text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Feb. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    WILLIAM H. MAHER et al., Trustee v. THE ISAAC D. SMEAD HEATING & VENTILATING CO.

      Mortgage covering realty specifically described, and also any thereafter to be acquired — Effect as to after-acquired property.

    S. carrying on the business of contracting for and putting in heating apparatus, and being the owner of certain property, gave a mortgage to secure a loan'of money to enable him to proceed with his business which mortgage contained a provision that it should cover the real estate specifically described, owned by S., and also any which he might thereafter acquire, which mortgage was duly-recorded.

      Subsequently, S. concluded to manufacture the apparatus he had previously hem dealing in, and purchased real estate and erected a foundry and shop, and gave another mortgage to secure an additional loan of money, which mortgage described the foundry property specifically. Held, that the owners of the notes secured by the second mortgage had a lien upon the foundry property prior in order to and better in right than the holders of the notes secured by the first mortgage, which did not describe the foundry property.
   King, J.

This case is submitted to the court on a motion to strike out certain paragraphs from the answer and cross-petition of the defendant, Arthur J. Secor. The motion raises substantially this question: whether a certain mortgage given by Is^ac D. Smead, which contained a provision in it that it should cover not only the specific real estate described in the mortgage, but also that which the grantor might thereafter acquire, does actually cover certain after-acquired property.

Isaac D..Smead, at the time of the execution of the first mortgage]1 qyas, carrying on the business of putting in heating and ventilating apparatus, and soon after the execution of the mortgage known as the first mortgage in these proceedings, there was organized by Mr. Smead and others a corporation known as the I. D. Smead Heating and Ventilating Company, and shortly afterwards Isaac D. Smead individually purchased certain lands in the city of Toledo, with the object in view at the time of the purchase of erecting thereon a foundry for the purpose of manufacturing and constructing the iron and steel work necessary to go into the heating and ventilating apparatus that he before that time had been contracting for and selling, and which the Heating.and Ventilating Company were contracting for and selling. Previously the work and labor of casting the various materials had been let out on contract to other parties. After the purchase of this land in question with the view of constructing a foundry thereon, a foundry was erected; and there are allegations by way of answer tending to show that the money received from the notes which were negotiated and secured by the first mortgage, or some of it, at least, went into the erection of this foundry building. After or about the time the foundry building was completed,^ Isaac D. Smead gave a second mortgage which described specifically the property which had been used for] foundry purposes as well as all the property described by the first mortgage.- This controversy is between the holders of the notes or bonds secured by the first mortgage, and those secured by the second mortgage, as to the fund arising from thejfoundry property.

It is claimed by the holders of the first mortgage notes and bonds that the description in the mortgage of after-acquired property gives them the right, after the recording of their mortgage, to have a lien upon all the property owned by Isaac D. Smead at the date of its execution, and also upon any that he might acquire afterwards. This is opposed, mainly on the ground that the recording'acts requiring incumbrances of that kind to be recorded, would prevent a lien created in such a manner from resting upon property not described in the conveyance. The act in question is Sec. 4133, and requires all mortgages executed agreeably to the provisions of that chapter to be recorded in the office of the recorder in the county in which the mortgaged premises are situate, and provides that they take effect from the time they are delivered to the recorder of the proper county for record, That is all of the statute that it is necessary to read. This question has never been exactly decided in this state where nothing else but this question arose. There are some decisions, however, which bear upon the effect of this recording act, which, in our judgment, should have great weight in controlling the effect to be given to a mortgage as against subsequently acquired interests in the-property not owned by the mortgagor at the time of giving the first mortgage. The first of these cases where the question was at all referred to is in 4 Ohio St., were the court considered what was the effect of an agreement to give a mortgage as against a general assignee, and said if it were to be decided upon general principles, the right of the complainants to the relief which they sought would seem clear; that upon equitable principles an agreement in writing for a mortgage is a valid contract, fixing a specific lien upon the property to be mortgaged, and it will be specifically enforced by a court of chancery against the party and all subsequent purchasers from him with notice, as well as against any general assignment, either voluntary or by operation of law. Then the court proceeds to refer to several cases that had been previously decided in Ohio bearing upon both the general equity principles which the court had referred to, and the effect to be given to the statute relating to the recording of mortgages, which at that time was substantially, if not exactly, the same as now Then the court says on page 54:

“No one of these cases was decided in ignorance of the general principles to which we have alluded,, and in every one of them a different.conclusion would have been arrived at, if these principles could have furnished the rules of adjudication. But it was perfectly competent for the legislature to change or modify tnese rules, and when it had done so, no discretion was left tc the judicial tribunals to depart from the express commands of the legislative body. Those commands the courts have regarded as explicit; the statute expressly declaring, that mortgages do and shall take effect and have preference, ‘from the time the same are delivered to the recorder of the proper county, to be by him entered on record. ’ To give them any effect before, as against the person intended to be protected by this statute, would be to repeal it * * * The principle deducible from all the cases is, that the legal rights of such persons cannot be displaced, at the instance of the holder of a prior unrecorded mortgage, or contract for a mortgage, although acquired with notice of such mortgage, or of the existence of such contract; the object of the law'being to avoid all the vexed questions of notice, actual or constructive, in determining priorities of lien. So far as may be necessary to their protection, such a thing as an equitable mortgage is wholly unknown.”

We are cited tp a case in 10 Ohio St. where a question arose upon a mortgage of railroad property and its fixtures and equipments, with all the appurtenances, income and resources thereof. In deciding the case, which was decided upon another point than the one that I am talking about, the Court said on page 390:

We have to inquire, in the next place, whether the provisions so extended the powers of the corporation as to authorize a pledge or mortgage of the property not existing, or not owned by the corporation, at the time of the pledge or mortgage, but to be thereafter acquired. It is admitted that the general powers of the corporation, being in this respect no greater than those of an individual, would not authorize a legal pledge or mortgage of such property. In this state, under the construction of our registry laws, it is quite clear that a mortgage of lands to be afterwards acquired, being a mere contract to convey such lands as a security, or, as it has been termed, an equitable mortgage, can have no validity against third persons who acquire legal interests In, or liens upon, the property.

Then the court quotes with approval the last paragraph that I read in the case of Bloom v. Noggle, 4 Ohio St. 54. The statement of the court in that connection was only introductory to another question which the court proceeded to discuss in that case.

We were cited by attorneys for Secor to a case in 38 Ohio St., which,so far as it bears upon this question, does not at all change the holdings of the courts upon the question as to what are legal or equitable mortgages in this state. In that case the court cited and referred to with approval all the previous'cases, including that in 4 Ohio St. and also the case of Coe v. R. R. Co., 10 Ohio St. 374, which was the case that I last read from. The expression contained in 10 Ohio St. is perhaps the only one to be found in the opinions of the court directly referring to this question in Ohio, in which they say:

It is quite clear that a mortgage of lands to be afterward acquired, being a mere contract to convey such lands as a security, or, as it has been termed, an equitable mortgage, can have no validity against third persons who acquire legal interests in, or liens upon, the property.

,. And then following the court and the learned judge who delivered the opinion in Bloom v. Noggle, the court ajpplies the same reasoning to a mortgage that seeks to cover after-acquired property.

There are a few cases in Ohio claimed to be contrary of this doctrine. The cases, however, that have been decided upon that point are cases of the mortgage of railroad property by railroad companies, and they are sustained upon a variety of grounds. In the first place, in Ohio, the statute which authorizes the borrowing of money and the mortgaging of property by railroad companies (Sec. 3287), contains an express provision that they may mortgage their income. In the second place, the reasoning upon which most, perhaps all, of these decisions is based, is that the necessities of railroad construction require that they should be permitted to pledge or by mortgage to cover by these conveyances the entire property which they have or which they hope to have by construction. As if, applying that . reasoning to an individual, one were to put a mortgage upon a naked lot of land, and should thereafter proceed to construct an expensive building upon it, .the mortgage' would, of course, cover this new structure. It would be the first lien upon the property, although other means and other moneys might have gone into the building of it. So a railroad is considered as a single structure from one end to the other, including all of its side tracks, depots, yards, grounds, and. shops, necessary for carrying on the work that was designed by its incorporation. That is one of the particular reasons that is given for holding a mortgage of after-acquired property by a railroad company to be valid, which reasoning, of course, does not apply to an individual.

It is argued in this case that here was one scheme, one project, in view, in buying this land and in the construction of this foundry — it was only one of- the things that were taken into consideration in carrying forward this business. But.it is not necessarily so. It is not true that the erection of the foundry was any part of the business of I, D. Sinead & Co.; in fact, it was no part of it, until it was concluded that it would be better for the parties managing the affair to build these furnaces themselves than to have-somebody else do it. Then was conceived the idea of buying some land and constructing a foundry, and there build or have cast these furnaces. Then they bought this land, and then they put up this foundry. They gave a mortgage for the purchase money, which is not here contested, and then, gave another mortgage which• describes this specific property. Now, from the authorities to which I have referred in this state, from the effect which our courts have given to the recording“acts, we are of the opinion that this]' first mortgage should not take the proceeds of this foundry property which is not included within its description as against the mortgagees in the mortgage that does describe ! it. We are quite satisfied that it is not the law that the'! holders of the notes secured by the first conveyance should take those proceeds.

