text:
    MECHANICS’ LIENS — CONSTITUTIONAL LAW.
    [Summit (8th) Circuit Court,
    September Term, 1903.]
    Hale, Marnu and Winch, JJ.
    Albert A. Lane v. David W. Thomas et al.
    1. Words Insufficient to Constitute Order Create no Liability, When.
    A telegram from the head contractor to a creditor in terms as follows: “Will be home Saturday or Monday. Meantime McGregor” (the president of the . owner, a corporation) “can pay your last estimate if desired,” is not an order for the payment of money, and never having been accepted as such by the owner, no rights ill favor of the creditor arise under it.
    2. Lien of Subcontractor Under Sec. 3195 Rev. Stat. Superior to Attachment by Another Subcontractor, When.
    The lien of a subcontractor upon property of the owner, for money due him from the head contractor under 95 O. L. 211 (Sec. 3195 Rev. Stat.), which gives subcontractors a lien upon the property of the owner to the extent of any balance remaining unpaid upon his contract with the head contractor, and provides that the lien, when perfected, shall relate ,back to the- date of the furnishing of the first item of the labor, material, etc., under the contract, is superior to an attachment placed upon the property by another subcontractor after the former had entered into a contract to furnish material and commenced work under it, although the lien was not perfected until after the attachment process was served.
    3. Repeal of Sec. 3203 Rev. Stat. Does not Affect Rule' of Law Contained Therein.
    The repeal of Sec. 3203 Rev. Stat., which provided that all proceedings in attachment against the head contractor to subject his interest in the .contract should save and he subject to the claims of subcontractors, does not affect the rule laid down therein, which is the law without any statutory provision on the subject.
    4. Notice Filed by Subcontractor With 'Owner After April 18, 1903, Governed by Provisions of 95 O. L. 211.
    The cause of action of subcontractors against the owner to enforce liens for money due them from the head contractor, accrues, within the meaning of Sec. 79 Rev. Stat., when they file their notices with him as required by the mechanics’ lien law. Hence, notices filed- by subcontractors with the owner after the act of April 18, 1902 (95 O. L. 211; Sec. 3195 Rev. Stat.), went into effect, are governed by that act, which allows ninety days after the work is completed for the filing of such notices, and not by the former law. repealed, by said act, which required such notices to be given within sixty days.
    5. Act of April 18, 1902 (95 O. L. 211; Sec. 3195 Rev. Stat.), Constitutional.
    The act of April 18, 1902 (95 O. L. 211; Sec. 3195 Rev. Stat.), is constitutional, since it cures the invalidity of the unconstitutional law of April 13, 1894 (91 O. L. 135), which gave subcontractors a lien on the property of the owner irrespective of whether there was anything due from the owner to the head contractor or not, by limiting the -lien of the subcontractors on the property of the owner to the amount due from him to the head contractor.
    Appeal.
   WINCH, J.

This case comes into this court on appeal to marshal liens on funds in the hands of an owner of a building and due to his head contractor. The facts in the case are admitted. The fund is insufficient to pay all claims in full. Priority is claimed among the creditors of the head contractor growing out of rights under an order claimed to have been given by him, and involving attachment and mechanics’ liens. As to the order it is in the form of a telegram, and reads as follows:

“July 24, 1902. Kasch Roofing Company.
“Will be home Saturday or Monday. “Meantime McGregor can pay your last estimate if desired.
“D. W. Thomas.”

The Kasch Roofing Company is the creditor claiming this to be an order, D. W. Thomas, the head contractor, and McGregor, president and treasurer of the owner, a corporation. The telegram was exhibited to McGregor; he declared it to be no order, and refused, in any event, to accept it as such.

We do not consider this telegram as, in any legal sense, an order, and never having been accepted as such, no rights in favor of The Kasch Roofing Company arose under it.

As to the liens claimed by way of attachment, at least one attaching creditor, The Akron Brick & Tile Company, served the owner with garnishee process before any notices of the claims of subcontractors under the mechanics’ lien law were filed with the owner.. This creditor was also a subcontractor, and its claim was for material used in the construction of the owner’s building. However, creditors claiming under the mechanics’ lien law, whose claims exceed the fund in the hands of the owner, and would exhaust it, if their liens are superior, before this attachment process was served had entered into a contract with the head contractor to furnish materials and had. commenced their work, although none of them had finished it.

Upon this situation the holders of mechanics’ liens claim priority to the attachment liens under Sec. 3195 Rev. Stat., as amended April 18, 1902 (95 O. L. 211), which gives subcontractors a lien on the property of the owner to the extent of any balance remaining unpaid upon his contract with the head contractor, which lien shall date back from the date of the furnishing of the first item of such labor, material, etc. Granting for the moment that the amended statute applies to this case, we think the contention of the holders of mechanics’ liens is abundantly sustained by authority and upon principle. No refined distinction can be upheld which distinguishes between a lien upon the fund in the hands of the owner due the contractor and a lien upon his property measured by the amount of that fund. If there was any such distinction it would seem that a lien on the property would be superior to one upon the fund; for the owner has rights which are protected by this law, and one of those rights is to apply the funds in his hands due the head contractor to the extin-guishment of liens on his property growing out of the conduct of the head contractor.

Our attention has been called to the fact that the legislature, when it last amended the mechanics’ lien law, repealed Sec. 3203 Rev. Stat., which formerly provided that all proceedings in attachment against the head contractor to subject his interest in the contract should save and be subject to the claims of subcontractors. We think such was and is the law without any provisions of the statute on the subject, and refer to Jones v. Church of the Holy Trinity, 17 N. W. Rep. 362 [15 Neb. 81] ; Thomas Roberts Stevenson Co. v. Guenther, 43 Atl. Rep. 129 [190 Pa. St. 628] ; Finck & Schmidt Lumber Co. v. Mehler, 43 S. W. Rep. 403 [102 Ky. 111]; Holbrook v. Ives, 44 Ohio St. 516 [9 N. E. Rep. 228]; Tuttle v. Montford, 7 Cal. 358.

It was said in the last cited case:

“The lien of a mechanic, artisan and material man is favored in law because those parties have in part created the very property on which the lien attaches.”

We do not think the legislature, by its last amendment, intended to depart from its policy to favor mechanics and material men. That policy is distinctly shown by the legislation of this state on the subject. To give to the repeal of Sec. 3203 Rev. Stat. the effect contended for by counsel for the attaching creditors would be to nullify the beneficent provisions of the mechanics’ lien law, and to relegate mechanics and material men to the remedy of attachment; for if one attaches all must diligently do the same or lose their rights.

As intimated above, a third question remains for determination. There is a dispute among the creditors claiming under the mechanics’ lien law whether the old law or the new law, as amended April 18, 1902, applies. The old law required notice to be given the owner within sixty days of the completion of the work; the new law allows ninety days for such notice. Some of the subcontractors gave notice within sixty days, and others availed themselves of ninety days. If the old law applies, only those who gave notice within sixty days have liens. If the new law applies all claiming- under such liens pro rate in the fund. The notices served on the owner by the subcontractors were all served on him after April 18, 1902, the date of the passage of the amendment, on which date it took effect. Some of the claimants made their contracts and began work thereunder before that date, and some after. All finished their work after said date. But in the view we take of the law it is immaterial when they began work. We hold that the cause of actioil in favor of the claimants against the owner accrued, within the meaning of Sec. 79 Rev. Stat., when they filed their notices with him as required by the mechanics’ lien law. As all these notices were given after the amended law went into effect, they had ninety days after completion of their work within which to give such notices. This conclusion is in harmony with the opinion in the case of Kloeppinger v. Grasser, 25 O. C. C. 90, delivered by Judge Parker in the Lucas county circuit court on July 3, 1903, but not yet published.

