the garnishee from liability.
    Same—
    (4.) An order made by a J. P. in an action, "that the garnishee retain the property in his possession, until final disposition of the case; and in event of judgment for plaintiff,that he turn the property over to the constable to whom an order of sale may issue, ” is not in compliance with the method, pointed out by the statute, by aid of which jurisdiction is obtained against a non-resident defendant.

      Statute of limitations — Liability created by statute—

    (5.) An action in the nature of the one at bar,is upon a liability created by statute, in which case the limitation is six years, and not four years,
   Nobris, J:

This case reaches this court by petition in error. Defendant in error Robert Lewis, who was the plaintiff below, filed his petition in the court of common pleas of this county against Ebenezer F. Davis, the plaintiff in error here, in which he claims that in August, 1889, before one of the justices of the' peace of this county, he procured an order of attachment in a case there pending, wherein he was plaintiff and Aultman, Miller & Company was defendant. Such proceedings were had m that case, that Davis was served with notice in garnishment, and answered as garnishee. Lewis obtained a judgment against Aultman,Miller & Company,and Davis was ordered by the justice of peace to turn over certain property consisting of a self-binding reaper and one mower, which the court found he had in his possession, the property of Aultman, Miller & Company, to be sold to satisfy the judgment. This order, it is alleged, Davis refused to obey, and the judgment has never been paid in full. The prayer of the petition is for a judgment against Davis for the amount of the value of the property which had been found to be in his hands as garnishee.

To the amended petition, defendant filed a demurrer which was overruled. Defendant then answered and alleges, that about July, 5, 1889, a copy of the order of attachment in' the case of Lewis v. Aultman, Miller & Company, was served on him; that on that day he had in his possession a self-binder reaping machine and a mower, the property of Aultman, Miller & Company; that this property was of a character and at such a place that it could have been come at and seized by the constable serving the writ; that at said time he told the constable, that he had the property, and that neither the constable, nor the justice of peace, at any time while he had possession of the property, ordered him to retain the property in his possession, and the officer failed to seize or take possession of the same; and that on the 20th of August, 1889,when the justice of peace ordered him to turn over the property, he no longer had it in his possession, and was not able to comply with the order.

He says that on the ninth of September, 1889, in an action pending in the common pleas of this county, commenced by Aultman, Miller & Company, an injunction issued restraining Lewis from enforcing.his judgment; which injunction, on November 12th, 1889, was dissolved and discharged. That this action was commenced on March 15, 1889, and more than four years having elapsed since the dissolution of said injunction and before the commencement of this case, plaintiff’s cause of action against defendant is barred by the statute of limitations; all else in the amended petition defendant denies. Plaintiff avers in his reply, that notice was given to Davis to hold the property .in his possession as garnishee until the final determination of that suit; that Davis did have the property on August 20th, 1889, and that the constable could not get possession of the property when he served Davis, defendant, with notice as garnishee. When this case came on for trial in the court of common pleas of this county, a jury was waived on all issues except that of the value of the property for which it is alleged Davis is liable as garnishee. The other issues presented by the pleadings were submitted to the court upon the pleadings and evidence. The jury gave its verdict as to the value of the property, and the court made its finding in favor of the plaintiff. Defendant’s motion for a new trial was not allowed, and judgment was rendered for the plaintiff. Davis, the defendant below, prosecutes error. The errors complained of are: Error in overruling the demurrer to the amended petition. Error in the admission of evidence over plaintiff in error’s objection, and in the rejection of evidence offered by plaintiff below; and because the decisión and finding and judgment of the court is not sustained by the evidence, and is contrary to the law of the case.

As to the first objection, the overruling of the demurrer to plaintiff’s amended petition, without entering into detail, we are of the opinion that the amended petition states a good cause of action, ’and that there was no error in overruling the demurrer.

It is conceded that Aultman, Miller & Company, at the time the proceedings in the case of Robert Lewis v. Aultman, Miller & Company were had before the justice of peace,was a resident of Allen county, and that the jurisdiction of the justice to take cognizance of the case and go to judgment in it, rested upon the proceedings in attachment and the garnishment of Davis, and upon those proceedings, and by virtue of them, his liability, if liable at all, depends in the case at bar. The proceedings in attachment and garnishment, by aid of which jurisdiction is obtained in an action against a non-resident defendant being entirely statutory, to render the judgment and proceedings valid, the path marked out by the statute must be strictly followed.

The service of a writ of attachment contemplates that the property against which the writ is directed, must be actually seized by the officer entrusted with the service of the writ. That by steps and methods known to the statute, he must take it into his possession and retain the property in his control, to await the process • of the law by which the attachment may be discharged or the judgment of the court may be executed against the property. Where property sought to be taken into the arms of the law by proceedings in attachment is intangible, or if it is so situated that the officer who is commanded to seize it under the writ cannot obtain possession of it, then such steps are taken as fasten the property in the hands of the person who has possession or control of it, to await the judgment in the case, or such person is required to place it in the hands of the court.

The return of the constable,in the case of Lewis v. Aultman, Miller & Company, is that he “could find no personal property to attach, except property claimed to be held by E. F. Davis as agent of defendant.” This return does not show or tend to show that the property Davis then held as agent could not have been seized by the officer; upon the contrary, the disclosure of the garnishee by his answer and the testimony in this case point to the one conclusion, that the property was of such character and was so situated that the officer could have taken it into possession when he served the writ, or at any time after, up to the rendition of judgment.

This being the case, the statute clearly pointed out the manner in which the service must be made in order to clothe the court with jurisdiction to proceed to judgment against the non-resident debtor. And to pursue any other course, and to base a judgment upon any other manner of service than the service that the statute declares necessary to jurisdiction, clearly makes the action of the court of no avail,and its judgment without character or force.

In a proceeding in attachment, where any person has property of defendant in his possession, and the officer cannot get possession of the property, he then leaves with such person, or at his usual place of residence, a copy of the order of attachment, and serves him in like manner with written notice to appear before the justice at the return day of the order to answer under oath all questions put to him touching the property so in his possession.

The garnishee in this case, in obedience to the notice in garnishment, did appear before the justice, and did answer, and did disclose that he had in his possession, of the property of the defendant Aultman,Miller & Company, the reaper and binder and the mower. This being done, it became the .duty of the justice to order the-delivery of the property so in the garnishee’s possession into court; or if he permitted the garnishee to retain possession of the property, the court must require an undertaking from the garnishee that the property would be forthcoming to meet the judgment of the court. Either the one or the other of these steps must be taken when the disclosure is made, in order to retain jurisdiction of the property and to authorize the case to proceed to judgment; and if neither the one nor yet the other is required,no jurisdiction of the property is had, nor is jurisdiction of the cause retained.

If the garnishee fail to appear and answer, or if he fail to bring the property into court if so ordered, or if he fail to give the undertaking if so required, then the plaintiff may proceed against him by action in his own name for the value of the property.

Had this property been of such character, or at such place, that the officer could not get possession and make physical seizure, how stands it with the further procedure in this case, having in mind always that the lines of the statute must be strictly followed.

There was no order to turn the property into court; there was no order made requiring an undertaking that it be forthcoming to abide the judgment of the court. But the garnishee was ordered to retain the property in his possession until the final disposition of the case; and in the event of judgment for plaintiff, to turn it over to the constable, to whom an order of sale might issue in the case.

So that the property was to await a judgment, in the hands of one who had no authority to retain it; to await the event of a suit which could not proceed to judgment unless the property was in the arms of the law by methods which the statute provided.

Gable & Parmenter, for Plaintiff.

Ohler & Hoagland, for Defendant.

By thus failing to either require the property brought into court, or that an undertaking be given that it wquld be forthcoming, the court lost jurisdiction of the property, and the garnishee was discharged from liability.

So that for both reasons, because the property ■ was the subject of physical seizure and could have been taken into the possession of the officer, at the time of the service of the writ, and was not taken; and because, had it not been of such character, jurisdiction ovei it'was lost for want of a proper order in relation to it, this garnishee ought not to be required to respond to plaintiff’s action.

The action in this case is a liability created by statute. It is not in the nature of a forfeiture or a penalty, and six years not having elapsed since the time the alleged cause of action accrued, the statute of limitations does not bar the action.

In the face of the various phases of the case, as the rec, ord discloses them, we find that all of the errors assigned are well taken, except that of overruling the demurrer to the amended petition.

The judgment is therefore reversed, the verdict of the jury set aside at the costs of defendant in error, and upon the controverted facts as they are shown by the record, the court proceeds to render the judgment which the court below should have rendered, in favor of the defendant below.


source: Caselaw Access Project

author: Norris, J.

license: Public Domain

text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1898.)
    Before Day, Price and Norris, JJ.
    SIMMONS HARDWARE CO. v. CHARLES F. STOKES, et al.

      Attachment — Certificate- of stock of non-resident corporation, the property of a non-resident, but deposited with a resident of this state, not subject to jurisdiction of Ohio courts—
    1.) S.,a non-resident of this state, was the owner of shares of capital stock of a corporation which was also anon-resident of this state. The certificate of the stock so owned by S. was in the hands of M., a resident of this state, and within the jurisdiction of its courts. In a proceeding in attachment at the suit of S. H. Co., against S. to subject the stocK of this corporation so owned by S. to the payment of his debt to S. H. Co.,

      Held, that the capital stock of the corporation cannot be attached by levying the writ upon the certificate in the hands of M.
   Norris, J.