I might say that this is perhaps well supported in another case in 4 Ohio St. 481, relating to personalty, and also in a case cited from Massachusetts in 39 N. E. Bep. 1004, which was a mortgage of both realty and personalty. It seems to be clearly settled in case of personalty that a mortgage will not carry after-acquired property, unless possession be taken before anybody else acquires any interest in it. It also seems to me that if this were a new question, regardless of the decisions that have been made in this state, equity to all the parties would require that we should hold that the mortgage did not convey this property as against those who have acquired interests in it afterwards. Certainly the purpose of his statute requiring these instruments to be recorded is to give notice to those who may .be called upon to extend credit or to acquire liens or interests in the property. The notice given by such' a mortgage as this first one is absolutely worthless; it would not be considered or regarded, as was said here in argument, by an abstractor who was getting up an abstract of title, for one reason at least, that at the time when the mortgage itself was given, executed and filed for record, the grantor in it did not own, and in this case apparently had no intention of owning, the specific real estate which he afterwards acquired. He might have had some undefined project that he would erect a foundry, but where it was to be erected had not certainly received any consideration, and it would only be erected when he could acquire the land necessary to erect it. And when the mortgagor did secure the land and did create an immense structure there, and build it, and then gave a mortgage upon it to secure other people who had loaned him money, it would certainly be inequitable to say they should not have the security conferred by their mortgage as against those who had taken these notes and bonds issued long before this property had been purchased or this property constructed.

King & Tracy, for Plaintiff;

G. H. Beckwith for Defendant Secor.

This disposes of the question that is sought to be raised by this motion. An entry may be prepared in conformity with this opinion.


source: Caselaw Access Project

author: Swing, J.,

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    ROBERT J. EFFINGER v. THE STATE OF OHIO.

      Contempt of court for failure to pay alimony decreed — What evidence required — Ability to perform order of court — Poiver of court to imprison as for contempt—
    1. Proceedings in contempt under our code are not provisional remedies, biit are special proceedings. Section 5644, Rev. Stat., contemplates a trial on such evidence as is competent in ordinary trials before the court. The party accused has the right to meet the witnesses for the prosecution face to face, and the opportunity to cross-examine, and affidavits can therefore not be used.
    A In such proceedings under sec. 5644, Rev. Stat., the court, before imprisoning for failure to perform, should find the accused capable of performing, unless the court should find that the accused fraudulently put it out of his power to perform.
    •3. Upon sufficient evidence the court has the power to imprison for contempt on failure to pay alimony. It is not a debt, and an imprisonment for failure to perform is not against the provisions of our constitution or our statutes.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.,

This is an action in error to the judgment of the Court of Common Pleas. In that-court the plaintiff in error was adjudged guilty of a contempt of court, and ordered committed to the county jail, there to remain until he purged -himself of the contempt of the court by complying with certain orders of the court heretofore made by it. The record «discloses these facts: On August 12th, 1895, Emma Effinger was by the decree of the court granted a divorce from said Robert J. Effinger, and said Robert was decreed to pay to her alimony to the amount of $25 per month from the 6th of July, 1895, also $50 as attorneys’ fees to her attorneys. On November 18th, 1895, a motion was filed in said court to issue a citation against said Robert J. Effinger, to show cause why he had not complied with said decree,[and on November 23rd said order was issued.

February 11, 1896, charges of contempt were filed.

February 15, 1896, trial was had, and the court found the defendant guilty. A bill of exceptions was filed embracing all the evidence, and the case is here on error on the ground that the judgment is against the law and the evidence. The only evidence offered on the trial was the record of the decree above referred to, and the affidavit of said Emma Effinger sworn to January 7th, 1896, in which she says that Robert had failed and neglected to pay the installments of alimony due October 6, November 6, December 6, 1895, and January 6, 1896.

It seems to us that the ecurt erred iix permitting the affidavit of Emma Effinger to be read on the trial,

Section 5263 provides that “an affidavit may be used to verify a pleading, to prove the service of the summons, notice or other process in aix action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion aixd in any other case permitted by law.”

Proceedings in contempt under our code are not provisional remedies, but are special proceedings. Section 5644 provides that “upon the day fixed for the trial the court shall proceed to investigate the charge and shall hear aixy answer or testimony which the accused may make or offer.” This section it seems to us, contemplates a trial on such evidence as is competent in ordinary trials before the court. The party accused should, we tnink, have the right to meet the witnesses for the prosecution face to face, and the opportunity to cross examine.

There is no provision in the chapter on contempt which states that affidavits may be used.

Burch & Johnson, attorneys for Mrs. Effinger.

Shay, Johnson & Cocyan, for Mr. Effinger.

In addition to the foregoing objection, it might well be held that even if affidavits could be used, the affidavit in this case does not show conclusively that the accused was at the time of the trial guilty of contempt. The affidavit was given January 7, 1896, and the trial was not until February 1, 1896. It may be that in the meantime the accused had' paid the full amount due. The party is adjudged guilty of the contempt, not that he did not pay the amount of the alimony prior to January 7, 1896, but because he had not paid all the installments due up to the time of the trial, viz., February 1, 1896, when the only evidence was the affidavit of January 7, 1896. It seems to us that a judgment like the one before us should rest upon the facts that existed at the time of the trial.

We are further of the opinion that section 5646, which provides “When the contempt consists in the omission to do an act which is yet in the power of the accused to perform, he may be imprisoned until he performs it,” contemplates that the court, before imprisoning for failure to perform, should find the accused capable of performing, unless the court should find that the accused fraudulently put it out of his power to perform. This disposes of the question before us on the record.

Our opinion is that upon sufficient evidence the court has the power to imprison for contempt on failure to pay alimony. It is not a debt, and an imprisonment for failure to perform is not against the provisions of our constitution or our statutes. Numerous authorities in other states and the text books fully sustain this holding.

The judgment will be reversed, and the cause remanded for further proceedings.


author: Swing-, J. Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    AYLMORE v. KAHN.

      Livery keeper’s lien for feeding and earing for horse, as against lien of mortgage on horse previously made.

    Under sec. 3212, Rev. Stat., as amended April 18, 1890 (87 O. L. 222), where a horse is mortgaged by the owner who afterwards leaves' ■ the same with a livery stable keeper for food and care, the lien created by the statute on the horse for such food and care takes-priority to the claim of the mortgagee under his mortgage. Prior to the amendment of April 18, 1890, the mortgagor, though in possession of the property, could not thus create a valid lien, as’ against the mortgagee, without his knowledge or consent, express- or implied.
    Error to the Court of Common Pleas Hamilton County.
   Swing-, J.

This is an action in this court on error to the judgment of the Court of Common Pleas. The facts out of which this action arose are in bri^f as follows: G. B. Poole and wife, residents of S.pringfield township, Hamilton, county, Ohio, being in debt to defendant in error, Kahn, executed a chattle mortgage to said Kahn to secure said indebtedness ,on August 22, 1892. The property mortgaged consisted of certain household furniture, a buggy, a. carriage, harness and a bay mare. The mortgage provided that if said Poole should remove any of said property from' its location, said Kahn might take possession of the same. That at the time of the execution of said^mortgage the property wás in Springfield township, and said mare was cared for by said Póole: The mortgage was duly filed. Said. Poole, without the knowledge or consent of said Kahn, removed said buggy and carriage and horse from said Springfield township to the stable of said plaintiff in error in the city of Cincinnati, Cincinnati township, said Aylmore being; a livery stable keeper at said place, and said ckattle property was placed in his care and custody', where it remained until May 6, 1893. After condition broken in said mortgage, said Kahn made demand of sáid Poole for the payment of his debt, and afterward made demand of said’Aylmore to deliver to him said property, and said Aylmore refused to deliver the same to said Kahn until he had first paid to him the charges for keeping said horse, which amount so demanded was agreed between the parties as being a fair and reasonable amount. Thereupon’ said Kahn brought suit against said Aylmore in replevin to get possession of the same. This is the case that is here for consideration, and it involves the single legal question whether under these facts a livery stable keeper’s lien is superior to that of a ohattle mortgagee in Ohio.

The question is an interesting one, and one about which the authorities differ. We are of. the opinion that under the law of Ohio as it existed at the time this action occurred, viz., Sec. 3212 R. S., as amended April 18, 1890, 87 Ohio L. p. 222, which is as follows: “A person who feeds or furnishes food and care, or either for any horse *

* * by virtue of any contract or agreement express or implied with the owner or person having possession thereof, shall have a lien therefor to secure the payment of the same upon said animal, ’’this is purely a statutory lien,never having been such at common law; but being made a lien by statute, it should be considered in the same light as common law liens. The common law lien of an innkeeper, it seems to me, is more nearly analogous to that of one who feeds or cares for a horse than any other of the numerous common law liens. In Yol. 1, Jones on Liens, Sec. 499, speaking of this lien, says:

“Thus it has become the settled law with reference to this lien, that there is no distinction between the goods of a guest and those of a third person brought by a guest and in good faith received by the innkeeper as the property of the guest.”