It was claimed on the hearing that the act of April 18, 1902, in so far as it gives a lien on the property of the owner to subcontractors, is unconstitutional for the reasons stated in the case of Palmer v. Tingle, 55 Ohio St. 423 [45 N. E. Rep. 313]. We do not think the latter case applies. The law of April 13, 1894, therein considered, gave such lien to subcontractors irrespective of whether there was anything due from the owner to the head contractor or not. The law of 1902 cures the invalidity of the' law of 1894, and limits the lien of the subcontractors on the property of the owner to the amount due from him to the head contractor. We hold the act of April 18,1902 (95 O. L. 211; Sec. 3195 Rev. Stat.), is constitutional and valid.

Decree may be drawn according to the foregoing holdings.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    CONTRACTS — EVIDENCE.
    [Fairfield (5th) Circuit Court,
    1903.]
    Voorhees, McCarty and Winch, JJ.
    (Judge Winch of the Eighth Circuit sitting in place of Judge Donahue.)
    Cleveland Punch & Shear Works Co. v. Consumers Carbon Co.
    1. Allegations in Cross-petition as to Special Damages from Breach of Written Contract Competent, When.
    Allegations in a cross-petition in an action to recover a balance due upon a written contract for the sale of machinery, which, after setting up the failure of the -machinery to comply with the guaranties in the contract, aver that defendant was engaged in building a factory and was expending a large amount of capital in grounds, buildings and in t’lle employment of expert operators; that said machinery failed to comply with the guaranties of certain strength, size and weight required for the successful operation of such factory, which plaintiff agreed, by written contract, to supply; that plaintiff, professing to comply with its contract, delivered to defendant certain machinery, and defendant expended large sums of money in attempting to use same, and that, by reason of the foregoing, defendant could not fully operate its 'plant and lost in large part the use and services thereof to its damage * * *, amount to a claim that the guaranties expressed in the contract were made with express reference to the particular situation of the ‘parties and were such as alone made the machinery suitable for the defendant’s business, and such allegations are proper as giving an oppo'rtunity for the introduction of testimony as to special damages sustained by the defendant consequential -upon a breach of the expressed guaranties in the written contract, and not arising from a breach of any implied guaranty.
    2. Rule That Parol Evidence is Inadmissible toVary Contract Does not'Apply, When.
    The rule that parol testimony is not admissible to vary the «tennis of a written ■contract does not forbid an inquiry into the object of the parties in executing it.
    Error to the court of common pleas of Fairfield county.
   WINCH, J.

The motion to strike the bill of exceptions from the files in this case has been granted for the reasons stated in Tatje v. Pettie [unreported].

The plaintiff brought its action in the common pleas court to recover a balance due on a written contract for the sale vto the defendant of three hydraulic mold presses as shown in blue prints in the possession of the defendants, one six plunger horizontal pump as shown by said blue prints, and one accumulator of capacity of power and dimensions to take care of said set of pumps; all of said machinery was to be furnished within three months, it being guaranteed that it should have the. capacity to make 330 impressions per hour on each press and to be of ample strength to stand the-pressure of 6,000 lbs. per square inch, the effective stroke of said presses to be one inch.

It is alleged in the petition that the time for the delivery of said machine was extended by the defendant; that plaintiff delivered the machinery, and that it was as guaranteed in the contract; that the defendant received the machinery, accepted it, immediately put it into use, has ever since used it, and, having paid $2,000 on the contract price, refuses to pay the balance due, amounting to some $1,901.

The defendant filed an answer to this petition, admitting the making of the contract and the delivery of machinery, but denying that the machinery delivered complied with any of the guaranties contained in tjfle contract. While admitting the payment of $2,000, the defendant «"ays that said'payment was made before the machinery could be fsffiy tested, and before it was advised that it was not as guaranteed. The answer also contains a cross-petition, in which the defendant, in addition to setting up the failure of the machinery to comply with the guaranties in the contract, averred, in substance, that it was engaged in the construction of a factory designed for the purpose of manufacturing carbons; that a large amount of capital was being invested in grounds and buildings; that a sufficient number of expert operators had been by it employed at large expense; all of which was well known to plaintiff; that the defendant required certain presses, pumps and other machinery to enable it to successfully manufacture carbons, and without which said machinery could not be operated; that the plaintiff professed to be able to manufacture and supply said machinery to defendant; that the plaintiff knew that the operation of said plant was dependent upon the furnishing of said machinery; that the plaintiff, professing to comply with said agreement, delivered to defendant certain items of machinery, which it represented would comply with said terms, and the plaintiff, relying upon said representations, placed the same in position and expended large sums of money in its attempt to use it; that by the failure of said machinery as aforesaid defendant’s said plant could not be fully operated, and defendant lost in large part the use and service thereof to its damage in the suin' of $20,000, for which it asks judgment against the plaintiff.

A motion'to strike out the above allegations from the cross-petition was made by plaintiff and overruled, defendant excepting. Reply being filed, the case was tried to a jury, resulting in a verdict in favor of the defendant on its c/oss-petition.

In this court the motion to strike the bill of exceptions from the files having been granted, there remains for consideration but one error complained of — that is, the action of the trial court in overruling the motion to strike out said allegations from the cross-petition.

It was urged in support of said motion, and it is urged in this court, that the only purpose for which evidence could be offered in support óf the allegations asked to be stricken out would be to establish guaranties not expressed in the contract — implied guaranties — such as, that the machinery was fit and proper for the purposes to which defendant attempted to apply it.

If it were true that evidence could be offered under the allegations complained of for'said purposes alone, the case would be quite doubtful, but we are of opinion that consequential damages might be shown under said allegations as flowing directly from a breach of the guaranties expressed in the contract. The guaranties expressed all related to the operation of the machinery in a particular business and not to its material and workmanship. It was to have the capacity-of a certain number of impressions, to withstand an enormous pressure and to have a specified effective stroke.

It was designed according to blue prints prepared by the plaintiff and its operation prescribed by it. It is apparent from the pleadings that it was delivered by the plaintiff to be used in defendant’s business, and may not defendant show that the guaranties expressed in the contract were such as alone made it suitable therefor ? The situation of the parties when they entered into the contract may be inquired into. The rule that parol testimony is not admissible to contradict or add to a written contract does not forbid inquiring into the object of the parties in executing it. Brick v. Brick, 98 U. S. 514.

Had plaintiff failed to deliver any machinery at all under said contract, there would be no question as to the relevancy of the allegations complained of. We would then apply the rule laid down'in the recent case of Champion Ice Mfg. & Cold Storage Co. v. Iron Works Co. 68 Ohio St. 229, that consequential damages may be recovered, if the circumstances are known tb the parties at the time of making the contract.

Might not the defendant be able to show, under its allegations that the machinery was not according to the written guaranties, such failure to comply with said guaranties as amounted to a total failure to comply with, the contract? If it could, or if the proof tended to establish such failure of the expressed guaranties as rendered the machinery valueless to the defendant in its business, the allegations complained of would be proper, and the purpose of them would be to give an opportunity for the introduction of testimony as to the special damages sustained by the defendant, said special damages being consequential upon a breach of the expressed guaranties and growing out of a failure to comply with the written contract and not arising from the breach of any implied guaranties as claimed by the plaintiff in its motion.

It would seem that in this case the warranties contained in the written contract were made with express reference to the particular situation of the parties. Such being the case, the allegations in the cross-petition asked to be stricken out would not be prejudicial to the plaintiff. That the cross-petition is open to some criticism on the ground of irrelevancy and redundancy does not make the ruling of the trial judge so erroneous as to require a reversal on that ground. Good pleading excludes the statement of evidential facts, but special damages must be pleaded.

The question as to redundancy and irrelevancy is in general addressed to the discretion of the court, and its decision usually depends upon the nature of each case.” Swan, Prac. & Prec. 219.