The plaintiff is a Missouri corporation with its residence in that state; the defendant, the Stokes Manufacturing Company, is an Illinois corporation with its residence in that state; the defendant, the Union Cycle Manufacturing Company, is a Massachusetts corporation with its residence in Massachusetts; the Charles F. Stokes Manufacturing Company is an Illinois corporation with its residence in that state; the defendant Charles F. Stokes is a resident of the state of Illinois; the defendant C. Helena Miller lives in this county. These facts appear in the petition, which further alleges that in 1895, plaintiff recovered a judgment in the circuit court of Cook county, Illinois,against the Stokes Manufacturing Company; execution issued on this judgment, to the sheriff of Cook county, Illinois, and was returned unsatisfied; the judgment is still in full force, and the Stokes Manufacturing Company has no property whereon to levy.

The Charles F. Stokes Manufacturing Company of Illinois, in 1893, had a capital stock of $100,000, $90,000 of which was owned by Charles F. Stokes, who was president and general manager of the concern. At the same time there existed in Boston, Massachusetts, the defendant the Union Cycle Manufacturing Company, with a capital stock of $30,000. Stokes was president of this concern and owned $10,000 of its stock, which in fact is worth $75,000. The certificate for this stock was issued in the name of Charles F. Stokes and one Philip Goetz as trustees for the Charles F. Stokes Manufacturing Company. In 1893, the Stokes Manufacturing Company was organized and became the owner of the assets of the Charles F. Stokes Manufacturing Company, including this $10,000 of Cycle Company stock, and assumed its debts, and the Stokes Manufacturing Company ceased to exist. Charles F. Stokes was president and general manager of the Charles F, Stokes Manufacturing Company; this company ceased to do business in 1894.

Charles A. Stokes is the son of Charles F. Stokes, and a large part of the stock of the Charles F. Stokes Manufacturing Company stood in his name, and he was its vice-president.

In 1893, when the Stokes Manufacturing Company owed the Cycle Company, Charles F. Stokes took up this indebtedness and executed his notes therefor. The Cycle stock was given to the Cycle Company as security for the notes of Stokes, a new certificate of stock was issued to Walter Measure and J. Mott Smith as trustees for the Cycle Company, and the stock was transferred on the books of the Stokes Manufacturing Company, and was withdrawn from the books of said company as an asset of said corporation, but plaintiff says in fact said Cycle stock is still the property of the Stokes Manufacturing Company, and liable for the payment of its debts.

Plaintiff further says that the Stokes Manufacturing Company paid the notes of Stokes held by the Cycle Company,except about $4,000,and that Measure and Smith sold the Cycle stock so held as collateral to satisfy this balance. The stock was bought by one William Wallace, who paid this balance of $4,000, and this stock of the Cycle Company,worth $75,000,was issued to him. Plaintiff says that Wallace was acting for the Stokes Manufacturing Company in this transaction, or for Charles F. Stokes, and that the money paid by Wallace to obtain this stock was furnished to him by the Stokes Manufacturing Company, and all this was done to defraud the creditors of the Stokes Manufacturing Company.

Wallace assigned this stock to C. Helena Miller, the sister of Charles F. Stokes, who took it without consideration, and is not an innocent purchaser, and that said stock is in her hands subject to the indebtedness of the Stokes Manufacturing Company.

In 1894, all the assets of the Stokes Manufacturing Company were transferred by Charles F. Stokes to the Cycle Manufacturing Company, and Charles A. Stokes, who had charge of the Stokes Manufacturing Company, transferred to himself all the Denver assets of that concern, and all this without any resolution of the board of directors.

Plaintiff charges that alK these transactions were done with intent to delay and hinder and defraud the creditors of the Stokes Manufacturing Company, particularly the plaintiff, and plaintiff asks to subject this Cycle stock, now in the hands of C. Helena Miller, to the payment of its claim against the Stokes Manufacturing Company.

An attachment appears to have issued in this case, and a temporary injunction was allowed restraining the transfer of the Cycle stock certificate by C. Helena Miller, and thereupon,upon the motion of C. Helena Miller, this attachment was discharged and the temporary injunction was dissolved. A demurrer was filed to this petition by C. Helena Miller upon the ground:

First. That the petition does not state facts sufficient to constitute a cause of action.

Second. That the court has no jurisdiction of the subject matter of this action.

The common pleas sustained this demurrer, and plaintiff not desiring to plead farther, the court gave judgment on the demurrer and dismissed the petition, and adjudged the costs against the plaintiff. From this judgment of the common pleas court the plaintiff takes appeal, and the case is heard in this court upon the same demurrer. The demurrer, of course, admits the well averred facts asserted in the petition. The allegations of fraud and conspiracy to defraud and to delay and hinder plaintiff in the collection of this judgment are sufficiently stated to constitute a cause of action, so that as against the first ground of the demurrer the petition is sufficient.

The Stokes Manufacturing Company, the judgment debt- or, against whom this judgment is sought to be enforced by action, is not a resident of this state, and not a party to this suit.

The Union Cycle Manufacturing Company, whose shares of stock are sought to be subjected' to the judgment, is a resident of Massachusetts, and not a party to this suit. None of the parties mentioned in the petition except the defendant C, Helena Miller are served with process or otherwise brought before the court. The only parties in court are plaintiff and defendant C. Helena Miller, who is the bolder of the .certificate evidencing the shares sought to be reached by this judgment creditor; so the question narrows down to the single proposition as to whether or not the shares of this Massachusetts corporation, property which it is alleged the corporation holds in trust for the judgment debtor, can be reached bv this action, In other words,has the court acquired, or can the court by these proceedings acquire jurisdiction of the subject matter of this action by any of the methods of constructive service, or otherwise, known to the law of this state as means by which its courts acquire jurisdiction of a controversy; and in determining this we are met squarely by this question: What relation does a certificate of stock in a corporation bear to the property of the corporation by which it is issued ? For the case at bar is an action in character brought to subject property in this state, owned by a non-resident of the state, to the payment of the debts of the non-resident; the jurisdiction depending upon the situs of the property. There can be no doubt that the interest of a non-resident in a corporation situated in this state may be the subject of attachment, and the stock is said to be taken in attachment when the notice in garnishment is served on the corporation. In that case the interest of the non-resident debtor which is held in trust by the corporation, has its situs in this state.

It is equally true that certificates of stock are the subject of pledge, and may be held as security for a debt, and such pledge,in the absence of fraud, takes precedence to an after-acquired attachment lien; but it appears that the measures taken to effect such pledge must be more than,a mere deposit of the certificate of stock, and in the instance referred to, which may be found in the case of Norton against Norton, 43 Ohio St., 509, the pledge carried with it the absolute power of sale and transfer upon the books of the corporation; substantially, as between the pledgee and the pledgor, and as between the p!edgee and the corporation, transferring to the pledgee the legal title to the pledgor’s interest in the property of the corporation, only awaiting the act of the pledgee to make perfect by entry of transfer upon the books of the corporation. The contract of pledge in this case went farther than a mere holding of the certificates, but touched the property itself of which the certificates were the vouchers. A certificate of stock, issued by a corporation to one who owns an interest in the property of the corporation and which the corporation holds in trust for him,is not deemed by the law to be a negotiable instrument; it is not a promise to pay which imports value; it is not a bond of the corporation; it is not a promise by the corporation to do anything; it is not an essential to corporate existence. A man may own an interest in corporation property as a shareholder; he may vote as a member; he may transfer his stock without a certificate; his interest in its assets and his liability for its debts do not appear to depend upon his possession of a certificate; all this has been often declared by the courts. The books of the corporation indicate the extent of a shareholder’s interest in tne property of the company; the certificate is not the title; the title exists without the certificate, and independent of it, and the courts do not appear to consider it a necessary evidence of title to the property, and when deposited and held in pledge, it carries with it nothing unless coupled with an absolute power of legal sale and transfer of the stock of which the certificate in the shadow. It cannot be doubted that the situs of the property of a corporation, that which it holds in trust for its shareholders, is the place where the corporation is incorporated and located — the home of the corporation. In a proceeding as the one at bar,being directed against the property itself, the court can only acquire the jurisdiction by taking into its arms the res — the thing of which it seeks to make disposition This cannot be done when the undisputed situs of the property itself is 'in another jurisdiction and in another state. The very fact that the stock of an owner can be fastened by garnishment upon the corporation, is an acknowledgment that the shares are deemed to be in possession of the corporation 'itself, no matter where the certificate may be.

The courts have held broadly and often that the capital stock itself cannot be attached by levying the attachment on the certificate, any more than lands, says the supreme court of Pennsylvania, “lying in another state can be attached by levying the writ upon the title deed.’’ So that, if a certificate of stock in the hands of one who has a right to it is not subject to attachment because it is distinct from the capital stock of the company, and is only looked upon as a convenient voucher, how much less might it represent in the hands of one who has no interest either legal or equitable in the property of the corporation, as is the alleged condition of this defendant, Mrs. Miller, in this, case.

A. D. Fuller, for Plaintiff.

Boss & Kinder, for Defendant.

Looking at the case as I have intimated, we sustain the second ground of demurrer, and dismiss the petition in default of further plea upon plaintiff’s part, at plaintiff’s cost, and enter judgment of dismissal.