In the 36 Min. p. 303, the court say.- ‘‘Under Gen. St. 1878, c. 90, ss. 16, 17, as the latter is amended by laws of 1885, c. 81, any person keeping any horse at the request of the owner or lawful possessor thereof is entitled to a lien for his just and reasonable charges therefor, and may hold and retain the property until such charges are paid. This is by its terms a law of general application as respects its subject-matter. It expressly provides that keeping at the request of the legal possessor shall be sufficient. This includes the case of a mortgagor lawfully in possession of mortgaged property, as by the express provision of the mortgage the mortgagor was in this instance, and a mortgage made, as was that in the-case at bar, while this statute was in force, is made subject to it as to all other applicable general rules of law. A mortgagee, when he takes a mortgage, takes it in legal contemplation with full knowledge of and subject to the rights of a person keeping the property at the request of the mortgagor or other lawful possessor, to the statutory lien,as he would do to a common law lien.”

This I think is a clear and succinct statement of the law.

In the 21 Ks., at page 220, Judge Brewer, speaking for the court, says:

‘‘Now the lien of this agister is not the true creature of contract; it is created by statute from the fact of the keeping of the cattle. The possession of the agister was rightful; the keeping gave rise to the lien; and such keeping was as much for the interest of the mortgagee as the mortgagor. The cattle were kept alive thereby; and the principle seems to be, that where the mortgagee does not take the possession, but leaves it with the mortgagor, he thereby consents to the creation of a statutory lien for any expenditure reasonably necessary for the preservation or ordinary repair of the thing mortgaged. Such indebtedness really inures to his benefit. The entire value of his mortgage may rest upon the creation of such indebtedness and lien as it is in the case at bar, where the thing mortgaged is live stock, and the lien for food. And while it seems essential that this should be the rule to protect the mechanic or other person given by statute a lien upon chatties for labor or material, the rule on the other hand will seldom work any substantial wrong to the mortgagee.”

As opposed to the law as announced in the two foregoing decisions, quite a number of cases may be found. And in passing on a similar question in a recent case the Supreme Court of Indiana, after reviewing the authorities, say that the weight of authority is opposed to the view taken by the courts in these two cases.

It .may be the court in this case has correctly applied that pet legal phrase, “weight of authority, ” It is not my purpose, however, to review all the authorities on this question, or to enter into any extended discussion on the law appertaining to it- — -as a court of last resort might very properly do; but will content myself by saying that we think the reason of the law is in accord with the decisions supra. That the legislature had the right to make such a law cannot be questioned. That it intended the lien created to be superior to any other lien we think cannot be doubted, and the mortgagee when he took his mortgage took it subject to the law as it then existed, and said law became apart of his mortgage just as much as if written in it; so that it might just as well have been written in his mortgage, that his lien was subject to any lien that the owner or one in possession might create in favor of the keeper for food or care. Such reasoning it seems to us is grounded on well founded legal principles, and accords with natural justice and right.

The law of.1890 has since been changed. See 91 Ohio Laws 133.

The Court of Common Pleas took a view of the law differing from the foregoing, and judgment was rendered accordingly. It follows that the same must be reversed, with costs.

G., Bates, attorney for Plaintiff in error.

S. W. Johnson, attorney for Defendant in error.

Smith, J.

I concur in the opinion that the judgment of the Court of Common Pleas should be reversed, but on the sole ground that the section of the statute under which both the mortgage was given and the lien created, Sec. 3211, passed April 18, 1890 (Vol. 87, p. 222) expressly gives to the liveryman a lien, when the food or care was furnished to the animal under a contract, express or implied “with the owner, or person having possession thereof.” The mortgagor was in this case in the lawful possession of this horse,and the contract with the liveryman was made.by him.

If the statute read as it did in Smith & Benedict’s Statutes, Revision of 1890, which contained the statute of April 14, 1886 (83 O. L, 80), which gives the lien only when the agreement express or implied was made by the owner, I would be of the opinion that the mortgagor, though in possession of the property, could not thus create a valid lien as against the mortgagee, without his knowledge or consent, express or implied, for the reasons so well stated in Jones on Liens, Vol.l , Sec. 691 and 691a. But as'has been said, the statute was amended April 18, 1890, and this new law, with the change stated, was in force when this mortgage was executed and the lien created, and must therefore control.


author: Day, J.

text:
    (Third Circuit—Logan Co., O., Circuit Court
    Feb’y Term, 1896.)
    Before Seney, Day and Price, JJ.
    WILBUR H. GINN v. THE COMMMISSIONERS OF LOGAN CO., JAMES C. WONDERS et al.

      Appeal — Effect—Concurrent error proceedings not admissible.

    1. The perfecting of an appeal in an appealable case, has the effect to suspend the judgment — so far vacating it that in fact no final order is left subsisting upon which to predicate error. In such case the appeal takes the whole case into the appellate court to be reviewed on appeal, and error to the same matter cannot be concurrently maintained.

      Repeal by implication.

      2. Repeals by implication are not favored, and are not accomplished if the statutes can be fairly reconciled.

      Same — General statute not expressly contradicting prior special statute.

    3. A general statute not expressly contradicting prior special statutes is never construed to affect their particular and positive provisions unless absolutely necessary to give its words meaning.

      County commissioners — Authority to employ engineers other than county enginer.

    4. The provisions of sec. Í181, Rev. Stat., as amended May 21, 1894, 91 O. L. 397, do not repeal, or in any respect modify the provisions of sections 4454 and 4831, Rev. Stat. Said sections are in full force, and authorize and empower the county commissioners, in the exercise of a sound discretion, to appoint competent engineers, other than a county surveyor, to render service on ditch _ and turnpike improvements.
   Day, J.

Under the title of Wilbur H. Ginn against the Commissioners of Logan County, O., et al., are three cases pending, between the same parties, numbered 192, 192-| and 211. Number 211 is an action in error; number 192 is on appeal from the common pleas court, and 192-|-isa petition in error to the same court; questioning the propriety and validity of the judgment from which the appeal is perfected. The perfecting of an appeal, in an appealable case, has the effect to suspend the (judgment — so far vacating it that in point of fact no final order is left subsisting upon which to predicate error. In this case the whole matter is up and is being-reviewed in this court on the appeal, and error to the same-matter cannot be concurrently maintained. The case in error,number 192-J-, is therefore dismissed at the costs of plaintiff in error.

Cases 192, on appeal, and 211, in error, involve the same-question. In each case the plaintiff, in his petition, shows. that he is the county surveyor of Logan county, duly elected, qualified and acting; that he is ready, willing and able to do and perform all the labor and service needed and required of a surveyor and civil engineer in all ditches and ditch work, and all other public improvements in the county; yet, with full knowledge of all these facts, and of the legal rights of plaintiff as such county surveyor, the defendant, the Board of County Commissioners, in a certain ditch proceeding then pending, in February, 1895, by its order duly made, appointed the defendant, James 0. Wonders, a competent engineer, to be the engineer and to render the necessary engineering service required on said ditch improvement; that said Wonders, under said order of appointment, proceeded and performed the duties of engineer on said ditch improvement, reported his doings to the commissioners, which report has been approved by them, and further orders made in the matter; that Wonders will perform other and further duties and services as engineer on said ditch improvement and other public improvements, and will present his bills for such services and will be paid therefor, through the procurement of the said commissioners and the aid of the auditor of the county, unless a restraining order is allowed, all to the great wrong and injury of the plaintiff, for which there is no sufficient remedy at law. The prayer is for an order of the court restraining the appointment of any engineer to perform service on the said ditch improvement, other than the plaintiff, and also an order restraining the payment of Wonders for services already rendered. In each case a general demurrer to the petition was sustained by the court below, and the petition dismissed. As stated, an appeal was taken in one case, and error prosecuted in the other, and a proper decision on the demurrer is decisive of both cases.

The plaintiff claims as matter of legal right, and his action is based on the theory, that the county surveyor is entitled to perform all work and service of engineering required on all public improvements in the county, including-all such work required on ditohes and drains and turnpike roads; that such services are part of the official duties, and the fees provided therefor part of the emoluments of the office of county surveyor; that official, by the express provisions of law, enjoying a monopoly of such work on all public improvements of the county to the exclusion of all other civil engineers. This claim denies to the county commissioners the power to designate an engineer, other than the county surveyor, to perform any engineering service on an improvement under the drainage or turnpike statutes of the state; and if allowed, would have the effect to annul an important provision of those laws.

The claim put forth is based on the provisions of section 1181, Rev. Stat., as amended May 21, 1894; 91 O. L. 397, and a proper decision of the question presented involves a consideration and construction of that section in connection with certain provisions of the said drainage and pike laws providing for the appointment of engineers by the county commissioners. The amended section 1181 provides: “The surveyor shall keep his office at the county seat in a room provided by the commissioners, which shall be furnished at the public expense, with books, book cases, stationery, etc., ’ ’ needful for the proper discharge of his official duties, etc., “and when the services of an engineer are required, with respect to roads, turnpikes, ditches, Dr bridges * * * the county surveyor shall act as such engineer, and shall receive for his services such compensation as is provided by law for the services of an engineer in such cases.” By the laws relating to the special subjects of ditches and turnpikes, the county commissioners are authorized and empowered to appoint en- . gineers to perform all engineering services required, and the discretion of the board as to the personel of the appointee is not controled; the only stipulation being that' he must be a competent engineer. Section 4454, relatiug to county ditches, provides: “If the commissioners find for the improvement, they shall cause to be entered on their Journal an order directing the county surveyor, or an- engineer, to go upon the line,” etc. Sec. 4831, Rev. Stat., providing for the construction of turnpike roads, provides, among other things, “thecommissioners shall appoint three disinterested freeholders of the county as viewers and a competent surveyor or engineer to proceed,” etc. There is nothing in the wording of either of these provisions that can be fairly held, by inference or otherwise, to require the selection of the county surveyor; but in each provision the commissioners are left entirely free, in the exercise of a sound discretion, to select a competent engineer for the required service, regardless of whether the engineer selected be also the county surveyor or not; and such is the wise provisions of the drainage and turnpike laws at the present time, unless by some proper process the above quoted plain provisions have been annulled. The suggestion of plaintiff is that they have been annulled — repealed in fact, by the act of 1894, amending sec..1181 and repealing “all acts inconsistent therewith. ” Sec. 1181 was first amended in 1892, 89 O. L. 172, and such first amendatory act, with the exception of a merely formal matter and the repealing section, was similar to the amendatory act of 1894; the provisions of the section, under both amendments, remaining substantially the same. The provision under both was: “When the services of an engineer are required with respect to roads, turnpikes, ditches, etc., the county surveyor shall act as such engineer.”