In this case we do not think there was such abuse of discretion on the part of the trial judge in overruling the motion to strike out as to require a reversal of the case on that ground, and the judgment is therefore affirmed.


author: MARVIN, J.

text:
    ACTIONS — SUBROGATION—ATTACHMENT.
    [Cuyahoga (8th) Circuit Court,
    March 30, 1903.]
    Hale, Marvin and Raubie, JJ.
    (Judge Raubie of the Seventh Circuit sitting in the place of Judge Winch.)
    Dorr E. Warner, Admr., v. Alice M. York et al.
    1. Probate; Court’s Order may be Basis for Action in Nature of Creditor’s Birr.
    An action in the nature of a creditor’s bill is properly based on an order of a probate court, upon the settlement of an administrator’s accounts, to the administrator for the payment of money, because it is provided in Sec. 544 ' Rev. Stat. that orders for the payment of money made by a probate court may be enforced by .execution or otherwise as provided for the enforcement of judgments of courts of common pleas, and Sec. 5464 Rev. Stat. provides that judgments of courts of common pleas may be enforced by an action in the nature of a creditor’s bill.
    2. Mortgagor Subrogated to Mortgagee’s Rights by Paying ‘ Mortgage Debt.
    Where mortgaged property has been conveyed, and subsequently the mortgagor pays all or a part of the mortgage debt, the payment of which was in terms assumed by the grantee of the mortgagor, the mortgagor is subrogated to the rights of the mortgagee in the mortgage to the extent of such payments, and he thereby acquires an equitable interest in the mortgaged property
    3. Bquttabre and Rife Estates not Merged Upon Payment of Mortgage Debt, When.
    Merger of an equitable estate with a life interest in the same property will not be held to arise on account of payments upon a mortgage debt thereon by the holder of the equitable interest therein where it is to his interest' to keep the mortgage alive.

      4. Equitable Interest in Land Cannot be Attached nor Subjected to Judgment Uien.
    As Sec. 5528 Rev. Stat., which, provides for the execution of an order of attachment, authorizes the levying of an attachment upon lands and tenements only, a mere equitable interest in land cannot be attached ; nor can a judgment against the holder of such an interest create a lien upon that interest as against the land, because the lien of a judgment, under the provisions of Secs. 5374 and 5375 Rev. Stat., is upon lands and tenements only.
    Appeai, from common pleas.
    O. C. Pínney and A. A. Steams, for plaintiff in error.
    Where maker of a note secured by a mortgage was joint owner of the property covered by the mortgage, and transferred the land to the reversioners subject to mortgage, the reversioners thereby became principal debtors, and- the maker thereby was placed in the situation of a surety, and subrogated to the rights of the mortgagee upon payment. Johnson v. Zink, 51 N. Y. 333 ; Marsh v. Pike, 19 Paige Ch. 595 ; Ayers v. Dixon, 78 N. Y. 318 ; Orrick v. Durham, 79 Mo. 174 ; Brown v. Kirk, 20 Mo. App. 525.
    The extension of time by the mortgagee to the grantee of land taken subject to mortgage, without the consent of the mortgagor, will discharge the latter, since the mortgagor under these circumstances is deemed in the situation of a surety merely. George v. Andrews, 60 Md. 26 [45 Am. Rep. 706]; Calvo v. Davies, 73 N. Y. 211; Spencer v. Spencer, 95 N. Y. 353; Filis v. Johnson, 96 Ind. 377, 383; Union Mut. Uife Ins. Co. v. Hanford, 143 U. S. 187 [12 Sup. Ct. Rep. 437].
    Any person having a partial interest in the premises, and whose rights would be prejudiced by the foreclosure of a mortgage, has a right to redeem the mortgaged premises. This rule, without doubt, embraces a tenant for life. Ohmer v. Boyer, 89 Ala. 273 [7 So. Rep. 663]; Crawford v. Carver, 16 Phila. 53; Peck v. Glass, 7 Miss. (6 How.) 195; Twombly v. Cassidy, 82 N, Y. 155, 158.
    The doctrine of subrogation is generally and most frequently applied where the person advancing money to pay the debt stands in the situation of a surety, or is only secondarily liable for the debt, but it is also applicable to cases where the party is compelled to pay the debt of a third person to protect his own rights, or to save his own property. The same rule is applied in those cases where the party paying is merely a tenant for years. Averill v. Taylor, 8 N. Y. (4 Seld.) 44, 51; Hamilton v. Dobbs, 19 N. J. Rq. 227.
    In principle the position of defendant is exactly like the case of one who owns an unassigned right of dower. It is a right which can be asserted, but until it is asserted amounts to merely an equitable interest in the land, and it is held that such a right is not a vested interest that can be reached by execution. Boltz v. Stolz, 41 Ohio St. 540.
    In this case a judgment debtor became the purchaser of land at a judicial sale on June 5, but the deed was not executed and delivered to him until August 1. It was considered that the judgment debtor had an equitable interest in the land from the time of the purchase to the time he got his deed. A judgment creditor of the purchaser caused execution to be levied upon the land July 20. This was held not to create a lien upon the land as the equitable interest, resulting from the purchase at judicial sale, was not subject to levy. Gorrell v. Kelsey, 40 Ohio St. 117.
    The liability of equitable interests in land, to be seized and sold upon execution as land, has never been recognized by this court, as existing either under the territorial or state governments. That it cannot now be seized and sold, is settled both by judicial determination and legislative enactment. Roads v. Symmes, 1 Ohio 281, 314 [13 Am. Dec. 621] ; Baird v. Kirtland, 8 Ohio 21.
    In Haynes v. Baker, 5 Ohio St. 253, 255, the court raises the question, which it does not decide, as to whether, when a person having an equitable interest, is in possession of the land, such interest may be sold on .execution. It has never yet been decided in this state that such interest may be taken in execution, but the contrary has been held.
    Reply to the brief of Mr. Hamilton.
    Distinguished: National Bank v. Coal, Iron & Ry. Co. 62 Ohio St. 564 [57 N. E. Rep. 450],
    Any vested interest in lands whether held by legal or equitable title may be attached and sold as upon execution to pay the debts of the owner. Wright v. Bank, 59 Ohio St. 80 [51 N. E. Rep. 876],
    E. C. Schwan, John C. Hutchins and Sheldon Parks, for defendants in error.
   MARVIN, J.

The facts in this case are as follows:

S. M. York and Alice M. York were husband and wife. On December 26, 1896, they were owners as tenants in common of a parcel of real estate in the city of Cleveland, which is worth about $12,500. On said date the said S. M. York and Alice M. York jointly executed their promissory note for the sum of $8,000, payable one year after its date with interest at six per cent., said note to draw interest at seven per cent, after its maturity. To secure the payment of this note the makers of it at the same time executed a mortgage upon the premises herein-before named, which note and mortgage were delivered to the payee named in the note, and the mortgage was duly recorded. Said note and mortgage are now owned by the Colonial National Bank. After the execution of said mortgage the said S. M. York and Alice M. York executed a quitclaim deed of the same premises to one Gibbons, which deed contained a clause reading, so far as it is necessary for the understanding of this case:

"‘Said premises are conveyed to said grantee above named in trust for the benefit of said grantors and the survivor of them for life, and after their death to their children. * * * Power and authority is hereby conveyed and vested in said grantee above named to execute and deliver a deed in fee simple for said premises to said Standish M. York and Alice M. York for life, and in trust upon the terms and fpr the purpose above named.”

(Standish M. York named in the deed is the same person as the S. M. York hereinbefore mentioned.) The defendants, Blanche York, Milton York and Alice S. M. York are the only children of S. M. York and Alice M. York.