It is with some reluctance that Judge Price concurs in his opinion.


author: Norris, J,

text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1898.)
    Before Day, Price and Norris, JJ.
    LEWIS LANNING, ADM’R. v. WM. FOGLER and MARGARET FOGLER.

      Insolvent husband — Employment by wife — Proceeds of work wife's property, not subject to husband’s debts—
    (1.) The husband, who was a farmer, had failed, and after all his property had responded to his debts, he was still largely in arrears to his creditors. His wife, from her own resources.rented and stocked a farm. This farm was managed by the husband; the wife also gave her personal attention to the business. She paid him by the month the full value of his services, kept with him strict account, and all the money paid out and received for all that was bought and sold was paid and received by her directly or by his hand. He put no money in the business. The family was supported partly out of the proceeds of the farm,and partly from the money paid the husband by the wife. The residue of the proceeds of the business, was invested in real estate in the name of the wife.

      Held, upon an action to subject said real estate to the payment of the husband’s antecedent debts, that the wife can claim the whole of the property, as profits arising from her separate money.
   Norris, J,

This case came into this court on appeal. The petition alleges that James Lanning, plaintiff’s decedent, in his life time, on the 22nd day of December, 1886, by the consideration of the court of common pleas of this county recovered a judgment against the defendant William Fogler, which is unpaid and unreversed and in full force. That Fogler had no personal property, but is the owner of valuable equities in certain real estate and personal property, the legal title of which is in the defendant Margaret Fogler, Fogler’s wife, and he describes the real estate, and says that the personal property consists of teams and stock and tools and farming machinery and implements of the value of about $2,000, and is used on the real estate which consists of a farm in this county.

Plaintiff says that all this property,r*eal and personal, with the exception of a part owned by Margaret Fogler, is the proceeds of the labor and skill of William Fogler, and that he is in fact the owner of a three-fourths’ interest in it, and that the title is kept in the name of Margaret to prevent this plaintiff from subjecting it to the payment of his judgment.

Execution issued upon this judgment, and a levy was made upon the real estate; the plaintiff asks for an accounting,and that the interest of William Fogler may be sold and the proceeds applied to the payment of this debt.

William Fogler answers and admits the recovery of the judgment and that it is unpaid,and that he has no property whereon to levy; he admits that the property is in his wife’s name and unincumbered, He avers that the property belongs to her, and he denies all else in the petition.

Margaret Fogler answers, and in substance makes the same admissions and averments, with the addition that the property was purchased by her, and paid for with her own means, and denying in terms that her husband has title or interest in it of any kind or to any degree,

The plaintiff for his reply denies the allegations of these answers.

These issues, with the evidence, are submitted to this court on appeal.

The testimony in this case shows that twelve or thirteen years ago William Fogler was the owner of a farm,and that up to that time he had succeeded in accumulating an indebtedness which swept away his property, and left him insolvent and largely in arrears to his creditors, one of whom is the plaintiff in this case. After all of his property had been applied upon his liabilities', out of the wreck Mrs. Fogler secured at the hands of the court to which the creditors has resorted, as the value of her interest in the property, as the wife of Fogler, the sum of $600. At this time Mrs. Fogler was the owner of property that she had received from other sources and in which her husband was not interested, to the amount of $500; this property consisted of stock and such other chattels as are necessary on a farm.

After the home place, as they designate the Fogler farm, had been lost, and about eleven years ago, the Falke farm was rented. The evidence shows that this Falke farm, which consisted of 160 acres, was rented by Mrs. Fogler; the first year’s rent of $500 was paid by her out of her own money. While her husband assisted in obtaining this place, yet she appears to have been present, and the bargain was made with her; the place was rented to her, and she paid the rent, and she stocked it with her property brought from the home farm. The Falke farm was operated until about 1898. It appears that while her husband devoted his time and attention to running this farm, Mrs. Fogler also gave her personal attention to the business; nothing vas bought or sold without her consent; she made the bargains, and nothing went off or came on to the place without her consent and knowledge, and she received the pay for that which was sold, either directly or through her husband, and she paid for whatever came on to the farm.

For the time and labor of her husband and for whatever skill he possessed, she paid him during this time $300 per year; she paid him by the month. This went on, and the venture on the Falke farm prospered, and in 1893 she bought the farm sought to be subjected to this j'udgment against her'husband. The evidence shows that she bought this farm, The property she took to the Falke place and the profits of the Falke farm went into the purchase price of this farm. The same arrangement was maintained with the husband in the management of this farm, except that his salary was reduced to $200 per year instead of $300, and he was paid monthly, and so to the commencement of this case. During all this time she held her husband to strict account. Her property was not blended with his; he had none with which to blend it.

It does not appear that the source of her success was the personal services of her husband,or his skill. He had displayed his skill in the loss of the home farm. The only resources of this man and his children — lor it appears they had children, who assisted as best they might in the work at hand — was the estate of this woman, and hers alone.

Fogler may be a fair farm hand, but is evidently not a shining light as a financier and manager. These farms are not property of similar character to the manufacturing business in the Glidden case, in 16 Ohio St.. 509, or like the mill in the Michigan case, 11 Michigan, 470, or like the Provision Company in the New Jersey case,34 Atlantic Reporter 142, where the success depended upon the skill and financial ability of experts in particular branches of trade and commerce, This property was a farm, and while in agricultural pursuits, as in everything, good management and fair prices will keep the wolf from the door, yet there are very few farmers’ wives who don’t know when the work on a farm should be done. Mrs. Fogler knew this, and had the authority to have it done, and she evidently saw that it wa3 done; and the soil, and the rain, and the sunshine did the rest. He helped and she paid him for it, and paid him probably all he was worth. It is true he spent some of his wages in support of the family; this was only what the law compelled him to do wherever he got his money; but she was the head and the front and owner of the business; what she said went, and what she did not want did not go. And while he, with his business under his management, collapsed, she, at the head of her affairs, succeeded; and with an eye to the fact that a real first-class business man or woman, was one who bought a thing for one dollar and sold it for two, and got her money and kept it, she fias accumulated this property which, this plaintiff seeks to subject to the payment of her husband’s debt. We take this view of the case, and find for the defendant Mrs. Fogler, and dismiss plaintiff’s petition at his costs, and remand the case for execution.

A. G. Fuller, for Plaintiff.

Pendleton & Whitley, and John Poe, for Defendant.


text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1898.)
    Before Day, Price and Norris JJ.
    THE STATE OF OHIO on relation of Charles E. Jordan, Prosecuting Attorney of Hancock Co., O., v. SOLOMON FUNK.

      Trustees of gas works public officers—

    (1.) The “Trustees of the gas works” of a city, are officers of a municipal corporation within the meaning of sections 1545-79 and 6976 of the R. S.

      Proceeding prescribed by statute exclusive — Quo warranto—
    (2.) The statute having made provisions (sec. 1732 et seq.) which afford a remedy for violation of sec. 1545-79 and 6976 — on authority of State v. Marlow, 15 Ohio St., 114, and State ex rel. Att’y General v. McClain, 40 W. L. B., 28,, 58 Ohio St., the remedy thus provided is exclusive, and quo warranto will not lie.
   Norris, J.

These cases are on the same line and are submitted together upon demurrers to the petitions; the disposition of one disposes of them all.

The cases are commenced in this court invoking its jurisdiction under sections 447 & 6768 of the Revised Statutes. The petition in case 786 recites that Solomon Funk is now and for more than a year last past has been one of the trustees of the gas works of the city of Findlay, elected, qualified and performing the duties of such public office. That at the same time respondent Funk has been and is a member of the partnership firm of Funk & Plotner, of which firm he is and has been all this time employed as the active manager. That during this time while he was so employed by said firm and acting as said trustee of the gas works, which board has the control and management of the gas department of said city, said gas trustees have made divers and sundry contracts with the firm of Funk & Plotner to' perform work and to furnish material to said gas department, and purchased and paid for said work and material out of the city funds in the possession of and under the control of said gas trustees, and all this with the knowledge and connivance of Solomon Funk and for his benefit as a member of-said firm, and in this manner and by so doing, Funk knowingly acquired an interest in these contracts made between the gas trustees and said firm, wherefore relator says that said Solomon Funk has, as provided in section 1545-79, forfeited his said office and the title thereto, and a judgment of ouster is asked.

To this petition a demurrer is filed in which the grounds are stated:

First. That the petition does not state facts sufficient to constitute a cause of action against the defendant.

Second. That this court has no jurisdiction to hear and determine the cause of action stated in the petition.

Section 1545-79 in substance provides “that no contract for work to be done or material to be supplied to any city or department thereof shall be made with any officer or employee of the city nor with any firm or partnership of which such officer or employe is a member, or by which he is employed in any capacity, and if such officer or employe during his term of-office or employment knowingly acquires an interest in such contract,he shall forfeit his office.”

Section 6976 provides in substance “that an officer of a municipal corporation who is interested directly or indirectly in the profits of any contract, job, work, or service for the corporation during the term for which he was elected or appointed, or for one year thereafter, shall be fined or imprisoned,or both,and shall forfeit his office.”

The official title of the board of which respondent is a member is “Trustee of the Gas Works.” He isa trustee of the gas works of the city of Findlay, Ohio; he was made such and exercises his functions of office under title 12, division 8, chapter 3, of the Revised Statutes.