The precise question we now have was before this court two or three years ago, and was decided by it, in the case of James C. Wonders v. The Commissioners of Logan County, pending on appeal. Wonders was then county surveyor, and relying on the provisions of section 1181, as amended in 1892, made the same contention now made by plaintiff; and this court, Judge Moore formulating the opinion, placed its construction .on that section holding- in substance, that the amended provision only defined and prescribed an additional official duty for the ■ county surveyor; making it obligatory for that official, upon being designated, to act as engineer on any public improvement named in the section, by the proper authority, to accept the appointment and perform the required service; .and did not in any way modify or abridge the power or control the discretion of county commissioners under the provisions of the ditch and turnpike laws, to appoint other competent engineers. Thejcourt is still content with that holding. We believe it was and is correct, and do not desire to modify or amend it unless a revision is made necessary by some additional provision of the act of 1894, amending section 1181. As stated, the amendatory act of 1894 does not materially differ in any respect from the act of 1892, which this court construed, unless it be in the provision of the repealing section of the act of 1894. The act of 1892 only repealed original section 1181; while the act of 1894 repeals “original section 118T, as amended March 80, 1892, and all acts inconsistent herewith.”

It is urged that the provisions of the ditch and pike laws, giving the county commissioners authority to appoint competent engineers, other than county surveyors, is inconsistent with the provisions of amended section 1181, and being earlier laws, are repealed by the later; if not expressly, then by fair implication. If this view is correct and is to obtain, then plaintiff’s contention must be allowed. But is it correct? We have been unable to so conclude. Nothing is clearer, we think, than that no express repeal has been made, and we consider it equally clear that a repeal by implication has not been accomplished. The holdings of our Supreme Court on the subject are to the effect that repeals by implication are not favored in this state, and are never accomplished if the earlier and later statute can be fairly reconciled. If, however, statutes flatly contradict each other, the later repeals the earlier; and a law revising the entire subject-matter of a former act, and evidently a substitute for it, repeals the earlier one by implication. But the rule, which is deduced from the givings out of the Supreme Court, reported at 14 Ohio St. 472; 22 Ohio St. 508; 25 Ohio St. 29; 26 Ohio St. 200; 39 Ohio St. 628, viz: “A general statute not expressly contradicting prior special statutes, is-never construed to affect their particular and positive provisions unless absolutely necessary to give its words meaning,” has special application to the facts in this case, and is, we think, decisive of it.

Section 1181, Rev. Stat., as amended, does not flatly contradict the drainage and turnpike laws, is not a revision of' the entire subject-matter, and is not evidently a substitute-for them; nor does it seem absolutely necessary, or necessary at all, to modify to any extent any of their provisions in order to give meaning to the words of amended section. 1181. We do not perceive any conflict between the amended provisions of that section, which we hold simply defines- and imposes an additional duty on the office of county surveyor, and the various sections of the ditch and pike laws, defining the powers and duties of county commissioners-with respect to the selection of engineers. The one is a general statute, having reference to the general official duties of' a county surveyor, to be performed when required; the-other sections have reference to the special subject of ditches and turnpikes, and define the powers and duties of county commissioners with respect to those special and particular-matters. The two occupy entirely separate and distinct fields of legislation, so an irreconcilable conflict in their provisions, and consequent repeal of the earlier by the later statute, does not seem likely to result; at least, we think, such repeal has not resulted up to the present. If it is the purpose of the legislature to modify or repeal the wise provisions of the ditch and pike statutes, so as to deprive the county commissioners of the discretionary power to appoint competent engineers in these special matters, to accomplish it we imagine it will have to be at the trouble of amending said statutes in the constitutional method. This, we think, has not been done as yet. The act of 1894, amending section 1181, does not accomplish it, and the power of county commissioners, in the exercise of a sound discretion, to appoint competent engineers in all ditch and like matters, is still the law of Ohio.

West & West and Samuel West, for Wilbur A. Ginn.

Howenstine, Huston & Miller and J. A. Odor, for the County Commissioners.

It follows the demurrer to the petition in case number 192 should be sustained. The demurrer is sustained, and the petition dismissed. In case number 211 we find no error apparent in the record, and the judgment is affirmed.


author: Laubie, J.

text:
    (Seventh Circuit—Columbiana Co., O., Cir. Court
    Jan. Term, 1896.)
    Before Laubie, Frazier and Burrows, JJ.
    WM. S. RISCHER v. WM. MEEHAN, J. H. TURNER and HENRY HOOVER.

      Misconduct of Marshal — Shooting person escaping after arrest for misdemeanor — Liabilities of surities on bond.

    The plaintiff being in the custody of the defendant Meehan, as marshal of the city of Wellsville, having been arrested by such marshal for fighting on the streets and for carrying a concealed weapon, attempted to escape, and fled, and in arresting his flight, and for the purpose of re-capturing him, such officer shot and wounded the plaintiff. Held, that the plaintiff being under arrest for the commission of misdemeanors only, the act of the officer in shooting him, for the purpose aforesaid, was unlawful, and an act of official misconduct, for which the sureties on his official bond are responsible.
    Error to the Court of Common Pleas of Columbiana county.
   Laubie, J.

This is a proceeding in error brought to reverse the judgment of the court below in sustaining a demurrer to the amended petition, and in rendering judgment of dismissal.

The question presented is as to the right of the plaintiff to hold the sureties on the official bond of the marshal of the city of Wellsville for a tresspass to his person, committed by the marshal while attempting to capture the plaintiff, who was in the act of escaping from the custody of the officer.

The petition alleges that the marshal, William Meehan, “in the performance of his duty as marshal in the city of Wellsville, arrested plaintiff on charge of committing misdemeanors, to-wit, fighting on the streets of said city, and carrying concealed weapons;‘that on said day in said city the plaintiff escaped from the custody of said marshal, and was fleeing from him, and that said marshal, Meehan,attempted to re-arrest him, and in attempting to re-arrest him, and for the purpose of accomplishing the re-arrest of the plaintiff, he unlawfuly, maliciously and without cause, pointed and aimed a certain pistol, loaded with powder and ball, at plaintiff, and with the same did unlawfully shoot plaintiff, the ball from said pistol shot and discharged by defendant Meehan as aforesaid, struck plaintiff and passed through his right hip.”

The marshal’s official bond is,set out in full in the petition, signed by the other defendants as sureties, which recites his election to the office of marshal, his acceptance thereof, and conditioned for the faithful performance of his duties as such marshal. The attempt in the case to hold the bondsmen responsible for this alleged illegal act is for the reason, as we are informed, that the marshal himself is pecuniarily irresponsible.

To this amended petition a general demurrer was filed and sustained, and plaintiff not desiring to plead further or amend, judgment was entered in favor of the defendants, and the petition was dismissed. The court held that the bondsmen were not responsible, and on that ground dismissed the action.

This is somewhat of a novel question in this state, and in a large majority of the states of this country, although this court, in a case to which I will refer hereafter, has heretofore expressed an opinion upon it in harmony with the holding of the court below, but which, upon mature consideration, we are not able to uphold.

The books generally have been searched for cases upon all fours with this, where the illegal act was a tresspass to the person, and it is possible that between the researches of counsel and of ourselves we have now before us about all of the cases that can be found in the state reports upon this precise question.

So far as the illegality of the act is concerned, it is conceded that the officer had no right to shoot the plaintiff in attempting to re-capture him, where the offenses committed by him were mere misdemeanors.

In Kentucky, in three cases. Jewell v. Mills, 3 Bush. 62; Calvert v. Stone, 10, B. Mon. 152; and Murrell v. Smith, 3 Dana 463; and in Utah, in the case of Clinton v. Nelson. 2 Utah 284, the negative of this proposition has been decided. That is, that the sureties on the official bond of the officer are not responsible for his acts of violence to the person, for trespass to the person, although done in the attempted discharge of an official duty. But in the last case stress seems to be laid by the court upon the proposition that it was an action “in form ex contractu, but in effect ex delicto. It charges upon contract, and claims damages for a tort,” and that such an action can not be maintained.