Thereafter said .Gibbons executed and delivered to said S. M. York and Alice M. York a quitclaim deed of the same premises, containing the following clause:

“This conveyance is made to said Standish M. York and Alice M. York and the survivor of them for life, and to them and the survivor of them the fee in trust for their children now born or hereafter born.”

Both of these deeds were duly recorded.

In January, 1898, said S. M. York died, and the defendant, Alice M. York, was appointed administratrix with the will annexed of his estate. Thereafter and while acting as such administratrix she made various payments out of her own money upon the mortgage debt herein-before mentioned. The money -from which these payments were made came to her upon policies of insurance upon her husband’s life, she being the beneficiary named in said policies. The aggregate of the payments made by her was about $3,300. No other payments have ever been made upon said indebtedness.

On July 15, 1899, said Alice M. York was by the probate court removed from her administration, and the plaintiff in this action was appointed to succeed her in said trust, and is still in the performance of his duties under such appointment.

Upon the settlement of the accounts of the said .Alice M. York, of her administration, it was found by the probate court that there remained in her hands as assets of said estate the sum of $23,381.07, and, on January 27, 1900, the probate court entered its order directing her to pay said amount to the plaintiff herein as administrator as aforesaid. This payment has not been made.

On November 27, 1899, the Wick Banking & Trust Company recovered a judgment in the court of 'common pleas of Cuyahoga county against said Alice M. York for $1,672.25.

On December 18, 1899, the American Surety Company commenced an action against said Alice M. York in the court of common pleas of Cuyahoga county, and on June 25, 1900, an order of attachment was issued in said last named action and levied on the premises hereinbefore named. .

On August 3, 1900, the plaintiff filed his petition in this action, and on October 19, 1900, filed his amended petition herein, the same being the petition upon which this case is tried.

On October 25, 1900, execution was issued upon the judgment obtained by the Wick Banking & Trust Company, and this was levied upon the interest of said Alice M. York in thé same premises. Ever since the execution of said mortgage the said Alice M. York has been in possession of said premises.

The petition of the plaintiff is in the nature of a creditor’s bill, and sets out the order made by the probate court as hereinbefore mentioned, the execution and delivery of the mortgage now held by the Colonial National Bank and the execution and delivery of the quitclaim deeds hereinbefore mentioned, and prays that the interest of the said Alice M. York in said premises be subjected to the payment of the plaintiff’s claim.

It is conceded by all the parties that the first lien upon these premises is the mortgage of the Colonial National Bank.

The plaintiff, the Wick Banking & Trust Company, and the American Surety Company each claim that Alice M. York, by the payment which she made upon the mortgage debt, became subrogated to the rights of the mortgagee to the extent of such payments.

The claim of Alice M. York and her children is that there was no subrogation, but that such payments extinguished the mortgage debt to that extent.

On the part of the Wick Banking & Trust Company it is further claimed that the life estate of'the said Alice M. York is a legal estate and that its judgment operated as a lien upon such estate from the date of its recovery.

It is further suggested by said Wick Banking & Trust Company that the estate which it claims that Alice M. York obtained in said premises by the payments made on the mortgage indebtedness was merged in the life estate, and that, therefore, its judgment is a lien upon all the estate which she has in these premises.

The American Surety Company claims that no part of the estate of Alice M. York in these premises is subject to any lien by reason of the judgment obtained by the Wick Banking & Trust Company, and that, in any event, only her life estate could be subject to any such lien, but that the estate which she obtained in the premises by her payments made upon the mortgage debt is an equitable estate only; that it is not subject-to levy of execution, but is a proper subject of attachment and that its attachment creates a lien upon such estate from the date of the levy of such attachment.

The further claim of the plaintiff is that the estate which Alice M. York has in the premises, in any,event, all the estate which she has other than her life estate is an equitable estate only, which is not subject to be levied upon either by execution or attachment. '

It will thus be seen that the first question for consideration is, whether Mrs. York obtained any estate in these premises by her payments made upon the mortgage debt. If she did, was the estate so obtained by her merged in her life estate? If not, can such estate be reached either by the levy of execution, or attachment?

Before entering into a discussion of the questions already suggested, it should be said that we find that the order made by the probate court, upon the settlement of the accounts of Mrs. York, is a proper foundation for the bringing of the present suit. Section 544 Rev. Stat. provides that orders for the payment of money made by the probate court may be enforced by execution or otherwise as provided for the enforcement of judgments of the court of common pleas. Section 5464 Rev. Stat. provides that judgments in the court of common pleas may be enforced by action, such as the present case is.

Mrs. York is one of the makers of the note held by the Colonial National Bank, and is also one of the makers of the mortgage held by that bank as security for the payment of the note; and it is urged that whatever payments were made by her upon this indebtedness, were simply payments upon her own debt, and that she acquired no other interest in tlje mortgage, by making such payments, than the right to have the indebtedness reduced by the amount of such payments. This would, of course, be true if she were still the owner of the premises; it would not be true if the deed made by her and her husband had expressly provided that the mortgage debt should be paid by the grantee.

Authorities are numerous, that where a grantor pays all or a part oí a mortgage debt the payment of which is in terms assumed by the grantee of the mortgagor, such mortgagor is subrogated to the rights of the mortgagee in the mortgage to the extent of such payments. Sheldon, Subrogation Sec. 3; Kinnear v. Lowell, 34 Me. 299; Henson v. Reed, 71 Tex. 726 [10 S. W. Rep. 522]; Baker v. Terrell, 8 Minn. 195.

In this case, it is said in the syllabus:

“A mortgagor who conveys the land subject to the mortgage and who afterward, even voluntarily, pays the mortgage debt, is entitled to be subrogated to the rights of the mortgagee against the land.”

Where the vendee of mortgaged premises assumes the payment of the mortgage debt, the relation, between him and the mortgagor is that of principal and stirety. Poe v. Dixon, 60 Ohio St. 124 [54 N. E. Rep. 86]; Sheldon, Subrogation Sec. 207; Johnson v. Zink, 51 N. Y. 333; Ohmer v. Boyer, 89 Ala. 273 [7 So. Rep. 663]; Averill v. Taylor, 8 N. Y. (4 Seld.) 44, 51.

A surety, being required to pay the debt of his principal, is sub-rogated to the rights of the creditor in any securities pledged for the payment of the debt. 24 Am. & Eng. Enc. Law (1 ed.) 197.

The authorities are not uniform, that where a mortgagee conveys to a grantee the mortgaged premises subject to the mortgage, that payments made by the mortgagor upon the mortgage debt entitle the mortgagor to be subrogated to the rights of the mortgagee, though the weight of authority, and, as we think, the better reason is in favor of such sub-rogation. The reasoning is, that the grant of premises subject to a mortgage constitutes a setting apart of the mortgaged property for the payment of the debt, and that, therefore, the mortgagor is entitled to have the property first subjected to the payment of such debt. It is true that the mortgagor is not relieved from liability upon the indebtedness, but, as between himself and the grantee, he is entitled to have the debt paid out of the avails of the mortgaged property, and, as is well said in the case of Baker v. Terrell, supra:

•“Suppose, however, that the mortgagor, in order to avoid costs, and to save himself the inconvenience attending a threatened or actual litigation, should pay off or purchase the mortgage, why should he be in a worse condition, as regards the right to have the incumbrance charged upon the land, than he would be if forced by an action to pay? Are the undoubted equities which attend the one course wholly lost by pursuing the other? What difference can it make to the grantee of the land subject to the incumbrance, and why should he, in any possible contingency, get the benefit of any one’s purchase of what was an acknowledged charge upon his lands? * .* * It is objected that in such cases the mortgagor, if he pays, is only cancelling a debt of his own. This is true in one sense, but yet the debt is one of which, as between him and a grantee who takes subject to the mortgage, the land is pledged to the payment, before calling on the mortgagor.”