One of the provisions of that chapter, in section 2491a,is that the provisions of chapter 1, division 8, title 12, so far as applicable, shall to the extent laid down in that section govern all municipalities, their officers and agents, in all cases not otherwise provided for by statute, who exercise authority and act under said chapter 3. Funk is a trustee of the gas works. It is his duty, together with his co-trustees, to manage and conduct said works,so made by statute, He is an officer of the gas works; he is one of the managers of it; he is a trustee of the gas works. The provisions of chapter 1, division 8, title 12, are applicable respecting the investigation of the management of said works and the removal of any officer who manages said works.

Section 2435-56, a part of chapter 1, division 8, title 12, provides for the removal of such officer for misfeasance, malfeasance or nonfeasance in office in the manner provided for the removal of officers by the statutes of Ohio.

There can be no doubt that this defendant Funk, as one of the trustees of the gas works, is an officer of the city of Findlay. So far as form is concerned, there can be no doubt that he is charged as such officer with malfeasance in office, either under section 1545-79,or section 6976,or both, in manner and form that would, if established in a proper proceeding for that purpose,demand his removal from office, and hence the first ground of the demurrer is overruled,

Now, as to the second ground of demurrer, the question at once presents itself, is this the court,and is quo warranto the method by which this respondent is to be ousted from his office and deprived of its honors and emoluments?

The case of The State against Marlow,in 15 Ohio St., 114, sustains the position taken by counsel who urge the demurrer,that inquiry is only made upon complaint of the character of the one at bar in a proceeding in quo warranto where the statute has pointed out no other method. But if the statute has made provisions which afford a remedy, that remedy is exclusive,and quo warranto will not lie.

Sections 1782, 1733, 1735 and 1736 of the Revised Statutes provide that upon a proper complaint filed with the probate judge of the county in which the corporation is situated, charging’that'any officer of the corporation is or has been interested directly or indirectly in the profits of any contract, job, work or service, or that any officer of the corporation has been guilty of malfeasance in office, the probate court shall take jurisdiction and proceed to investigate, or upon demand, the facts shall be submitted to a jury, and if the charges of the complaint are sustained, the court shall make its order removing said officer from office.

It would appear by these provisions that the statute pointed out the method of procedure in a condition presented by the allegations of this petition, and that being so under the law as we find it in the Marlow case, and particularly in the case in our supreme court of The State on relation of the Attorney General against McClain, as announced in- the learned and exhaustive opinion of Justice Williams, published in 40 Weekly Law Bulletin, 28,’ W6 cannot help but conclude that however pious the notion that this defendant should be ousted and removed, relator has sought the wrong forum and the wrong remedy.

Charles E. Jordan, and George H. Phelps,lor Plaintiff;

Boss & Kinder, and W. F. Duncan, for Defendant..

The demurrer to these petitions will therefore upon the second ground of demurrer, be sustained, and the petitions dismissed at the cost of plaintiff, and execution awarded.


author: Laubie, J.

text:
    (Seventh Circuit — Noble Co., O., Circuit Court
    June Term, 1898.)
    Before Laubie and Burrows, JJ.
    (Frazier, J., not sitting. 1
    EMILINE LAW v. GEORGE ALBERT.

      Bastardy — That defendant has become the husband of the complainant pending the suit, is no bar now of itself to its further prosecution by her—
    The defendant in this case answered alleging that since the beginning of this action he and complainant were married and are now husband and wife, A demurrer to the answer was overruled. The complainant, by reply, admitted the marriage, but alleged that the defendant refused to acknowledge that he was the father of the child, and denied that he was its father, and that he had abandoned the mother and child immediately upon marriage and gone to another state.where he now resides. A demurrer to the reply was sustained. The complaint comes >nto this court alleging error in the court below in sustaining the demurrer to the reply and in overruling the demurrer to the answer.
   Laubie, J.

In this case the court below erred in overruling the demurrer to the answer filed by the defendant, and in sustaining the demurrer to the reply, and in dismissing the ease, for the reasons following:

A prosecution for bastardy, after the accused has been bound over to the court of common pleas, cannot, under the provisions of the statute, be comprised by the complainant; and hence she cannot by her act dismiss the case, or cause it to be dismissed.

This case is unlike the case of Miller v. Anderson, 43 Ohio St., 473, (which is directly opposed to, and in which the court did not undertake to overrule, but only to distinguish from, Roth v. Jacobs, 21 Ohio St., 646). In that case the child was born in lawful wedlock, the complainant having married a man other than the defendant, pending the prosecution and before the child was born, he knowing that she was pregnant; and it was held, whether rightly or wrongly is immaterial here, that the child must be conclusively presumed, so far at least as the bastardy act was concerned, to be legitimate,and not a bastard,

Here, the child was born before wedlock, and was a bastard, and the marriage could not legitimize it. It would require, to do that, not only marriage, but an acknowledgment upon the part of the man after the marriage that he was the father of the child.

There was no admission of paternity in the answer of the defendant in this case, and the demurrer to the reply admitted the allegations in it that he not only never admitted, but that he denied that he was the father of the child, and had abandoned both mother and child immediately upon the marriage, and had gone to another state where he still resided.

Not having acknowledged the child as his, the defendant is not bound to support it, although he did marry its mother. It is still a bastard, and the question remains: “who is the father?1’ That must be determined under the provisions of the statute, so far-as the defendant is con-cerned, and in its determination the public is interested, as well as the child and the parties.

A prosecution for bastardy does not abate by the death ¡of the mother, nor because she fails to carry it on. The public, through its proper officers, may take up and carry •on her suit if she fails to do so, or may institute suit if she ■does not. The suit is not for the benefit of the mother, ¡according to the statute, but for the benefit of the child, ¡and to protect the public against the expense of its maintenance. The putative father is charged with the maintenance of the child in a sum to be named by the court, to be paid, it is true, to the mother, if alive, but no personal judgment is to be rendered in favor of the mother against ¡the defendant, as in case of recovery of a debt. Indeed, it is a quasi criminal proceeding, and may be instituted,in the name of the state on relation of the mother.

We know of no legal reason why the marriage should be a bar to‘the further prosecution of this case, nor why the defendant should be relieved from the penalties attached ¡to his offense. It is purely a statutory offense or question, •and if the defendant acknowledges the child to be his, it is ■a plea of guilty under the statute, and he should be adjudged the putative father, and stand charged with its •maintenance, as therein provided. On the other hand, if 'he denies its paternity, the question should be submitted to a jury, as in other cases, as in no other way can he be ■charged with its paternity and support.

That the complainant and defendant are now husband •and wife, has nothing to do with this question, under the "facts of this case and the provisions of the statute. Indeed,in this state a wife may contract with her husband the same as if no relation existed between them; and consequently she may maintain suits against him as if she were ¡a feme sole.- That the defendant has become the husband ■of the complainant, pending the suit, is no bar now, of itself, to its further prosecution by her; and we believe' never was.

John L. Locke, (Cambridge, O.), for Complainant.

McGinnis & Leland, for Defendant.

Reversed and remanded for trial.


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    THE TOLEDO ELECTRIC STREET RAILWAY COMPANY AND THE TOLEDO CONSOLIDATED STREET RAILWAY COMPANY v. EDWARD BATEMAN.

      Apparent conflict between verdict and answers to questions sub-mitted — Presumption in favor of verdict—
    (1) . Where error is prosecuted on account of the trial court having overruled a motion for Judgment on the answer to special interrogatories notwithstanding the general verdict, and where the» evidence is not before the court of error, it will indulge every possible presumption in favor of the general verdict.
    Same—
    (2) . The general verdict must prevail if reconcilable with the answers’ to the special interrogatories upon any state of facts probable under the issues in the case.

      Averment of negligence — Street car collision — What may be-proven—
    (3) . Under an allegation that plaintiff; while a passenger on defendant’s street car, was violently thrown therefrom and injured because of a collision of the car in which plaintiff was riding with' another car, and that such collision was caused by the negligence of defendant’s servants operating such cars, the plaintiff might. - prove that she was thrown from the car before the actual collision of the cars, or that she jumped from the car to escape the' impending^peril of a collision about to occur, and such proof in either case as to the manner in which she was injured would not: amount to a material variance.

      Same — Passenger-injured, in attempt to leave car to escape injury—
    (4) . Therefore, a special finding to the effect that plaintiff had left. the car before the collision and was not upon it at thb moment of the collision, is not irreconcilably repugnant to the general verdict in her favor.
    . Errqr to the Court of^Common Pleas of Lucas county.
   Parker, J.

The action in the court below was brought Iby Edward Bateman, on account of injuries received by his wife through •alleged negligence on the part of The Toledo Electric Street Railway Company and The Toledo Consolidated Street Railway Company, the defendants below.

The part of the petition which charges acts of negligence upon the part of defendants below which are alleged to have been the cause of the injury to the plaintiff’s wife and which -set forth the manner in which she received the injury, reads as follows:

“While said Amanda E. Bateman was such passenger on -such street car, and while said car was being so propelled, managed and run by said defendant The Toledo Electric ^Street Railway Company upon and along said street railroad upon said Ottawa street, and while a street car of the defendant The Toledo Consolidated Street Railway Company, was also being managed and operated by said defendant •upon and along said street railroad upon said Ottawa street, ■by reason of the gross carelessness and negligence of said •defendants and each of them and their agents, servants and •employes respectively, in the running, operating and managing of said street cars, the said car of said defendant The Toledo Electric Street Railway Company, in and upon -which said Amanda E. Bateman was a passenger as aforesaid, was violently run and thrown against the said car ot said defendant The Toledo Consolidated Street Railway Company,which was then upon the same track of said street •railroad with the car of the said defendant The Toledo Electric Street Railway Company, and then and thereby said Amanda E, Bateman was violently thrown from said car (the •car being such car as is known as an open car) to the street, and was greatly shocked and strained, and parts of her right 'leg were severely bruised, etc.”