Another case has been cited, State v. Brown, 11 Ired. Law (Nor, Car.) 141, as also sustaining this doctrine, but it is not a case of trespass to the person, but a levy upon, or seizure of, property. The point there decided was,—

“A sheriff, knowing that certain goods had been manufactured in the state, and that no license fee was required' for them, seized the goods, as he would have been authorized to do if they had been manufactured out of the state, but which he had no authority to do as the. facts were. Held, the sureties on his official bond were not liable for his acts in making such seizure.”

It has also been held that where an officer wrongfully and unlawfully arrests a person, upon a warrant void upon its face, or without any warrant at all, the sureties on his bond are not liable.

McLendon v. State, 21 L. R. Ann. (Tenn.) 738; State v. McDonough, 9 Mo. App. 63.

But in McLandon v. State, supra, the court distinguishes that case from a case where the. officer having a valid writ against A., misuses it by seizing the property (and from the tenor of the opinion, the person) of a stranger to his process.

In State v. Beckner, 123 Ind. 371, s. c. 32 Am. St. R, 263, the facts were similar to the facts in Jewell v. Mills supra. A constable, with a writ of replevin for a sewing machine belonging to the plaintiff’s daughter, and which was in the house of the plaintiff, to obtain the machine, made an unlawful entry into the house, and committed acts of violence to the person of the plaintiff, and injured her, and the court held that the sureties on the bond of the constable were responsible for such acts and injuries.

In Huffman v. Koppelkom, 8 Neb. 344, 12 Neb. 98, it was held:

'“The sureties on a sheriff’s bond are not liable for acts done colore officii, but are liable where the sheriff having a warrant against A., arrests B., and in arresting him unlawfully shoots and wounds him,”

In Cash v. The People, 32 Ill. Court of Appeals, 250, a constable arrested the plaintiff for a misdemeanor, and, instead of taking him before a justice, as was his duty, took him to the lockup, and in doing so, as was alleged, unlawfully, brutally and wilfully beat and assaulted him. The court held, that it was an act of official misconduct, done in the attempted discharge of an official duty,and that the sureties were responsible.

In Clancy v. Kenworthy, 74 Iowa 740, it was held, that sureties on a constable’s bond, “are liable for acts of the constable, in unlawfully and abusively arresting and imprisoning and prosecuting a party, and they cannot escape liability by the fact that the acts complained of were instigated by malice. ”

These are the only cases that we are able to find squarely upon the proposition.

We are, however, cited to the case of Farrier’s Adm’r v. Cook et al., in Circuit Court of Mahoning county, decided some years ago, which, it is claimed, upholds the doctrine of the court below. And it is true that the court at that time was inclined to uphold, and did express, the opinion that the doctrine as declared in the Kentucky cases was correct. But it is doubtful if the case required a decision of the question. In that case Cook, the officer, in attempting to arrest Farrier, the decedent, shot and killed him, and the action was brought under the statute to recover damages for a wrongful death, and the point necessary to be decided by the court was whether, under the statute, such an action might be maintained against the sureties on the bond of the officer

None of the casss heretofore referred to in this opinion, holding the opposite doctrine, was before the court in that case; and the opinion was based upon the holding in the Kentucky cases, supra, and the apparent approval thereof in some of the text books.

But, at all events, upon a mature reconsideration of the question, we are unanimous in the belief that in so far as the opinion was expressed in that case that the sureties of an officer are not responsible for his illegal acts in committing a trespass upon the person of a party whom he attempts to arrest, it is not good law.

In cases in reference to property, it has been held that the sureties are responsible for the illegal seizure of the property of one person by the officer upon a writ against another person. And, in this respect, we can see no difference in principle between the seizure of property and of persons. But the cases referred to above recognize a distinction in this respect, and exonerate the sureties for acts of violence or trespasses to person, while they would not for similar acts or trespasses to property, thus affording greater security to property than to person, and placing the person of the citizen on a lower plane than his property; and for no other reason than that, being an act of personal violence, it could not be an official act. There is the same want of uniformity, however, in the decisions outside of the state in regard to illegal acts done in respect to property, as there is in regard to trespass upon the person; and in each and all of them the discussion proceeds more upon names than upon principle. They discuss the question of, and distinguish between, acts done colore officii and those done virtuie officii, of malfeasance and misfeasance, voluntary and involuntary.

The real question in all such cases is, was the particular act complained of unlawful, and done while engaged in, and in connection with, the performance of an official duty? Not merely, was such act illegal, or forbidden by law? If it was done in the attempt to perform an official duty, then it was official misconduct, and we know of no principle of law which should intervene to protect the sureties upon the bond; and public policy requires that they should be held responsible. Public policy demands that for all acts done by an officer in the attempted performance of an official duty, the sureties on his bond should be responsible, and that the public should not be forced to rely solely upon the individual responsibility of the officer. The bond is required, and is given, for the express purpose of securing the public against illegal, unwarranted and unlawful acts of the officer while in the discharge of official duty. If we apply the test of legality simply to the particular act complained of, and finding that illegal, and outside of the line-of the officer’s duty, and forbidden by law, and hold the sureties not responsible therefor, then the sureties never can be held responsible, because there is no liability for the result of lawful acts. The act must be considered in connection with what the officer is doing, whether he is at the time engaged in the performance of an official duty, as in this case in trying to recapture one who had escaped from his custody; and if he is so engaged, then all his acts in connection therewith, and done in reference thereto, however illegal in themselves, are official' acts, and constitute official misconduct for which the sureties should be liable.

It is therefore entirely immaterial to consider whether the act in question would come within the definition of an act done colore officii, or an act done under the performance of a duty virtide officii-, whether it was a malfeasance or misfeasance, intentional or unintentional. All that is quite immaterial, if we find that the officer was at the time engaged in the performance of an official duty, and he improperly performed it, or unlawfully performed it, to the injury of another. That is the underlying principle which should govern all such cases. And we cannot distinguish between an act done by the officer in the execution of process against the person, and against property. All wrongs of the nature we are considering result in trespasses. If the officer, for instance, takes the property of B. under an execution against A., or, if he assaults A. in arresting him for a misdemeanor, or shoots or wounds him, as in this case, in either case if is a trespass. In one it is a trespass against the person, and in the other against property, and if we want a name that will apply to and cover both, then trespass would be the proper term to apply. But if it is' to be determined on the distinction between an act done colore officii and one done virtute officii, (if there is any substantial distinction between them), then the doctrine in this state, as enunciated by the court of last resort, settles and determines the question.

In Ohio ex rel v. Jennings, 4 Ohio St. 418, the syllabus is as follows:

“A seizure of the goods of A., under color of process against B., is official misconduct in the officer making the seizure; and is a breach of the condition of his official bond, where that is, that he will faithfully perform the duties of his office. The reason for this is, that the trespass is not the act of a mere individual, but is perpetrated colore officii. ’ ’

How can this case, upon principle, be distinguished from that? Here the officer, in attempting to do that which he was authorized by law to do — to re-capture the man who had escaped from his custody — did it in an improper and an unlawful manner, committed a trespass upon the person of the party, and thereby injured him — a clear act of official misconduct. The petition charges that in endeavoring to re-arrest the plaintiff, and for that purpose, he shot and wounded him, thus alleging directly that it was official misconduct upon the officer’s part, perpetrated colore officii, and not the act of a mere individual.

In Clancy v. Kenworthy, 74 Iowa 740, heretofore referred to, the court held:

“If, in executing the functions of his office the defendant is not liáble for acts because they are illegal or forbidden by law, and for that reason are trespasses or wrongs, he cannot be held liable on the bond at all, for the reason that all violations of duty and acts of opposition result in trespasses or wrongs.”

And in Turner v. Sisson, 137 Mass. 191, it is said:

' “The object of the bond is to make the sureties responsible for the due performance of his official acts in the service of process, and in his other duties. By an official act is not meant a lawful act of the officer in the service of process; if so, the sureties would never be responsible; it means any act done by the offier in his official capacity, under color and by virtue of his office.”

I will not pursue this matter further, except to refer to the note in 46 Am. Dec. 514. There, in commenting upon a case in which it was held that where a sheriff, under an execution against A., levies upon the goods of B., he acted colore officii and not virtute officii, and, therefore, the sureties were not responsible; the author of the note says .this is a mistake, and that,

“There is no need of argument on this point beyond -the fact that public policy imperatively requires that the obligation of a sheriff’s bond should be held to include misconduct of this kind. It matters not whether the sheriff acts virtute officii or colore officii in such cases. It would be intolerable to hold that a sheriff may sell the property of strangers under writs in his hands without incurring any more than an individual responsibility which, as was the case in State v. Conover, supra, may turn out to be worthless. ”

And it would,, we think, be still more intolerable to hold that an officer in the attempt to capture a prisoner who was fleeing from his custody, may wrongfully and unlawfully shoot him without incurring more than an individual responsibility, and which is or may turn out to be worthless.

In Clancy v. Kenworthy, supra, it was held to be no •defense to show that the acts were done maliciously; but we do [not propose now to go that far. This petition charges that the act was done maliciously, but it also charges that it was unlawfully and wrongfully done, and for the express purpose of attempting to re-arrest the plaintiff. It would be improper to sustain the demurrer to the petition when it sets out a right to recover on other grounds although it alleges that the officer acted maliciously. In deed, the allegation that he acted maliciously is inconsistent with the allegation that he did the act of shooting for the express purpose of re-arresting the plaintiff, and it might be rejected as surplusage. It may be possible that for his malicious acts, that is for an intentional act of ill-will — as if with no design to re-capture the plaintiff, but for the pur pose of maliciously injuring him in revenge for his flight, he maliciously shoots and wounds him, the bondsmen would not be. responsible for it. It is not necessary to dispose of that proposition now, and we do not attempt to decide it. It is sufficient for us to hold that this petition declares a cause of action against all of the defendants named, and the court erred in sustaining the demurrer and dismissing the petition.