In the present case, the deed made by Mrs. York and her husband was a quitclaim deed which, in effect, is a deed of the premises subject to this mortgage and any other lien which existed upon the property. The grantee, by the terms of the deed, got only such interest as the mortgagor had, and the interest of the mortgagor was subject to this mortgage. It follows, that the interest which the grantee obtained by the deed was the premises subject to the mortgage, and if the grantor pays off the mortgage debt he must either be subrogated to the rights of the mortgagee or his payment must be held to be a gift to the grantee. In this case Mrs. York had an interest by reason of her life estate, which made it important for her that the mortgagee should not foreclose the mortgage; and she might very well have paid the mortgage debt or a part of it to avoid such foreclosure. By doing so, no wrong is perpetrated against the grantee, though she be subrogated to the rights of the mortgagee. The grantees still get just what their deed gave them,— the ownership of the premises subject to the life estate and the mortgage. Their rights are neither increased nor diminished by such payment of the mortgage debt. It. is exactly equitable and just that the ■grantor, when paying, under the circumstances which existed in this case, should be subrogated to the rights of the mortgagee, and we hold that Mrs. York was so subrogated and thereby acquired an equitable interest in this property.

The question then follows: Did the equitable interest thus acquired by Mrs. York become merged in her life estate? Her life estate was a legal estate, she was in possession under it, and the general proposition is, where one who is the owner of' a legal estate acquires an equitable. interest in the same property, such equitable interest will be merged in the legal estate, and so the whole estate will be held by the legal title; but this rule is subject to exceptions. Where it is to the interest of one holding a life estate .and who subsequently acquires an equitable estate in the same premises, that the latter should not merge in the former, it will be held that there is no merger, and one who has an interest in mortgaged premises, which premises are primarily liable for the payment of the mortgage debt, may, for his own protection, pay and be subrogated to the rights of the mortgagee, and the mortgage kept alive for his benefit. Sheldon, Subrogation Secs. 49, 50, 51 and 54.

In the last named section this language is used, under the heading:

“Tests by which merger is determined. — Nor is it necessary that the intent to keep the mortgage alive should 'have been manifested at the time of the payment otherwise than by taking an assignment of the security; unless there appears to have been an intention to extinguish -it, it will be taken to be subsisting or extinguished, as the interest of the party may require. The merger of a charge in the inheritance will not be presumed, if this would be contrary to the interest of the owner of both the charge and the inheritance. The merger is prevented, and the charge or mortgage upheld, whenever there is a strong equity in favor of it, but never where it is not for an innocent purpose. If they are held in different lights, there will be no merger. When a charge on an estate becomes absolutely vested in the owner of the inheritance, the tests usually applied for ascertaining whether the charge has merged, are,' ■first, whether there has been an actual expression of intention to that effect; secondly, whether the- acts done by the owner of the estate are only consistent with the maintaining of the charge, and, thirdly, whether it is for the interest of the owner that the charge should not be merged in the inheritance.”

Numerous authorities are cited in support of - this language of the text. Indeed, the general doctrine is, that a merger will be held to arise only where it is to the interest of the holder of the legal estate that there should be a merger, and we hold, in this case, that there was" no merger of the equitable estate held by Mrs. York on account of payments made by her upon the mortgage debt, with her life estate.

It is urged, however, that the attachment issued on June 25, 1900, in favor of the American Surety Company, and levied upon these premises, created a lien upon all the interest of Alice M. York, whether such interest be equitable or legal.

Section 5524 Rev. Stat. provides that:

“The order of attachment shall be directed and delivered to the sheriff, and shall require him to attach the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, money, and effects of the defendant in his county, not exempt by law from being applied to the payment of plaintiff’s claim, or so much thereof as will satisfy the plaintiff’s claim.”

Section 5528 Rev. Stat. provides that:

“The sheriff shall execute the order of attachment without delay; he shall go to the place where the defendant’s property is, and there, in the presence of two freeholders of the county, declare that, by virtue of the order, he attaches the property at the suit of the plaintiff.”

We know of no case where it has been held that an equitable estate in lands can be reached by the levying of attachment. The statutes authorize the attachment to be levied upon the lands and tenements of the defendant. Surely the interest in these premises which Mrs. York acquired by the payments made by her upon the mortgage debt did not make her the owner of any lands or tenements, and we hold, therefore, that the American Surety Company secured no lien upon this equity of Mrs. York by virtue of its attachment. During the pendency of this suit the surety company has obtained a judgment in the action in which the att-acliment was issued.

On behalf of the Wick Banking & Trust Company, it is urged that its judgment, recovered'on November 27, 1899, created a lien in its favor upon Mrs. York equitable interest 'in these premises.

Section 5374 Rev. StaCprovides that:

“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.”

Section 5375 Rev. Stat. provides that:

“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;” * * *

What has been said in reference to the statutes as to the effect of an attachment upon the interest of Mrs. York in these premises is equally applicable to this claim of the Wick Banking & Trust Company, and we hold that since the equitable interest of Mrs. York in these premises did not constitute them the lands or tenements of Mrs. York, the judgment constituted no lien upon them as against such interest. The execution upon the judgment, having been levied after the bringing of this action, is inferior to the rights of the plaintiff herein.

From what has been said, it follows that the only creditor who has acquired any interest in the equitable estate of Mrs. York in these premises is the plaintiff.

Mrs. York, being a widow, is entitled to exemptions to the amount of $500, in lieu of a homestead.

The order of the court therefore is, that unless Alice M. York shall within ten days after the entering of this decree pay to the Colonial National Bank the amount still due upon its mortgage debt, and pay to the plaintiff herein the difference between the amount so paid to the Colonial National Bank and the amount which would now be due upon the mortgage debt if she had made no payment thereon; and to pay to the Wick Banking & Trust Company the amount due upon its judgment; and pay to the American Surety Company the amount due upon its judgment; and pay the costs of this action; said premises shall be appraised, advertised, and sold by the sheriff of this county as upon execution at law, and out of the avails of such sale he shall pay, first, the costs of this action; second, whatever taxes stand assessed against said premises; third, to the Colonial National Bank the amount still due it upon, its mortgage debt; fourth, to the defendant, Alice M. York, the sum of $500 in lieu of her homestead exemption; fifth, to the plaintiff herein the difference between the amount paid the Colonial National Bank and the entire mortgage debt, if no payment had been made upon it, less $500, and not'in excess of the plaintiff's claim; sixth, to the Wick Banking & Trust Company the remainder of the avails of such sale not exceeding the amount of its judgment; eighth, whatever balance the American Surety Company whatever balance may remain, not exceeding the amount of its judgment; eighth, whatever balance shall then be left to the defendants, Alice S. M. York, Milton York and Blanche York.

The defendants, the Wick Banking & Trust Company, the American Surety Company, Alice M. York, Alice S. M. York, Milton York and Blanche York, each severally except to this decree.


author: MOONEY, J.

text:
    GAS AND OIL — LEASES.
    [Wood (6th) Circuit Court,
    June 26, 1903.]
    Haynes, Hull and Mooney, JJ.
    (Judge Mooney of the Third Circuit sitting in place of Judge Parker.)
    Charles E. Tucker v. John G. Watts et al.
    1. Gas and Oil Lease Silent as to Teem — Rendered Certain by Subsequent Events. ¡

    Where a gas and oil lease, silent as to the length of its duration, is attacked oil the ground of uncertainty, Jf the term may be fixed or established by subsequent 'events agreed upon in the lease, it is sufficient to create the certainty that the law requires. Hence, where a lease provides, that lessee must complete a well within ninety days or thereafter pay a certain sum until completed, and if oil or gas be found the lessee shall deliver to lessor a certain royalty share of all the oil produced, or pay annual rental for each gas well while used, the lease will endure for such length of time as may be reasonably necessary to produce the oil and gas lying in and forming part of the leased premises.
    2. Assignment of Gas and Oil Lease Need not be Filed or Recorded, When— Sec. 4112a Rev. Stat.
    Where a valid gas and oil lease has been duly recorded by the original parties, an assignment thereof by the lessee to a third person, is valid between the parties thereto without filing or record under Sec. 4112a Rev. Stat.