Separate answers were filed by the defendants, which are ’identical in form, and which deny the acts of negligence •alleged,and charge that the wife of plaintiff below was guilty ■of contributory negligence, but do not set forth particularly any acts cf contributory negligence.

The ease was tried to a jury, which trial resulted in a? verdict for five hundred dollars in favor of the plaintiff below against The Toledo Electric Street Railway Company, (but in favor of The Toledo Consolidated Street Railway Company and against the plaintiff below), upon which verdict judgment was entered.

In addition to the general verdict in favor of the plaintiff below,there were special findings of facts upon interrogatories propounded to the jury. Upon the coming in of these verdicts, a motion was made on behalf of The Toledo Electric Street Railway Company for a judgment in its favor against the plaintiff below upon these special findings of' fact notwithstanding the general verdict.

The special findings of fact were as follows:

“First Question. Was Amanda E, Bateman on the car of The Toledo Electric Street Railway Company atihe time' of the collision between that car and the car of The Toledo Consolidated Street Railway Company?” Answer. “Eo.”
“Second Question. Did Amanda E. Bateman leave the car in which she was a passenger before the collision between' the two cars actually occurred?” Answer. “Yes.”
“Third Question. Which company owned,maintained and operated the trolly-wire which broke?” Answer.. “The Toledo Consolidated Street' Railway Company.” Signed: “George W. Boos, Foreman.”

It is contended on behalf of plaintiffs in error that this special finding is inconsistent with the general verdict upon the issues, and that therefore, under sec. 5202, Revised Statutes, this motion should have been sustained. That section reads as follows:

“When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

This inconsistency, however,must be an irreconcilable inconsistency. The antagonism must be beyond" the power of being removed by any evidence legitimately admissible' under the issues. 3 Amidon et al. v. Gaff et al., 24 Indiana, 128. .

The provisions of the Indiana code under which this and other decisions to which I shall refer relate, are precisely identical with the provisions of our code which I have read, and I call attention to several decisions of the supreme court of that state bearing upon this question.

“Judgment will not be directed against a party in whose favor a general verdict has been rendered, unless the antagonism of answers to special interrogatories’is such that the special findings can not on any hypothesis be reconciled with the general verdict” .

Indianapolis & St., L. R. R. Co. v. Stout, adm’r., 53 Indiana, 143.

“Where the repugnancy between answers to interrogatories and the general verdict is not such that it could not have been removed by evidence legitimately admissible under the issues in the cause, it is not available, * •'*..”

Indianapolis & Vincennes R. R. Co. v. McCafferty, 62 Ind., 552.

On a motion for judgment on the answers to interrogatories, notwithstanding the general verdict, where the evidence is not in the record, the supreme court will indulge every possible presumption in favor of the general verdict. Salander v. Lockwood, 66 Ind., 285.

“A general verdict will not be controlled by answers to interrogatories, if reconcilable therewith upon any supposable state of facts that might be proved under the pleadings and issues in the case.”

Higgins et al. v. Kendall, 73 Ind., 522.

“The general verdict must prevail, if reconcilable with the answers to interrogatories upon any state of facts provable under the issues in the case; what was in fact proven is immaterial.” ' 1 ,

Stevens v. City of Logansport, 76 Ind., 498.

“In considering a motion for judgment on special findinga notwithstanding a general verdict, no reference can be had to the evidence given, but if by any conceivable evidence admissible under the issues, the special findings can be reconciled with the general verdict, the motion should be denied.”

Pittsb’g., Cinti. & St. L.Ry. Co. v. Martin, 82 Ind., 476.

“An inconsistency between a general Verdict and the answers by the jury to special questions of fact, which will justify a verdict upon the latter against the former, must be irreconcilable in view of the pleadings alone, without reference to the evidence.”

Louthain v. Miller, 85 Ind. 161.

“Nothing is presumed in aid of the special finding of facts, but every reasonable presumption is indulged in favor of the general verdict. ”

Lassiter et al. v. Jackman, 88 Ind., 118.

We find no authority, in Ohio or elsewhere, laying down different principles; but the decisions in the cases in Ohio to which we have been cited by counsel for plaintiff in error, are consistent with these rules. The first is, Harsh et al. v. Klepper, 28 Ohio St., 200 (reading from the opinion of Wright, J,):

“This was an action upon a promissory note, dated April 15,1865,at one year, which Harsh had signed as surety for the other makers, John H. Tressell and L. R. Tressell.
“The defense of Harsh was: first, that after he had signed the note and it had been delivered, it was altered in this, that the rate of interest was changed from six to seven .per cent. It was claimed and the jury found that the alteration was made by John H. Tressell, one of the principal makers, with the consent or by the direction of plaintiff, without intent to injure or defraud Harsh, but without his knowledge or consent.
“It is claimed that this is a material alteration, and such as discharges Harsh, the surety.”

The facts recited here were found by the jury specially in answer to interrogatories. I read from page 207:

“The defendant made a motion for judgment non obstante. 'The special verdict of the jury found, in answer to the third ■interrogatory, that the note was altered by one of the principals with the consent or by the direction of the plaintiff, ■and in answer to the fifth, that it was without the consent ■of the surety, Harsh.
“As we understand the law, a material alteration of a note, by a principal, with the consent of the owner and holder, and without the consent of the surety, discharges ■such surety.
“By section 277 of the code (now 5202), when the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.
'“'Upon these findings therefore, the defendant is entitled to judgment.’’

It is not apparent, or even conceivable, that any state of facts could have been shown to nullify the effect of these •special findings, There was no decision upon that point--the case turned upon the single question of the materiality ■of the alteration as affecting the rights of the sureties.

Another case to which we are referred by counsel for ■plaintiff in error, is that of Schaefler v. The City of San-dusky, 33 Ohio St., 246. The only question considered in •that case was as to the effect of the plaintiff’s contributory ■negligence shown by the special findings. The finding •of a genera] verdict to the effect that the plaintiff was without fault, and the express finding of the special verdict up- ■ on the facts, showing that he was guilty of negligence, ■could not be reconciled on any reasonable hypothesis or ■case proven under the issues, so that the latter, viz. the -special findings, controlled.

As to the case at bar: was the plaintiff below confined to ■proof of an injury resulting not only from a collision of the •cars, but from her being thrown from the car in which shp •was riding by the force of the collision, or might she not •show that her injury was due to the negligence charged which resulted in the collision,but happening in some other manner than by being thrown from the ear at the moment of the collision and in consequence thereof? We are of the opinion that the question as to the negligence charged is the gist of the action, and that proof as to the manner in which the injury was received need not have been confined precisely and exactly to the manner stated in the petition;, though if a variance in these allegations as to the manner in which the injury was received was likely to prejudice the plaintiffs in error in their rights, an amendment of the pleádings might have been required. See sec. 5294, Revised Statutes, and the cases of Hogg v. Zanesville Canal & Manfg. Co., 5 Ohio, 410; Hoffman v. Gordon, 15 Ohio St., 211; and note 3 at page 57 of vol. 28 of The Am. & Eng. Encyclopedia of Law. In the latter part of that note this appears:

“In an action by a servant for injuries received through the negligence of the master, the complaint alleged that the-plaintiff left his work to go to a watercloset, and was injured while on the way. The proof shows that he was on his way to his work, but had not at the time begun work, for the day. The variance was considered,immaterial. ”

The citation is to Sayward v. Carlson, 1 Wash., 29. I have looked at the Washington Reports and also at Wash-burn, and have been unable to find the case, and judge-that it is a mis-citation.

The case of Hoffman v. Gordon, already referred to, seems to be in point. The fourth proposition of the syllabus in that case is as follows:

“The petition charged defendant with flooding the plaintiff’s cellar by obstructing the street, and the answer denied the charge. On the trial, evidence, admitted without objection, showed that the flooding was occasioned by defendant’s wrongful opening of the sidewalk, making a channel through which the water was forced into the cellar by obstructions placed in the street. by others. Held: That it was not error for the court, although no amendment of the petition was asked or made, to find upon this evidence for the plaintiff, and to render judgment accordingly. Such., proceeding is m conformity to sections 131, 132 of the-code.”

Judge Welch, at page 217, after quoting this section,, speaks as follows:

“The case is within the spirit and meaning of sections. 131 and 132 of the code.. It is a case of ‘variance’ such as is contemplated in these sections, and not a case of‘failure • of proof’ within the meaning of section 133. The ‘real controversy’ was, whether the defendant had wrongfully caused., the water to flow into the plaintiff’s cellar. The petition • alleges that he bad, and the answer denies the charge. True, the petition avers the means by which this was done-to have been the obstruction of the street by the defendant;: and the evidence shows that it was effected by removing the pavement, and thereby rendering an obstruction of the • street effectual for mischief. Strictly, this was not an obstruction; but without it the actual obstruction would have been harmless. A ‘liberal’ reading of the pleadings, giving to their language its ordinary and popular sense, as the-code seems to require,would be that they intended to putin issue the general fact, of wrongfully causing the water -to ■ flow into the cellar. The parties must have so understood, them; for they came to the trial prepared with proof to that extent, and mutually introduced it without objection from-either. The variation between the pleading and the proof " is merely technical.”