W. F. Lones and W. S. Poits Attorneys for Plaintiff in Error.

Judgment reversed, and cause remanded.


text:
    (Seventh Circuit—Jefferson Co., O., Circuit Court
    May, Term 1891.)
    Before Woodbury, Frazier and Laubie, JJ.
    THE FIRST NATIONAL BANK OF SMITHFIELD v. THE WHEELING, LAKE ERIE AND PITTSBURG COAL CO,. et al.

      Levy on land in other county — Entry on Foreign Execution Doclcet — • Effect.

    1. If a judgment is entered in one county, and an execution issued thereon to the sheriff of another county, and by him levied upon lands in his county, and such execution and levy are duly entered upon the foreign execution docket as required by see. 1212, Rev. Stat., such judgment thereby becomes a lien upon such lands,and such lien will continue for the period of five years from and after the date of such levy as against subsequent purchasers from the execution debtor, notwithstanding such sheriff returns such execution without further proceedings, by order of the judgment creditor.

      Levy on land subject to prior lien — Purchase after levy.

      2. If, at the time of such levy, such lands are covered by prior liens, a beneficial sale on such execution could not be made, and it would be necessary for the judgment creditor to bring suit against all the parties interested to marshal the liens, and for a sale of the lands, before sale could be had ; and if, after such execution was returned as aforesaid, and before such suit was brought, and before all such prior liens were extinguished, the defendants purchased a part of such lands from the execution debtor, such defendants would take the same subject to the lien of such judgment.
    Appeal from Court of Common Pleas of Jefferson county.
   Laubie, J.

This cause comes into this court by appeal, and was heard upon a demurrer to the petition.

It is an action brought for the purpose of determining priority of liens, and enforcing the lien of a judgment on the part of the plaintiff against George E. Medill, and selling the coal underlying a farm in this county.

The petition alleges the obtaining of the judgment during the April term, 1888, in Franklin county, Ohio, upon which an execution was issued June 19, 1888, to the sheriff of this ■county, and by him levied on the land June 21, 1888, and which was entered by him and set out in full on the foreign execution docket on the same day. The sheriff thereupon returned the execution, without further proceedings, by order of the plaintiff, the execution creditor.

• At the time of the levy there was a mortgage on the land ■of |6,700, and on November 2, 1888, the mortgagee released the coal underlying the land from the lien of the mortgage; and on March 30, 1891, the surface and all the land but the coal was sold at judicial sale and the proceeds applied to the payment of the mortgage and other liens superior to plaintiff’s, and exhausted. On December 19, 1888, the execution debtor sold the coal at private sale to one Hahn, and, a few days thereafter Hahn sold the same to the defendant,. The Wheeling, Lake Erie & Pittsburgh Coal Co.

By reason of this sale of the coal, and of other liens thereon, the plaintiff, on September 3, 1892, brought this proceeding to establish its lien as against the Coal Company and the other defendants, and for a sale of the coal, setting1 out all these facts in full. The coal company filed a general demurrer to the petition.

This is all that is necessary to state of the facts alleged in the petition, for the disposition of the questions before us.

The point made is. that the execution having been returned, under the orders of the plaintiff, without further proceedings, the levy created no lien upon the lands or the coal, and that to hold it a valid lien would be a fraud upon the purchasers; and to sustain this claim, counsel for the Coal Company rely upon Sturgeon v. Hull, assignee, et ah, 8 C. C. R. 269; in which it was held: “Where an ’execution is issued to a foreign county, with instructions to the officer that when real estate is levied upon it shall be returned after levy, and no further action had to enforce collection, a mortgage executed subsequently to the levy will have priority.’’

The court say, p. 276: “The statute, however, provides-what the officer must do when the levy is made. That is,, he must have the real estate appraised; and such appraisement must be returned forthwith to the clerk of the court from which the writ issued. It is then the duty of the officer to advertise the premises for sale. After the premises-are offered for sale, the officer is required to make due return of the writ with all his proceedings thereon.

“If the execution is returned and the property not sold, section 5405 provides: ‘Other executions may be issued to> sell the same. ’

“It appears: First — That if the provisions of the statute are interfered with,and the officer is controlled by the creditor,no further action can be had under the levy. An execution is placed in the hands of an officer to enforce the execution of a judgment, and not merely to secure a lien. The statute directs what the officer shall do. If the creditor waives his right to proceed under the statute, he cannot then claim a priority over subsequent mortgagees.Í^In other words, he cannot use the execution laws to create a mortgage lien. ”

And on page 277, the court say:

“The Supreme Court of Alabama, in Alabama Gold Life Insurance Co. v. McCreary, 65 Ala. 127, held: ‘When an execution is placed in the hands of a sheriff with instructions not to sell until further orders, it is not in his hands for any effective purpose, and its lien is postponed to that of any subsequent execution creditor, while the older exeecution is thus kept dormant. The attempt to fasten and preserve a lien by'such method is a constructive fraud on creditors and subsequent purchasers,and postpones the supposed lien thereby attempted to be created, to the lien of any subsequent execution creditor, who establishes his lien while the older execution is kept dormant. ’ The views entertained are fully recognized in Freeman on Judgments, 206.”

The foregoing are the authorities relied upon in Sturgeon v. Hull, supra, for the holding in that case.

Questions of this character depend so largely, in their determination, upon the terms of the particular statute, that but little aid can be had from the decisions of other states. In many states judgments are not made liens upon lands at all. .And such seems to be the case in Alabama, as to lands in the county where the judgment is rendered. The lien, in such cases, seems to attach to the execution. Their code provides that the writ is a lien on the lands in the county from the time it is received by the sheriff, and continues as long as a writ is regularly issued and delivered to him without the lapse of an entire term. As^to lands in another county, it provides that if a certified abstract of the judgment is filed and registered in the probate judge’s office of such other county, such judgment shall be a lien on the lands in such county for the period of ten years, and shall be notice thereof to all persons.

No lien can be obtained on lands in the county where the judgment was rendered except by the delivery of an execution to the sheriff, and under the holding in the case cited, Alabama Gold Life Ins. Co. v. McCreary, it lasts only long enough^for the sheriff to sell the land,

The very object and purpose of the statute, it seems to me, is defeated by such holding, and the judgment creditor cannot obtain a lien under the statute that he could not obtain without the statute. As to lands in other counties, as we have seen, the creditor, by filing the abstract of the judgment, as heretofore stated, may fasten a lien upon such lands for the period of ten years. Truly a peculiar state of affairs; and sufficient to show that the extent, duration and effect of judgment liens under our statutes cannot safely be determined by Alabama law.

The reference in Sturgeon v. Hull, assignee, supra, to Freeman on Judgments, I think may be a mistake. Neither at page 206, nor section 206, of that work, is the question noticed, and I do not find it discussed in the book. I think the reference intended must be Freeman on Executions, sec. 206. In that section, and in the chapter of which it is a part, the author treats of the lien of executions, but not of the lien of judgments. These are two separate and distinct things, and the law applicable to the one has little or no application to the other. The one relates almost exclusively to personal property, and the other to real property.

“At common law a fi. fa. was a lien upon the personal property of the defendant from its teste. This might be the first day of the term, and hence long anterior to the issue of the writ, and to the actual rendition of the judgment. ” Ibid,, sec. 199.

“But as the object of the lien is to prevent the transfer of property liable to be taken under the writ, the general rule is, that the lien continues while the writ remains in force, so that the property may be taken and sold under it, and no longer.” Ibid., sec. 202. And in said sec. 206 it is stated that, “By the statute of 13 Elizabeth, 0. 5, executions taken out to hinder, delay or defraud creditors or others” are as against such persons, utterly void, and that “there is no lien while the writ is not being executed in good faith,’ etc.

And this doctrine, with respect to the lien of executions upon persona] property, when the writ is not being executed in good faith, has been enforced in this state. If there is unreasonable delay and bad faith, or the sheriff made but a paper levy, the lien may be lost. And the reference made by counsel to Acton v. Knowles, 14 Ohio St. 18, is of that character. There the writ was levied upon a stallion which was left in possession of the judgment debtor for eleven months, who farmed him out, and made a profit from his services for his own benefit under an arrangement with the sheriff. The doctrine applicable to the seizure of personal property, and its subsequent application to the satisfaction of the judgment,is essentially different from that in relation to lands. The seizure of personal property must be actual, and the possession retained in order to hold the lien; and the officer cannot hold possession-of it indefinitely, but must bring it to sale within a reasonable time; and the lien is lost if he relinquishes possession. “A levy upon chattels is a satisfaction while the levy remains in force, but only a sale of the lands under levy is a satisfaction.” Reynolds v. Rogers, 5 Ohio, 169.

We are not called upon to consider the question of the lien of executions upon personal property, but the effect of judgment liens upon land, how acquired, how enforced, and their extent and duration, as regulated by the statutes of this state.