      3. Abandonment of Gas and Oil Lease — Lessee Must Proceed With Diligence, etc.
    Where the term of an oil and gas lease is not specifically stated, and the benefit to be derived therefrom depends upon a reasonable carrying out of its terms, the lessee must proceed thereunder within a reasonable time and with proper diligence; and the removal by lessee of the drilling apparatus from the leased premises and failure to drill wells for a period of five or six years because of an apprehended loss in their operation, coupled with an expression of intention to wait until an advance in the price of oil, and the fact that other lands in the vicinity were actively worked during such period by lessee under another lease, is an unreasonable delay constituting an abandonment, and terminates the lease.
    Appeal from common pleas.
    Gilbert Harmon and Fries & Painter, for plaintiff.
    Baldwin & Harrington and J. O. Troup, for defendants.
   MOONEY, J.

This case comes here from the court of common pleas on appeal. The plaintiff named avers in his petition that he is the owner of a leasehold interest and is in possession of certain lands described, in Wood county, Ohio, for the purpose of producing oil, and that the defendant, John G. Watts, has entered into possession of the lands and drilled thereon and is producing oil and is converting the five-sixths part thereof to his own use. The prayer of the petition is, that Watts be enjoined from such conversion and that the Buckeye Pipeline Company (with the lines of which the tanks upon the lease are connected) shall be enjoined from delivering to defendant the oil produced upon said premises.

The defendant, John G. Watts, files an answer, which is, in substance, a general denial, and then avers that he is the owner of thn leasehold interest upon said lands and prays for affirmative relief.

This averment, of the interest in Watts, is denied in the reply.

From the evidence in the case, as well as from the pleadings (more specific than has been stated), it appears, that on November 21, 1892, Stearns and Ferris, the then owners of the fee of the lands in question,, executed and delivered to Monroe and Harmon a contract, or a lease, covering all these lands; that afterwards this contract was filed for record and was recorded, the date of the filing being April 5, 1893; and after this time Monroe released to Harmon all his interest in -the lands and Harmon afterwards conveyed to the plaintiff in this action the interest, if any, arising and existing under the lease, and it is under this contract that the plaintiff claims. It is evident that the claim or title to relief of the plaintiff in this action must be based upon the validity of the contract originally made and the subsistence of .an interést or estate thereunder at the time of the bringing of this action, and, therefore, the terms and conditions of the contract originally entered into between Stearns and Ferris of the one part and Monroe and Harmon on the other, become, as we think, of controlling importance in the case. By this contract the landowner, for a consideration of $100, grants unto the second party the privilege of drilling for and removing the oil and gas from the premises together with the right to place thereon such fixtures as may become necessary for .the production, transportation and storage of oil or gas and the right to remove such fixtures at the pleasure of said second party. It is provided that if oil be found the landowner shall receive a royalty share thereof of one-sixth of all that may be produced from the premises. Should gas be found, the compensation to the landowner shall be $300 yearly for each and every gas well used and while used. It is further provided, that said Monroe and Harmon shall complete a well upon the premises within ninety days from the date of this agreement, or thereafter shall pay to the first party $25 per month until such well is completed. A well was completed-in August, 1893, and all the rental due, at $25 per month, from the expiration of the first ninety days after the execution of the agreement, was paid. Nothing was found in this well so drilled, and shortly after all the drive-pipe and casing, derricks and all appliances usual and necessary for the drilling of wells, were removed from the premises. Harmon and Monroe had other leasehold interests for oil purposes in the vicinity, and from time to time prosecuted drilling for oil at some distance, and then in the near vicinity of these lands, but from 1893 to 1899 they had never entered upon this land for the purpose of drilling or further prosecuting their search for oil, nor had the plaintiff prior to the bringing of this action, nor any one for either Harmon and Monroe, nor the plaintiff, except that at one time a stake to mark the location of a well to be driled in the future, was driven. There is some evidence (but the fact is in dispute) that both Harmon and the plaintiff, at various times, declared their intention not further to prosecute their search for oil upon the lands described in this petition. And there is evidence tending to show that while Judge Harmon was the sole owner of this (ease, he declared his unwillingness at the time of making the statement to further drill, unless the royalty was reduced, and it is a fact established in the case that Judge Harmon was of opinion and intended to drill only in the event that the price of oil by its advance would justify the drilling to secure the quantity of oil that it was believed could be found by drilling upon these lands-; his conviction- at that time being that oil could not be found in quantity sufficient to make drilling profitable at the then price for which oil could he sold.

The assignment of this agreement by Judge Harmon to the plaintiff in this case was not filed for record, nor recorded. It is contended now by the defendants in this case that this lease is not in force, for the reasons : First, that the assignment has not been recorded, and, therefore, the plaintiff in this case has no title to the leasehold, even though it is still a subsisting interest; second, that this lease was invalid ab initio, for the reason that no term is stated or fixed by its terms; and, third, that if the lease ever were valid, all interest of the plaintiff in the premises has been lost by reason of the abandonment, either by himself or Judge Harmon. ¡

We are of the opinion that, under the terms of Sec. 4113a Rev. Stat, that the assignment of a lease, as between parties sustaining the interests in the lands that these parties do, need 'not be filed for record, or recorded, and that the failure to so file or to so record is an immaterial circumstance in this action. The lease in this case was filed for record and recorded, and, therefore, if the lease were otherwise valid, an interest passed and terms were complied with to some extent, and if the performance of these contract obligations upon the part of Harmon changed or affected or increased the inchoate interest theretofore existing, that interest was vested in him, he was possessed at all events with the interest, and that as to persons, except third persons acquiring an interest in that .interest under Harmon, the title of the plaintiff in this case became valid and subsisting by the act of transfer without filing or recording the evidence of the assignment.

We are not of opinion that this agreement is invalid by reason of the fact that no term is fixed in it. This was a contract that was entered into between the landowner and an oil producer, for the purpose of enabling the oil producer to follow his occupation upon these premises -and produce oil and gas therefrom. A right to possession, at least for this purpose, passed to the oil producer. He had a right to explore for oil, and when he did discover it the contract then would endure for such time as was necessary to accomplish the purpose of the contract, the producer acting with reasonable diligence.

In this case, then, if oil had been found, Harmon or his assignee, would have had the right to retain possession of this land for such length of time as would be reasonably necessary to the production of the oil and gas lying in and forming part of the lands. Now it is a maxim of law that that is certain which can be rendered certain, and the existence of the means of rendering need not attend the formation of the contract, if subsequent events established or fixed the means that had been agreed upon in the contract, that would create the certainty that the law requires. We, therefore, think, that by. necessary implication, the period that this contract was to endure was fixed by the terms of the contract, and that, in consequence, the contract is not subject to the objection in .that respect that is taken to it.

The sole remaining question in the cáse is that of abandonment. It will be observed that by this contract there is granted the privilege of producing oil — the privilege of going into possession of this land for the purpose of exploring for oil is the primary right. This right, the cases are agreed, is not an estate in the' land, and while some difficulty is experienced by the different courts in the adequate'legal expression of just ihe right conveyed, the substance of it is recognized by all. Some of the cases call it a right to possession, and some a license, the terms varying, but all agreeing that to the producer is given the right to go upon the land and make search. No estate or interest in the land itself arises until the product is found, and then the interest becomes vested, and, being vested, may be called as estate.