And the court refers with approval to the case of Hogg v. Zanesville C. & M. Co., 5 Ohio, 410, heretofore referred to.

The evidence submitted to the jury is not brought before-us.

If, under the issues, proof could have been made without' .material variance of a state 'of facts authorizing a recovery and reconcilable with the specific finding of facts, we are • bound to presume that such state of facts was established ' -by the evidence, and that the general verdict was founded ' thereon. We must presume,too,in the absence of any show- • ing to the contrary,that this variance in the proof was made-without objection. Hoffman v. Gordon, 15 Ohio St., 211; Speer v. Bishop et al., 24 Ohio St., 598.

Smith & Baker, for Plaintiff in Error.

W. H. Harris, and O. E, Sumner, for Defendant in lError.

“That the pleading was not amended to conform to the .proof, as provided for by sec. 132, will not constitute ground tfor the reversal'of the judgment on error. Sibila v. Bahney, 34 Ohio St., 399; Benninger v. Hess, 41 Ohio St., 64.”

The special findings do not exclude the hypothesis that ■ defendant in error was a passenger on the car of the plaintiff in error at about the time of the accident, and that im.•mediately before such collision she left the car involuntarily ■ by being violently thrown from said car, as alleged in the .petition, in consequence of the sudden checking of the -speed of the car; or the other hypothesis, suggested in ¡argument, that immediately before the actual contact and ■ collision of the cars she jumped to save herself from imminent and impending peril. If the injury was caused in ■either manner, or if there was a combination of these causes, yet the primary and proximate cause may. have been the ¡negligence of the servants of the plaintiff in error in running and operating the car. We think the proof of either state of facts supposed, together with the facts found in the .general verdict and not in any degree inconsistent with the--special findings, would have warranted the general verdict, and that evidence thereof would be admissible under the issues. We refer to Booth on Street Railway Law, sec. 383, and the cases there cited; to the case of Iron R. R. Co. v. Mowery, 36 Ohio St., 418.

For the reasons given, the judgment will be affirmed.


author: Caldwell, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    June Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ. .
    CHARLES A. OLMSTEAD et al. v. MAMIA DOUGLASS.

      Descent — Ancestral and non-ancestralproperty--Secs. 4158 & 4159. JR. S.—

    (1) . In determining whether land owned by one dying intestate descends as ancestral property under section 4158, or as non-ances•tral property under section 4159, the court will be governed by the title under which the intestate held the property at the time of her death.

      Same — Equitable title merges in legal title—
    (2) . Where the intestate in her life-time inherited from her father his entire equitable interest in property, and thereafter acquired the legal title to the same property, her equitable interest or title merges into her legal title, and thereafter her entire interest is under the deed.

      Same — Legal title controls—
    (3) . In determining the title of the intestate at the time of her death, under the statute, the court is to look alone to the legal title, and will not be guided by equitable titles or by equitable principles.
    Same—
    (4) . Where a father puts title to property in the hands of a trustee to hold for him and his heirs, and the father dies' testate willing to his child all his property, the child takes by the will her father’s equity in the property, and when thereafter the trustee deeds the land to the child, the child thereafter holds the property as by purchsae, and the samé will descend to the heirs of the child, under section 4159, Revised Statutes.
    Error to the Court of Common Pleas óf Cuyahoga county.
   Caldwell, J.

This case comes into this court on a petition in error, and the findings of fact and law by the trial court below. The principal facts in the case are these: John Cody in his life time sent three thousand dollars to Ethan Rogers in Cleveland, to be invested for said John Cody. by buying real estate for John Cody in the city of Cleveland. Ethan Rogers purchased the real estate described in the petition of the plaintiff with said money, taking the title thereto in his own name by deed of conveyanee duly executed and delivered, but held said title in trust for the said John Oody. Ethan Rogers in his life time never claimed to have any rights in said property other than as agent or trustee for said John Oody and as the holder of the naked legal title, in trust for the said John Oody and his heirs as such heirs. In the life time of Ethan Rogers and John Oody, after the purchase of said real estate by Ethan Rogers, John Oody dealt with said property as though the legal title stood in him. He mortgaged the property with the assent of Ethan Rogers.

Then Ethan Rogers rented the property, as agent or trustee of the said John Oody, and as such trustee collected the rents thereon, and as such agent and trustee, he paid the taxes thereon, and as such agent and trustee he 'insured the property and made what repairs were necessary, and accounted for the remainder of the rents, over and above such expenses, to John Oody in his life time, and, after his death, to Fannie Oody, the widow of John Oody, until her re-marriage, and then to Fannie C. Oody, John Cody’s •daughter, down to the deed of said Ethan Rogers to Fannie O. Oody. John Cody died testate on the 24th of August, A. D. 1854, leaving Fannie Oody, his widow, and Fannie O. Oody, then an infant, his only issue. At the time of his death John Oody was domiciled in the state of California where his will was admitted to probate. The will provides as follows:

“I give and bequeath to my wife Fannie Oody, all my estate, both real and personal, of which I am now possessed and own,to be used and enjoyed by her during her natural life in case she remains my widow, and immediately after her decease or marriage again I give and devise the same to my daughter Fannie O. Oody and to her heirs and assigns. In case my daughter dies without issue, I then give and devise the same from and immediately to my nephew John O. Sullivan, of Seneca Falls, state of New York.

“And I hereby appoint Ethan Rogers, of Ohio Oity, ■state of Ohio, my executor, and Fannie Oody, my wife, my ■executrix of this my last will and testament. • In testimony ■whereof I have set my hand and seal this 23rd day of August, A. D. 1854.”

John Oody had no other real estate than that described :in the petition, at the time of his death.

On the 8th day of September, 1854, Fannie Oody duly ■elected to take under the will, and not at law. John O’Sullivan had deceased ' unmarried aud without issue before the death of John Oody. Fannie Cody, the wife of .said John Oody, after his death and during the life of said Fannie G. Oody, married one Samuel Williams, by whom .she had as issue, during the life of said Fannie O. Oody, said defendants, Walter W. Williams, and Iola Olmstead, .married to the said Charles A. Olmstead, and no others.

Ethan Rogers, on the marriage of said Fannie Oody, ■was appointed guardian of Fannie O. Cody. After the death of John Oody, Ethan Rogers continued to rent the .property for Fannie Cody his widow, down to the re-marriage of Fannie Oody, and after her marriage as the guardian of Fannie C: Oody, and he paid taxes, insurance, ■collected the rents, made repairs, and wbat remained, of the rents he paid, first, to Fannie Oody, and, after her -marriage to Fannie O. Oody. Ethan Rogers never claimed nor had any title to or possession of said premises, save as agent and trustee of John Oody, and, after his death, of Fannie Cody and, after her re-marriage, of Fannie O. Oody, and Fannie O. Oody obtained the possession of said premises ■ on the re-marriage of sajd Fannie Cody.

Ethan Rogers conveyed said real estate to said Fannie <0. Oody in 1857, his wife joining in the deed; and the deed states that it was made for the consideration of three thousand dollars, being sent to him by John Oody, the father of Fannie O. Oody, the only, daughter and heir of ¡said John Oody, deceased; said money having been sent to him to be invested as said Ethan Rogers should think proper; said amount being received to his full satisfaction of Fannie O. Cody by her father as aforesaid, on the 18th day of August, 1869.

Said Fannie C. Ccdy died a minor, intestate, without issue, unmarried, seized in fee simple of said land, October 18,1896. On the 19th day of January,1893,Fannie Williams died. The defendants, Walter ' W. Williams, Iola Olmstead and Charles A. Olmstead áre the sole heirs at law of Fanny by her second husband Samuel Williams, and have, since the 19th day of January, 1893, been in possession of said premises claiming title thereto as heirs of Fannie.

The plaintiffs in the court below, and the defendants other than Charles A. Olmstead, Iola Olmstead and Walter Williams, are the sole heirs of the said John Cody, or the husbands and wives of sneh heirs, as set forth in the petition, and they claim that upon the death of Fannie C. Cody, Fannie Williams became seized of a life estate in the premises as the mother of Fannie C. Cody and widow of John Cody. That the estate came to Fannie C. Cody from John Cody, her ancestor, and was ancestral property when owned by her, and that the plaintiffs and the defendants other than Charles A. Olmstead, Iola Olmstead and Walter Williams take the property by reason of their blood relation to the deceased Fannie C. Cody and her ancestor, John Cody.

The defendants, Charles A. Olmstead, Iola Olmstead and Walter Williams claim that the title to the property that Fannie C. Cody held at the time.of her death, came to her from Ethan Rogers,, and was not ancestral property, and descends to them by reason of their blood relation to her.