Section 5374 of the Rev. Stat., provides, “Lands and tenements, including vested interests therein, and permanent leasehold estates renewable forever, * * * * shall be subject to the payment of debts, and shall be liable to be taken on execution and sold as hereinafter provided,” and section 5375, provides, “Such lands and tenements, within.the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered; but judgments by confession, ■and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered; and all other lands as well as goods and chattels of the debtor shall be bound from the time they are seized in execution.”

This is the only section of the statute which gives to judgments originating in the court of common pleas, in actions for money, a lien upon lands, and it provides, first, for liens upon lands within the county where the judgment is rendered ; and, secondly, for liens upon lands other than those, to-wit:°lands in other counties.

The rendition of the judgment makes it a lien upon, or binds, the lands in the county from the first day of the term.

Upon lands in another county it- makes the judgment a lien, or binds them, from the time the lands are seized in -execution. It does not make the execution a lien, it makes the judgment a lien in each instance. The reading of the -statute in effect is, the judgment shall bind the lands from the time of the rendition of the judgment, or when they are seized in execution.

In Davidson v. Root, 11 Ohio, Wood, J., says, p. 100: “ Judgment liens are of a purely legal character. * * * * Their creation, extension and continuance depend entirely upon statutory provisions. Their operation, as a part of the remedy to enforce the collection of a debt, is governed by the terms of the statute. That the lien may attach, it is certain, that, by the statute, the land must be in the county where the judgment is rendered, at the time of its rendition; or, if in another county, there must be an actual levy.”

The statute then under consideration was in the very words of section 5575, Rev. Stat., quoted above, and Judge Wood speaks only of the judgment as the thing to which' the lien may, under the statute, attach, whether the lands lie in another county or not. The language of the statute that creates the lien is peculiar: “Such lands and tenements within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term, * * * * and all other lands shall be bound * * * * from the time they are seized in execution;” and in the latter instance, in order to complete the sense, the words “for the satisfaction thereof” are to be implied after the words “shall be bound.”

It is true these words apply as well to goods and chattels, but the difference in the nature of the property, and in the requisites of a seizure in execution of personal and of real property, and in the effect thereof, call for the application of different principles in considering the effect of delay in the sale of property so seized.

The judgment, therefore, when execution under it is levied upon lands in another county, is a lien upon such lands,and to make the lien a matter of public record, and notice to all persons, section 1212, makes it the duty of the sheriff to enter in the foreign execution docket all foreign executions, from what court and county issued,the date and amount of the judgment, a full description of the land levied on, and his return on the writ.'

In Moon v. Rittenhouse, 15 O. St. 315, the court held that the lien of the judgment on lands in another county, secured under the statute by levy thereon, continued, with its priority, as against other lienholders, and on appeal, although instead of proceeding to sell under the writ, the judgment creditor had it returned, and then brought a suit in equity for a sale of the property as a more adequate remedy, because of prior mortgage lien.

The statute in regard to appeals, provides that “the lien of|fhe opposite party on the real estate of said appellant, created by said judgment, shall not be, by said appeal, removed or vacated,” and the court held: “The language of this section seems clearly to express an intention that the statutory security which the creditor has acquired for the satisfaction of his judgment, should remain wholly unimpaired by the appeal, and no reason is perceived for discriminating between liens created by the rendition of judgment and those arising from seizure in execution,” and that

“As the levy of Emmitt was first made, his judgment thereby acquired a priority of lien” over other judgment creditors who subsequently levied on the lands.

This is substantially decisive of the question, because there is no exception in the statute which requires the sheriff after levy to proceed to appraise and sell. If that requirement is absolute, and the omission to do so, by direction of the execution creditor, a fraud on subsequent purchasers and creditors, the reason for such direction by such creditor is immaterial, and can create no exception, in the absence of actual fraud.

A levy upon lands may be a mere paper levy.

In Morgan v. Kinney, 38 Ohio St. 610, it was held:

“First — No entry by the sheriff upon real estate is necessary to constitute a valid levy thereon.

“Second- — -The levy of an execution from another county, when indorssed on the execution, and before entry thereof, as required by the act of 1860 (2 S. & C., 1402; Rev. Stat., sec. 1212), is complete.”

Lonwgorth, J., in the opinion, says: “Was this levy then a valid one? Clearly it was, unless under our statute the expression ‘seized in execution’ shall be construed as making an actual seizure of some kind essential.' In Gwynne on Sheriffs, 308, the law is stated thus: No entry by the officer on real estate is necessary to constitute a levy. The officer may remain in his own office and not even go within view of the land. He need not seize upon any twig, turf, or other part thereof as symbolical of the whole. His indorsement upon the execution of a levy, will constitute one to all intents and purposes. ’ From the time that a valid levy is made, the land is in a legal sense seized in execution —that is, rendered liable for its satisfaction.”

From that moment the judgment, not the execution, becomes a lien upon the lands. How long does it continue? Section 5380 provides: “If execution on a judgment rendered in any court of record in this state, or a transcript of which has been filed as provided in section 5377, be not sued out within five years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the time of sueing out another execution thereon, such judgment shall become dormant and shall cease to operate as a lien on the estate of the judgment debtor. ”

The statute makes no distinction between judgments that have become liens upon lands in the county where rendered, or in another county. All are alike covered by this section, and their liens continue for five years, and may be continued indefinitely for other five years by the issuing of executions within such periods.

If this section does not apply to the character of a case before us, where the execution was levied and the lien obtained upon lands in another county, then there is no limit to the duration of the lien, except as to other judgment creditors. Having once obtained the lien, unless there is some law to limit its duration, it becomes perpetual.

In Patton v. The Sheriff of Pickaway County, 2 Ohio, 398, the question came up as to liens under the act of 1824. Judge Hitchcock,in rendering the opinion, says, page 399:

“The lien which is thus created, is by subsequent provisions of the statute regulated as to other bona fide judgment creditors: as to all the rest of the world it appears to be perpetual. ’

And in Davidson v. Root, supra, Wood, J., p. 100, says: “The lien being given by express provision, although it is admitted as a part of the remedy, to be within the control of the legislature, must, nevertheless, remain until lost by the act of the judgment creditor, or taken away by subsequent legislation.”

In Free. onJudgm., sec. 383, it is said: “The lien of the judgment never becomes dormant until it expires by the limitation imposed by statute.”

But in our opinion, said section 5380, does apply to cases of this character; it is general, and applies to all judgments, and limits the duration of their liens to five years unless an execution be sued out as provided therein.

In Kelly v. Vincent, 8 Ohio St. 415, a judgment was taken in Geauga county, March 31, 1846, and execution issued to the sheriff of Cuyahoga county April 3, 1846, which did not go into the hands of the sheriff at all. On October 28, 1846,an alias fi. fa. was sent to Cuyahoga county and levied upon the lands of the judgment debtor, and returned without appraisal or further proceeding. On August 18, 1851, a vend, exp. was issued and sent to the attorneys ofthe plaintiff and returned by them without having been delivered to the sheriff. On March 12, 1855, an al. plu. vend. exp. was issued to the sheriff of Cuyahoga county, and by him returned with an appraisal of the lands levied on; and on April 24, 1855, the alias was issued upon which the land was sold.

Three executions were all that appeared upon the foreign execution docket in Cuyahoga county, to-wit: those of October 28, 1846; March 12, 1855, and April 24, 1855.

Sutliff, J., says: “The question presented to the court is whether five years intervened between the 28th day of October, 1846, the date of the writ which was levied on Kelley’s lands, ‘and. the time of suing out another writ of execution’ on said judgment. ”

There was no appraisal and no attempt to sell under the alias fi. fa. of October 28, 1846, but the court assum'ed that the levy made the judgment a lien on the land from the date •of such levy, and which still existed if an execution was sued •out within five years from the date of such alias fi. fa.

But the court held that the judgment was dormant at the •time of the issuing of the vendi. exp. of April 24, 1855, and upon which the lands were sold, because the suing out and •delivering to the plaintiff’s attorney the vendi. exp. of August 18, 1851, was not a suing out an execution within the meaning of the statute, as it had not been delivered to the ■sheriff, and therefore more than five years had intervened -between the date of the last execution previously issued, to-•wit: the execution of October 28, 1846, and the time of suing out the next writ of execution. And the court gave as a reason for such holding, p. 422, that “The reasonableness of this interpretation of the provision of the statute is well illustrated by this case. By reason of the vendi. exp. not having been delivered to the sheriff, no evidence was afforded to those interested in ascertaining the continuance of the judgment lien aquired by the levy of the execution of Ociober, 1846, until the vendi. exp. of March 12, 1855, was ■delivered to the sheriff. ’ ’

There is another limitation, with reference to bona fide judgment creditors. Sec. 5415, Rev. Stat., provides:

“No judgment on which execution is not issued and levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of a debtor to the prejudice of any other bona fide judgment creditor; * * * * and in computing such period of one year, the time covered by an appeal of the case, or by an injunction against the execution, or by proceedings in error, or by a vacancy in the office of sheriff or coroner, or by the inability of such officers, shall be excluded.’’