[ It was evidently the theory of • the original party to this contract (the second party) that, having drilled one well, required by the terms .of this contract, that thereby a perpetual interest was granted, and that if at any time in the future oil should be found, it would become the property of the assignees or of the party who succeeded to the interest of Harmon in this lease. To that construction of the contract, we cannot agree. The contract was entered into for the benefit of both the producer and the landowner, and if oil were found, the landowner was entitled to his share. The time of the enjoyment of this beneficial interest in the contract is something that could not be fixed by the caprice of the driller; it was his right and duty to do the drilling, but it was equally the right of the landowner, within a reasonable time, to enjoy the fruits of this contract so far as he was entitled to them; and so we think that a fair construction of the rights that each of the parties had under this contract is; while upon failure to find oil when the first well was drilled, the interest of the owner of this contract (the producer) would not cease, or be in any manner forfeited, while he still had the right to continue his search, that he was bound to do so within a reasonable time. That is more especially the case where, as here, the duration of the lease is not fixed expressly by its terms. Now, to this contract Ferris was a party. She had no interest in, and no benefit was conferred upon her by, the finding of oil, or its production upon adjoining'lands in the immediate vicinity, or at distances remote; she had the right to have proceedings taken looking to the securing to her of the benefits under this contract, and within a reasonable time.

It is true that oil developments in the vicinity are matters of consequence in cases of this kind, because, having expended money in the completion of a well, the. parties here were justified in waiting a reasonable time for other oil producers, or themselves, upon adjoining lands to cast sidelights upon the oil probabilities in these various lands, but the simple fact of activity', by Harmon or by the plaintiff, upon adjoining lands, would not authorize an undue and unreasonable extension of time for further drilling upon these lands. Now, from 1893 to 1899 no step had been taken looking to immediate drilling upon these lands — six years, with oil wells driling in upon lands within a half a mile, or perhaps a less distance, and nothing to indicate that rights were claimed under this contract. As has been stated, it is quite evident that Judge Harmon was of opinion that oil from these lands could not be produced profitably, and he was unwilling to experiment further upon these lands at the then price of oil, in fact, we take it from the record, as well as from the arguments, that the specific intention was to drill further wells when there was an advance in the price of oil. Now, an intention to drill further wells when there is an advance in price, is tantamount to an intention not to drill further wells until after such advance. The advance in the oil market was a matter that was entirely beyond the control of this lessee; it either might happen within a reasonable time, or it might never happen, and so the intention, so far as there was an intention, was to permit the matter of drilling to go to a time when in the judgment of the lessee the price would justify the expenditure. But, under the terms of this contract, Harmon was bound to drill within a reasonable time, whether the price of oil would make it profitable or .not. This intention, therefore, to drill only when the price of oil would make it profitable, was an intention, not to comply with this contract, but to comply with some other contract which he had substituted for it. His relinquishing of any intention to drill strictly in accordance with the terms of this contract, as well as the lapse of time (which we think was unreasonable) we believe resulted in an abandonment of the interest that accrued to Harmon, and consequently to the plaintiff, under the terms of this lease.

I might say, as tending to support this conclusion, that very recently, in a case unreported, the circuit court of the third circuit held that where nothifig had been done in the way of drilling after the failure of 'the first well, for four years, upon a lease where the lessees had expressly agreed that they would drill another well when a Mr, Geezy, a consumptive, had returned from Ashville, North Carolina, from whence, being an invalid, he never did return, that after waiting four years for his return and drilling no well, it resulted in an abandonment. It is but fair to state, however, that the activity in oil drilling around that leasehold interest was somewhat greater than in this case.

The case of Baumgardner v. Browning, 5 Circ. Dec. 394 (12 R. 73), relied upon here by the plaintiff, we think, so far from being authority to sustain his contention here, is rather, against the plaintiff’s position. In that case, a lease for oil purposes, upon a cash payment of $500, was executed and the term fixed at twenty years, and that was a definite term. It was held finalfy in that case that a failure to drill for a certain length of time did not result in an abandonment or forfeiture of the leasehold interest, but it was not held in that case that the lessee was entitled to the full period of twenty years, but it was, in substance and effect, held that a reasonable time for the doing of further drilling upon the premises had not expired. It is evident from a reading of the entire case, that the court intended to decide the case upon its own particular circumstances; and the court had, I believe, theretofore held in other cases, and where the term of lease was less clearly fixed, and where the territory had been more thoroughly developed for oil purposes, that an abandonment would result. And so it is indicated by the concluding paragraph of that opinion that the case is exceptional and is decided upon its own peculiar circumstances. There it is stated, page 396:

“Now, without in any way infringing upon any rule we have already laid dovp, but deciding this case ag it stands, we are of the opinion that the equities are with the plaintiffs, Baumgardners, and that they still have a fair and just right to hold the exclusive possession of these premises for the time being and at this time, for the purpose of deterr mining whether there is any oil in the land or not.”

And at another part of the opinion, it is said:

“We think the better rule is to say that under this lease the parties have a right to abide, at least for some time, to see what the developments were in the vicinity around and about there.”

If it had appeared that for several years (four or five, or six), upon adjoining lands, oil had been produced, we are of the opinion that the lessee would not have been, excused from drilling and would not be permitted to retain his interest in the absence of drilling, simply because, while oil was found, it was deemed, by reason' of the state of the oil market, that it-would not be profitable to do the drilling. If it is not profitable, there is an easy escape for the oil driller — he may either confer the benefits of the royalty upon the landowner by drilling, or he may surrender his interest in the land, but he has no right, when oil is found in considerable quantities, to decline to produce the oil for the benefit o.f the landowner because, in the condition of the oil market, it would not be profitable for the producer to do the drilling. He may do that, but if he does it he must surrender his interest in the premises.

And so, upon the last case, we find that the lease here was abandoned, and that at the commencement of this action the plaintiff was without title to the interest of the oil lessee, and that in consequence of that finding the decree must be for the defendant in the case. We find that the lease had been abandoned at the time of the commencement of the action.


author: McCARTY, J.

text:
    EXECUTORS AND ADMINISTRATORS — SETOFF.
    Vborhees, McCarty and Winch, JJ.
    [Fairfield (5th) Circuit Court,
    October Term, 1903.]
    (Judge Winch of the Eighth Circuit sitting in place of Judge Donahue.)
    Jacob Claypool et al. v. John R. Claypool, Admr.
    1. Payments on Insurance Policy not Subject of Setoff, When.
    In a proceeding brought by an executor under the statute (Sec. 6100 Rev. Stat.) in the probate court to have a claim1 on a .promissory note allowed and ordered paid, payments made by an insured decedent on a policy of insurance assigned by him to the payee of the note, but which', by virtue of the statutes of descent and distribution (Sec. 4176 Rev. Stat.), inured to the benefit of the insured’s estate, cannot be set off against the note.-
    2. Claim for Payments Made on’Insurance Policy Disposed of by Will.
    A provision in a will, giving to the children of decedent’s wife all interest that he had, as distributee of her estate by virtue of Sec. 4176 Rev. Stat. in a policy of life insurance which he had assigned’ to her in her lifetime, without abatement on account of premiums paid by him thereon after her death, effectually disposes of any claim he may have had on account of such payments.
    ERROR to the court of common pleas of Fairfield county.
    C. W. McClery, for' plaintiff.
    C. D. Martin, M. A. Daugherty and George E. Martin, for defendants.
   McCARTY, J.

This case arose in the probate court and was afterwards appealed to the court of common pleas. The proceeding in the probate court was brought under the statute (Sec. 6100 Rev. Stat.) for the allowance of a claim on a promissory note given by Isaac Claypool in his lifetime for the sum of $850 and interest in favor of Sarah A. Claypool, his wife, in her lifetime.

An answer was filed in this case which raises some issue as to the validity of the indebtedness on the note, and as to the question of the alleged setoffs that are sought to be interposed against the note arising from payments of annual premiums on the policy of insurance which Isaac Claypool assigned to his wife.