These are the questions presented by the record in this case for determination. The determination of these questions involves the consideration, first, of the statutes governing the descent of property in Ohio. Section 4158 con'trols the descent of property known as ancestral property, ■and reads:

“When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise, or deed of gift from an ancestor, such estate shall descend and pass in parcenary to his or her kindred in the following course:
“First — -To the children of such intestate, or their legal representatives.'
"Second — If there are no children or their legal representatives living, the estate shall pass to and vest in the husband or wife, relict of such intestate, during his or her natural life:
“Third — If such intestate leave no husband or wife relict of himself or herself,or at the death of such relict, the estate shall pass to and vest in the brothers and sisters of the intestate who are of the blood of the ancestor from whom the estate came, or their legal representatives, whether such brothers and sisters be of the whole or half ■of the intestate.
“Fourth — Jf there are no brothers or sisters of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and the estate came by deed of gift from an ancestor who is Jiving, the estate shall descend to such ancestor:
“Fifth — If the ancestor from whom the estate came is deceased, the estate shall pass to and vest in the children of the ancestor from whom the estate came, or their legal representatives; if there are no children of the ancestor from whom the estate came, or their legal representatives, the estate shall pass to and vest in the husband or wife of such ancestor, if a parent of the decedent, during the life of»such relict; and on the death of such husband or wife, or if there is no such husband or wife, the estate shall pass to and vest in the brothers and sisters of such ancestor, or their legal representatives, and for want of such brothers and sisters, or their legal representatives, to the brothers and sisters of the half blood of the intestate, or their legal representatives, though such brothers and sisters are mot of the blood of the ancestor from whom the estate came.
“Sixth — If there are no such half-brothers and sisters of*' the intestate, or their legal representatives, the estate shall1 pass to the next of kin to the intestate of the blood of the ancestor from whom the estate came, or their legal representatives. ”

It is claimed by the kindred of -John Cody, that after* the death of Fannie C. Cody, the wife relict of John Cody during her life, took a life estate, and that subject to the life estate the estate passed to and vested in the brothers- and sisters of John Cody and their legal representatives.

Section 415ft, Revised Statutes, marks the order of descent where the estate came by purchase, and reads:

“If the estate came not by descent, devise or deed of" gift, it shall descend and pass as follows:
“First — To the children of the intestate and their legal-representatives.
“Second- — -If there are no children or their legal representatives, the estate shall pass and be vested in the husband or wife relict of "such intestate.
“Third — If such intestate leave no husband or wife, relict of himself or herself, the estate shall pass to the brothers- and sisters of the intestate of the whole blood, and their* legal representatives.
“Fourth — If there are no brothers or sisters of the intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half' blood, and their legal representatives.
“Fifth — If there are no brothers-or sisters of the intestate of the half blood, or their legal representatives, the-estate shall ascend to the father; if the father is dead, then to the mother.
“Sixth- — -If the father and mother are dead, the estate-shall pass to the next kin, and their legal representatives, to and of the blood of the intestate.”

' The parties to the action, who claim Fannie C._ Cody had title to this property by purchase from Ethan Rogers,, claim that the property vests in them as the brothers-andt sisters of the intestate of the half blood.

In order to determine as to whether this land vests as ¡ancestral or non-ancestral property upon the death*of Fannie C. Cody, it is important to determine, first, what the ¡statute means where it refers to a title that came “by descent, devise, or deed of gift”; whether the word “title” refers exclusively to the legal title, or ^whether it means ■equitable title.

The supreme court have, in several cases, defined the term-“title” as used in these sections of the statute.

In Brower v. Hunt, 18 Ohio St. ,311,the fourth paragraph •of the syllabus reads: “The title to real estate which must have come to an intestate by devise, or deed of gift from an ancestor, to constitute ancestral property, is the title under which the intestate immediately held.”

Fannie C. Cody, prior to receiving the deed from Ethan Rogers, had inherited from her father John Cody all the interest that he had in the property at the time of his death, which is conceded to be the entire equity and possession of the property, and the entire title except the bare legal title that was vested in Ethan Rogers. -After inheriting this from her father, Ethen Rogers conveyed to her the legal title to the same property. If both conveyances to her remained separate and distinct until the time •of her death,then,at that time, she held the property by two separate and distinct titles; but, if the equitable title inherited from her father merged in the legal title that she got from Ethan Rogers, then the title under which she held at the time of her death, would be the title she received from Ethan Rogers.

As to whether or not such merger would take place upon both titles uniting in her (Fannie C. Cody),we will consider hereafter. '

In Patterson v. Lamson, 45 Ohio St., 77, the court say,

‘“In determining whether real estate is ancestral 'or otherwise, the course of descent is to be controlled by the legal-¡title.”

In Stimbul v. Martin (Stone v. Doster), 50 Ohio St., 495, the court held, “The descent of real estate is controlled by the legal title, When the legal and equitable title unite in the same person, the latter is merged in the former, and the whole estate descends according to the-course of the legal title. ” On page 525 the court say, “The legal title draws to it the whole estate, and carries it in the same channel of descent as if the equitable estate bad never existed. ”

In Higgins v. Higgins, 39 Weekly Law Bulletin, 40, decided September 17th, 1897, by the supreme court of' Ohio, the supreme court says: “In determining questions as to whether lands came by .purchase or 'descent,, regard is had to the legal title alone, uninfluenced by considerations of equity.”

These cases settle the law for Ohio, that in determining' the question of ancestral or non-ancestral property, the courts will look to and follow only the legal title, and this holding is in harmony with the holdings generally of other courts.

It becomes important, in the next place, to inquire from whence Fannie O. Oody got the title of which she died seized. It is claimed that she inherited this property-from her father John Cody, and that John Cody, in his = life-time, while he had only an equity in the property, had-a right at any time to call upon Ethan Rogers for a deed-giving him a complete legal title to the property, and that when Ethan Rogers deeded this property to Fannie C. Cody, he did nothing more than to confirm in her a title-which she already held. It is claimed that Ethan Rogers held no estate to convey; he held-nothing but the naked, legal title; all else was vested in Fannie C. Cody before he-gave her the deed of the property, and as a result, all the-interest she ever had in the property, came to her from her father.

The facts found by the trial court do not disclose’the purpose of John Oody in having Ethan Rogers take and retain the legal title to the property.

There seems to have been an understanding between them, and Ethan Rogers most likely conveyed the property at the time he did, for the reason that the purpose of his trust had been fulfilled. John Oody lived in California, Ethan Rogers lived in Cleveland where the property was situated, and he had, while he held the trust, possession of the property with his cestui que trust, and supervision over the property. He performed all acts of looking after the property, and paid the net income of the property to the equitable owner. The facts warrant the conclusion that he had, during his trust, at least a qualified possession of the property. The facts'show that he held the- title in trust; and it is most likely, under the facts, that his control of the property is referable to his trusteeship rather than to his character of a mere agent. It is not usual to transfer to an agent the title of property that he may look after it.

In the absence of facts to the contrary, it will be presumed that the trustee did his duty under the trust, in transferring the title when he did. If this be true, then his cestui que trust could not have compelled him to transfer it earlier.

The facts, then, warrant the conclusion that the owner of the equitable estate did not have the entire and exclusive possession of the property, and that the equitable owner could not at any time have called upon the trustee to convey prior to the time when he did convey.

Those cases, holding that one who owns the entire equity in property, and is in the full possession of the same, with the right at'any time to require the holder of the legal, title to transfer the same to him, is the owner of a low order of legal title, have no application to this case.

John Codv. then, while he lived, after the deed t© Rog, ers, h&d the equitable title to the property, and, after the marriage of Fannie Cody to Williams, Fannie C. Cody was vested with the same equity until Rogers conveyed to her the legal title. Did the equitable merge into the legal title at the time Fannie C. Cody became the owner of both ?

It cannot be urged merger did not take place because there was an intervening estate. It is claimed the • dower of Fannie Cody would prevent Such merger. If it be admitted that dower would prevent merger, which may well be doubted, yet the facts did not show that Fannie Cody had dower in this property. The facts show she took under the will of John Cody, her husband; but they do not show that by the law of California, the state cf their residence at the time of his death, she could both take under his will and have dower in his real property.

No reason appears in this case 'why the equity in the property owned by Fannie O. Cody did not merge into the legal title conveyed to her by Ethan Rogers. The authorities all seem to warrant this conclusion.

Higgins v. Higgins, 39 Law Bulletin, 40; Stone v. Doster, 50 Ohio State 495; Hopkins v. Dumas, 42 New Hampshire 296; Shepard v. Taylor, 15 Rhode Island 204; Selby v. Alston, 3 Vesey, Jr., 339; Goodright v. Wells, Douglas 771; Nicholson v. Halsey, 1 Johnson’s Ch., 417.

The deed recites that it is made in consideration of three thousand dollars given to the grantor, at the time he got the title to the property, by John Cody, This fact cannot modify the character of the title conveyed by Ethan Rogers, nor does it raise the equitable title into a legal title, nor can we see how it in any way modifies the question of merger. It only proves that Ethan Rogers held' the title in trust.

Can it be claimed that the fact that Fannie C. Cody owned the entire equity in the property at the time the deed was given her, and got the legal title by reason of money paid by her father for her benefit in his life-time, .gives her such a full interest in the property that now the • court will consider her entire title as coming to her from her father by devise and deed of gift? Her father never deeded it to her; Ethan Rogers did, and, as the deed recites, for a full consideration from her, paid by her father ■ in his life-time.

The laws of descent are mere arbitrary rules for. the transmission of property, enacted by the legislature, and can not be modified by courts by reason of equitable considerations.

When the statute says, “when a person dies intestate, having title or right to any real estaté or inheritance in this state, which title came to such intestate by descent, devise or deed of gift from an ancestor,” the court is not ■ at liberty to follow into fields of equity or hunt' after equitable titles when there is a legal title the intestate died seized of. That legal title is the only one comprehended by the statute. The source of it to the intestate determines whether the estate is to descend a's ancestral or non-ancestral property.