In this way a judgment creditor may lose the benefit of his lien, but not by neglecting to sell after a levy. He levies to maintain the lien, and the lien remains for five years, and it cannot be taken away from him except by another bona fide creditor, and then only under the provisions of this section. The provisions of sections 5389 and 5390, Rev. Stat., which require the officer, after levy, to appraise, advertise and sell the lands, applies equally to all cases of levies upon lands whether in the county where the judgment was rendered or in another county, and if the lien is lost by delay after levy in the one case, it is lost also in the other,, and it presents a new, if not a startling, proposition. But sec. 5415, applies only between judgment creditors, and we need not decide what effect a delay in the sale would have between them. Indeed, sec. 5391, would strip the question of all force, if two thirds of the appraised value of the land levied on equaled the amount of the judgment and costs. This case is between a judgment creditor and a subsequent purchaser, and as against him this lien exists for five years, and he buys at his peril. Bank v. Baldwin, 3 Ohio, 65; Myers et al. v Hewett et al., 16 Ohio, 449; Fitch v. Mendenhall, 17 Ohio, 578.

Sec. 5415 requires the execution not only to be issued, but levied; but sec. 5380 only requires the execution to be issued; and as against all the world but other judgment creditors, a judgment creditor may preserve his lien on the lands in the county where the judgment was entered almost indefinitey, by merely suing out execution within every period of five years, with directions to the sheriff to return the same without levy. If he may do this without incurring the imputation of fraud, how does it alter the case that the sheriff may have made a levy upon the lands? Upon what principle does the failure to proceed under the levy make that fraudulent which would be legal if no levy had been made ? Or, is the lien given by the statute conditioned upon not levying the executions issued to keep it alive? And if such creditor may almost indefinitely, by the issuing and return of executions, preserve the lien of his judgment on the lands in the county where the judgment was entered,' without fraud upon subsequent purchasers or mortgagees, it would not seem to be consistent therewith to hold that where he proceeded under the statute to obtain a lien upon lands in another county, it would be a fraud upon such persons if he did not at once follow up the levy by a sale.

The suing out an execution is the very means provided by the statute for the extension of the lien for another five years, and as that compels a delivery of the writ to the sheriff, if the officer must then proceed to appraise and sell, how is the judgment creditor to obtain a lien for five years longer? If such is the law, then the very means by which only such creditor can obtain such extension, suffices to defeat it. It cannnot be said that it was designed to apply only to cases where a sale could not be had at law, because there is no such limitation in the act. It is as general as the provision for the lien of the judgment.for the first five years, and must receive the same construction in this regard.

And generally, we think, the intention of the statute is to give to a judgment creditor the same lien upon lands in another county after levy, with the same incidents and right of extension, that it gives to him upon lands in the county where the judgment was rendered. We see no cause for discrimination between the two.

Of course, all judgments and levies are open to attack for fraud. If a levy is made or held with intent to hinder, delay or defraud other creditors, such judgment is liable to attack, but.the fraud must be proved. It must be an actual fraud, and not one deduced simply from the fact that the judgment creditor is lenient towards his debtor, and does not force the sale of the property.

J. M. Ooolc and B. Q-. Richards, for defendants.

A. H. Battin and J. A. B. Wood, for plaintiff.

The demurrer is not well taken for another reason. Hahn bought the minerals December 19, 1888, and but little more than a month after the minerals had been released from the-lien of the mortgage, and at no time until after the prior-judgment liens were satisfied by a sale of the surface under the mortgage in March, 1891, could the plaintiff have sold the minerals upon execution. On account of these prior subsisting liens, which a sale upon plaintiff’s execution would not discharge, or in any way injuriously affect, a beneficial sale could not be made, and would be contrary to law. The plaintiff would be required to go into a court of equity, making all the prior lienholders parties, and there obtain a marshaling of the liens, and order to sell. Moore v, Rittenhouse, supra; Dempsey v. Bush, 18 Ohio St. 882.

The rights of the parties are to be determined as they existed at the time of the purchase by Hahn; and as to him, and his grantee, the plaintiff could commence a proceeding-like this at any period while its judgment lien was in force, and the delay would not prejudice its rights against the defendants, nor increase their’s against the plaintiff. The demurrer must be overruled.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    CHARLES E. ILIFF v. THE WESTERN-SOUTHERN LIFE INS. CO.

      Bond for agent’s fidelity — Change in character of employment — Sur ety’s liability.

    Where a bond to an insurance company is given to secure, the fidelit} of an agent in a certain employment specifically set out and described, but the bond contains the addition, “during his employment by said company in whatever capacity in which he may be engaged, the duties and emoluments of which may be changed from time to time by the company without notice to the sureties, ” and such agent is afterwards employed in a wholly different position with increased responsibilities, and under an entirely different contract, the surety does not remain liable for default under such new contract and arrangement.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

This action was brought by the Insurance Co. against Osborn & Iliff. The petition alleged that on March 23, 1888, Osborn as principal and Iliff as surety, duly executed to the. plaintiff their bond, a copy of which was set out, and alleged a breach of the conditions thereof, and that Osborn had failed to account for $161.62 received by him for the Company between September 30 and October 9, 1893, and asked for a judgment for $100, the penalty of the bond.

The defendant, Iliff, filed an answer and an amended answer to the petition. By the amended answer he set up as a fifth defense, in substance as follows: That long before the date of October 9, 1893, when the shortage in Osborn’s account had occurred, the defendant Iliff had been released from liability on said bond by the act of the plaintiff in this way: That when the bond was executed by him as surety for Osborn, the latter was employed by the said company as a soliciting agent for said company under a contract, the sixth condition of which is set forth in the bond attached to the petition. That under said contract the duties of Osborn were simple, and his responsibilities small. But that after the signing of said bond in 1889, and long before the breach complained of in 1893, the said plaintiff, without the knowledge or consent of the defendant,entered into a new contract with Osborn placing him in a more responsible position, removing him out of the state of Ohio, and making him superintendent of a branch office, when instead of being a mere solicitor for insurance, making his report each week to the plaintiff, he was placed in the control of a large number of soliciting agents, where his duties became of a much more responsible nature, and his liabilities to the plaintiff were greatly enlarged.

The bond in its essential features was as follows: After stating that the makers were bound to the company in the sum of $100, it proceeds thus:

“Whereas the above named Company has appointed the party first named above as its agent, under an agreement of which the following is the sixth condition: That the total amount of weekly premiums in the Life Policy Register, after deducting the total weekly premiums in the Lapsed Policy Register, are to be credited to my account on Monday of each and every week; the balance shall be considered as having been absolutely received by me on behalf of the Company, and the said Company shall not be bound to prove that I have received the premiums from each particular policy holder; and the said agent owes various other duties to said Company under his agreement. Now, the condition of this obligation is such,that if the party first named above shall in all respects well and truly serve the Company as such agent during his continuance in office, and during his employment by the said Company in whatever capacity in which he may be engaged, the duties and emoluments of which may be changed from time to time by the Company without notice to the sureties, and shall duly and properly ■account for and pay over to the Company all moneys which under the sixth condition aforesaid he is held to have received for the Company, and shall duly and properly account for and pay overall other sums of money or property which may come into his possession belonging to said Company, and shall upon the termination of his agency, from whatever cause, deliver to the said Company all the money, books, accounts, papers and other property which shall be in his hands belonging to the said Company, or connected with, or growing out of said agency, to such person or persons as the said Company shall order and direct, then this obligation shall be void; otherwise to remain in full force. ’ ’

THlf question then that arises is, whether the demurrer to this^answer was properly sustained by the Court. After consideration, jWe have reached the conclusion that it was not, and that the answer set up facts which constituted a defense to the action. We are aware that there is language in^this bond which gives color to the idea that the obligators bound themselves to respond to any demand which the Company might have against the principal therein, arising not only out of his dealings with the Company in the agency established by the original contract between him and the Colnpany, viz: while he was acting as a mere collecting or soliciting agent here in Cincinnati, but also in any other position in which he might be placed, and though • the duties and responsibilities should be greatly changed.

But we think this interpretation should not be put upon it. To use the language of the authorities, “the liability of a surety is always sirioiissimi juris, and may not be extended by construction beyond his specific engagement.” In this case the appointment of agent was under a specific contract, and he was a mere collector of weekly payments, for which he was to settle every Monday as the part of the contract recited in the bond shows. By the terms of the bond he was to serve the Company aá such agent during his continuance in office, and on its termination turn over all money, etc., in his hands belonging to the Company or growing out of such agency; and though the surety might have been liable for a default of the principal occurring while in the position he was appointed to fill, even if the money which he did not pay over was received by him while discharging other duties imposed upon him, in addition to those first discharged by him, yet the authorities seem clear that if a radically different arrangement was made, as is conceded by the demurrer to have been made here, an appointment to a wholly different position, with increased responsibilities, and under an entirely different contract, the surety does not remain liable for default under the new contract and arrangement. It would be unjust to him if he were so held, and the leaning of the Court should be against such a construction of the contract, if there is room for a different construction, as we think there is here. The cases in 90 N. Y. 116 and 68 Md. 449 are very similar to the case 'at bar, and fully sustain and confirm the views we have expressed.

Keam & Keam, for plaintiff in error.

W. II. Jones, for defendant in error.

The same question arises in other ways in this case, but as the judgment will have to be reversed for error in sustaining the demurrer to the answer, it is not necessary to refer to them. The judgment will be reversed and remanded.