Higgins v. Higgins, 39 L. B. 40; Patterson v. Lamson, 45 Ohio State 77; Stone v. Doster, 50 Ohio State 495; Hopkinson v. Dumas, 42 New Hampshire 296; Shepard v. Taylor, 15 Rhode Island 204; Selby v. Alston, 3 Vesey, Jr. 339; Goodright v. Wells, Douglas 771; Nicholson v. Halsey, 1 Johnson’s Ch. 417; Armington v. Armington, 28 Ind, 74.

It is claimed that Bond v. Swearingen, 1 Ohio, 395, lays down a different rule „where the equitable estate includes a right to the entire property with a right to demand a transfer of the legal title, coupled with possession, That was an action in ejectment, and in such an action the court, in looking to see who has the legal title, often, if ’not always, gives importance to the equities of the parties. Had the court left out of view all equities of the parties, quite a different conclusion might have been reached. The case impresses one that the doctrine of estoppel led to the court’s holding that the heirs of Massey took the title from the government by descent. This holding was not necessary to reach the conclusion the court did. The court says, had Massey obtained the legal title, it would have inured at once to the benefit of his vendee. And this would be equally true as to his heirs if they received ■ the legal title after the death of Massey. Hence they are estopped from claiming any title to the land such as Massey had conveyed under the covenants of his deed in his lifetime. Later cases show how the court understood their-decision: Allen v. Parish, 3 Ohio, 107-117.

In Douglass v. McCoy, 5 Ohio, 522, the court say of Bond v. Swearingen, in the opinion there expressed, “That Massey after his entry and survey, might dispose of the lands; and when a patent was afterwards issued, either to himself or bis heirs, by which the legal title became perfect, it inured to the benefit of his grantees, so as to make-their title good.’’

To the same point is Avery v. Duffrees, 9 Ohio, 145-148; Jackson v. Williams, 10 Ohio, 69.

In 1 Dembitz on Land Titles, 267, note 159, after citing Patterson v. Lamson, referring to the cases therein cited, is added “ Bond v. Swearingen, 1 Ohio, 395, must be considered overruled.’’

From what I have said it follows, that the title to the land' in question, of which Fanny C. Cody died seized, did not come to her by deed of gift from an ancestor within the meaning of section 4158 of the Revised Statutes, and the land, upon the death of Fanny C. Cody, descended to her heirs Iola Olmstead and Walter Williams in fee simple under section 4159 of the Revised Statutes; and judgment. will be entered reversing the judgment of the common* pleas, and affirming in them the'title to the land.

Boynton & Horr, for Plaintiffs in Erorr.

White, Johnson, MeCaslin & Cannon,lor Defendants in* Error.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jany. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    JOHN B. DOPPES and JOHN W. HERRON and W. HUBBEL FISHER, executors and trustees under the will of Margaret R. Poor, deceased, v. THE CITY OF CINCINNATI et al.

      Street improvement — Property owners petitioning for, bound by their representations in their petition—
    Where the owners of three-fourths of the abutting property sign for improvement of a street, the signers are estopped from resisting the assessment on the ground that they did notown three-fourths-of the “assessable” frontage; and the twenty-five per cent... limitation does not apply.
   Smith, J.

The petition of the plaintiffs avers that Doppes is the owner of lot 177, of Poor’s subdivision, and that Hubbell' and Fisher, as executors and trustees, own lot 225 of said'' subdivision. That about 1889 the Oity, by -its proper-boards and officers improved Powers street in said city from* Van Horn street (now Edgewood avenue) to Sylvan avenue,- and by ordinance duly passed, assessed the cost thereof on* the property abutting thereon, viz., the's.um of $5,016 on-each front foot of such abutting property. That there-was not a petition subscribed by three-fourths in interest of the owners of property abutting on said improvement', between said termini to the proper board for such improvement, and that lot 177, after the improvement was made,, had a fair market value of only $700, and that lot 225 had" a fine market value of only $200, and that Doppes and his-grantor paid on said assessments in 1890, $90.29; and in-1891, $87.28; in 1892, $84.20, and in 1893, $81.26, and that Margaret Poor paid injil892, $84.27. And plaintiffs seek to enjoin the collection of the balance of the installments.

By an amendment to the petition, plaintiffs aver and for •a second cause of action say, that lot 177 has a frontage of 27.4 feet, and abuts lengthwise on said improvement 120 feet; that [lot 225 has a frontage of 25 feet, and abuts 'lengthwise upon said improvement 120 feet; that said lots were assessed for the said improvement as if the same each fronted 120 feet upon said improvement, whereas the same should have been assessed, respectively, for only 27.4 feet and 25 feet, ánd that all of said assessments in excess of the assessment upon 27.4 feet and 25 feat respectively, is invalid, and they pray to have said excess enjoined.

The defendants, by their answer, first admit the making of the improvement under the ordinance and the assessments as alleged, and deny all the other allegations in the first cause of action, and particularly aver that the property was of such value as to stand the assessment. They further aver that prior to the passing of the resolution declaring the necessity of such improvement or any action of the City in regard thereto, a petition was presented to the Oity by three-fourths in interest of the owners of property abutting on said improvement, being 360 feet of the whole 480,praying for said improvement; that on the faith of such petition, the City passed the ordinance and made the improvement in accordance with the petition; that the predecessors in title of Doppes and of Hubbell and Fisher signed said petition, and are estopped to set up their claim under the first cause of action. For answer to the second cause of action, defendants aver that lot 177fjfronts, bounds and abuts on Powers street, as improved, 120 feet, and lot 225 fronts, bounds and abuts thereon 120 feet.

A reply was filed for plaintiffs in the nature of a general denial. This was not verified by the plaintiffs themselves,., but by their counsel.

The facts shown or agreed upon, as we- understand, are-substantially these: The part of Powers street improved in this proceeding is a single square in length, between Sylvan, avenue and Van Horn street, now Edgewood avenue, and' but four lots abut on Powers street, viz., 224, the Mayer-lot, and 177, the Doppes lot, on the north side; and 225, the Herron and Fisher lot, and -176, the Mookes lot,cn the-south side. Each of said four lots abuts 120 feet on Powers street, They are all corner lots, and 224 and 225 seem to front on Sylvan avenue, the first 27,4 feet and the other-25 feet. .Lots 177 and 176 seem to front on Edgewood avenue, the first 27.4 feet and the other 25. If there had, been no petition for the improvement, or other act done by the owners of these lots, to change their relation with the-City, it would seem that each of these lots could only, have-been assessed for this improvement under the doctrine of' the Haviland case, for their real frontages — that is, lot 225 for 25 feet and lot 177 for 27.4 feet. But the ■ fact is-that the owners of three, of these lots, representing themselves in the petition to be the owners of three-fourths of’ the property represented by the feet front abutting upon. Powers street between Van Horn street and Sylvan avenue,, petitioned for this improvement, and for the assessment for-the whole cost of such improvement, except the cost of intersections and two per cent , to be made and collected in -ten equal annual -installments.” * * * ‘‘And in consideration of the City making such improvement, we and each of us further agree with each other and with said City, and we jointly and severally bind ourselves to make good’ to the City any deficiency in the collectibility of the assessment caused by insufficiency of values of property of those-not signing this petition.”

This was signed by the owner of lot 176, 120 feet, by-the owner of lot 177 for 120 feet, and by Herron and Fisher, owners of lot 225, thus: “Entire property on both sides of Powers street, between Sylvan avenue and the corporation line, and 120 feet between Sylvan avenue and Van Horn street, ” Over some part of this statement as to the property represented by Herron and Fisher is a cross-mark; when this was done or by whom does not appear. It is shown, however, that Powers street was improved under these separate petitions, one on a petition for the improvement of said street between Sylvan avenue and the corporation line. This petition was signed by Herron and Fisher only, and was for “entire property on both sides,” The second was the one already referred to, and the third was for that part of Powers street'between Van Horn street and the Coleram pike. This, too, was signed by Herron and Fisher. We think that when Herron and Fisher signed the petition in question in this case, or after it was done’, some one undertook to strike out that part of it which referred to all “the property on both sides of Powers street, between Sylvan avenue and the corporation line, ”as not ■being necessary in this petition. But as has been said •there is no explanation as to this, and we feel, quite sure Ihe petition was signed by the owners as it originally stood, and was not stricken out by them or by their authority before presentation to the City. It stood then as a petition for the improvement representing their property to be 120 feet, and that the petition was signed by three-fourths in interest of the property represented by the feet front abutting upon Powers street. And such was the case as to lots 225 and 177, the latter now owned by Doppes. We think therefore, on the authority of City of Cincinnati v. Manss, 54 Ohio St., 257, they are estopped to deny that they had the 120 assessable feet stated in their petition,and that this rule applies also to the other petitioners therefor, and consequently that they were properly assessed for the whole 120 feet. We also find that there was in this case [a [petition signed by three-fourths in interestjof the owners_of the property abutting on the improvement in the meaning of section 2272, Revised Statutes, and therefore, that] those signing said petition can not avail themselves of thejgeneral provision of the statutes that the assessment shall not exceed 25 per cent, of the value of the lot so abutting. They have consented to pay the whole thereof, except 2]percent. The petition will therefore be dismissed.

Theodore Horstman, for the Property Owners.

George H, Kattenhorn, for the City.