The situation from which this whole controversy arose was substantially as follows: In 1866 Isaac Claypool caused to be issued on his own life payable to himself, his executors or administrators, a $10,000 life insurance policy. That policy was drawn under the old form of drawing policies of insurance then existing, which provided that on failure to pay the annual premiums the policy would lapse. After some years Isaac Claypool married Sarah A. Claypool, and in 1883 he assigned to her this policy of insurance by a. written instrument which conveyed to her, her executors, administrators and assigns this insurance policy. Sarah A. Claypool died about 1892 and Isaac Claypool died in 1902. The old gentleman kept up the premiums until he died; so that there was a period of about ten years between the death of Sarah A. Claypool and that of her husband. Had the premuims not been paid at the expiration of any one year, the policy would have lapsed. In this proceeding, which was instituted in the probate court, and afterwards came to the common pleas court, it was sought to recover from the claim made against his estate on the promissory note, the amount of those premiums paid during the period that elapsed from the death of Sarah A. Claypool to the death of Isaac Claypool, amounting in the aggregate to the sum of $2,300. And the claim is made that if these items had not been paid in his lifetime that the policy would have lapsed, and he therefore paid them for the benefit of his own estate, and that these payments made .by him after the death of his wife should operate as a setoff to the note, and also that whatever surplus there was between the payments made by him on those premiums and the amount of the note should be ordered to be paid to his estate by the estate of Sarah A. Claypool.

That brings us to the question as to whether those payments are proper items of setoff; and I may say in passing that there is some serious question as to whether, under the assignment made by Isaac Claypool to his wife of this policy under that written assignment, whether he did not bind himself to keep that policy alive. That question; however, is not before us, and we need not determine it, nor discuss it at all.

Some time after the death of his wife, Isaac Claypool made what is denominated and treated here as a second codicil to his will, and it is contended that has some effect in determining this suit; in other words, that if Isaac Claypool, by virtue of the statutes (Sec. 4176 Rev. Stat.) in that behalf made, is entitled, or his estate is entitled, to recover from the estate of Sarah A. Claypool by virtue of the statutes of descent and distribution, to wit, one-half of the first $400, and one-third of the balance of the personal property, whether he did not deprive himself of that by making a subsequent codicil, or second codicil to his will, and whether he die! not give that part of his property to certain parties therein named as beneficiaries. And I want to call attention first to the assignment of this policy to his wife. It is contended that he having assigned the policy to his wife, had no longer any interest in it; and secondly,,it is contended that if he had any interest in it by virtue of the Statutes of descent and distribution (Sec. 4176 Rev. Stat.), which came to him from the estate of his wife, that he released it by the second codicil to his will.. I want to call attention to those two instruments. The assignr ment reads as follow's:

“For one dollar to me in hand paid, and for other valuable considerations (the receipt of which is hereby acknowledged) -I hereby assign, transfer and set over to Sarah A. Claypool of Lancaster, O., all my right, title and interest in this policy No. 51254 issued by the Mutual Life Ins. Co. of New York, and for the consideration above expressed, I do also for myself, my executors and administrators guarantee the validity and sufficiency of the foregoing assignment to the above named assignee, her executors, administrators and assigns, and their title to said policy will forever warrant and defend.
“Dated in Lancaster, Ohio, this twenty-fourth day of January, 1883.
(Signed) “Isaac Claypool.”

Under this assignment, which conveyed to the wife this policy of insurance, it is contended that at the death of the wife, she being possessed of this policy, that whatever belonged to her at the time of her death would inure under the statutes of descent and distribution to her husband who survived her. Assuming for the moment that that would be the situation, this would be the right of Isaac Claypool to his' distributive share in his wife's property, namely, that he would, under the statutes, receive one-half of the first $400 and one-third of the balance on final distribution. Then what comes next, if that be true? We think this provision in his will, this codicil that T have called attention to, completely, carefully and we might say effectually, takes care of any further questions in this case. Codicil number two is as follows:

“Whereas I, Isaac Claypool of the ninth day of July, 1895, made my last will and testament of that date, do hereby declare the following to be a codicil to the same:
“Whereas, on the seventh day of September, 1866, I obtained a policy of insurance of that date, No. 51254 for the sum of $10,000 on my. own life; and afterwards on the twenty-fourth day of January, 1883, duly assigned and delivered said policy to my then wife, Sarah A. Claypool, since deceased, due notice of said assignment having been given to said company. My belief and intention were and are that her children herein named would succeed to and inherit her interest in said policy. Now to avoid any question or trouble, I hereby ratify said assignment, and furthermore I do hereby give and devise said policy and the moneys therein assured to all the children of said Sarah A. Claypool share and share alike, namely, Frank P. Claypool, John R. Claypool and Ada M. Creighton, without abatement or account for premiums heretofore or hereafter paid by me on account of that policy, and this provision is additional to the devises made in the foregoing will.”

Now let me read a portion of that again:

“My belief and intention were and are that her children herein named would succeed to and inherit her interest in said policy. Now to avoid any question or trouble, I hereby ratify said assignment, and furthermore I do give and devise said policy and the moneys therein assured to all- the children of said Sarah A. Claypool share and share -alike, namely, Frank Claypool, John R. Claypool and Ada M. Creighton.”

It seems to the court that this effectually disposes of all the questions that are in the case; not- only the question as to the payment of the premiums that are sought to be charged to the estate of his wife, that come to his estate, but all other interests that he might have in this policy, including the payments of those premiums that were made by him to keep the policy alive. He says so in unmistakable terms, and I want to observe that this codicil was very carefully drawn. It seems to the court to express every word that ought to be in it; nothing is omitted to cover the intention of the old gentleman in making the codicil. It is well known to the bar generally that the intention of the testator is to be gathered from the four corners of his will. He meant what he said.

“My belief and intention were and are that her children,” (naming them) “would succeed to and inherit her interest in the policy. Now to avoid any question or trouble, I hereby ratify said assignment, and furthermore I do hereby give and devise said policy and the moneys therein assured to all the children of said Sarah A. Claypool share and share alike.”

He gives all the interest he had in that policy by virtue of his estate that would come to him on the death of his wife under the statutes of Ohio. That disposes of the policy, and that disposes of the interest he had' in his. wife’s estate in the policy. He says furthermore:

* * * “without abatement or account for premiums heretofore or hereafter paid by me on account of that policy; and this provision i$ additional to the devises made in the foregoing will.”

In the first place he gives her children the whole policy, share and share alike, and secondly, provides that there shall be no abatement or account for premiums heretofore or hereafter paid.

We think this disposes of the whole matter,.and that whatever estate he had in the policy he bequeathed to her -children share and share alike, not only what he paid out to keep the policy alive, but what came from his wife at her death under the statutes of descent and distribution.

Therefore, we are of opinion that this alleged setoff cannot be main-, tained against the promissory note which was allowed in favor of his wife’s estate.

Finding no error in the judgment of the common pleas court, it will be affirmed without penalty and at the costs of the plaintiff in error.


text:
    INSOLVENCY — FRAUDULENT CONVEYANCES.
    [Medina (8th) Circuit Court,
    October 15, 1903.]
    Hale, Marvin and Winch, JJ.
    Lorinda Boies et al. v. James G. Johnson et al.
    1. Action to Set Aside Fraudulent Conveyances Accrues as Against Sureties at Time of Conveyance. , ■
    Where an insolvent guardian conveys his property to his wife and daughter without any valuable consideration and in fraud of creditors, the sureties on his bond become creditors within the meaning of Sec. 6344 Rev. Stat-. at the time such fraudulent transfers are made, and their right to an action to have these conveyances set aside accrues at that time, although they have- made no payments under their liability upon the bond and no right of action has accrued in their favor against the principal. The action of such sureties to have the fraudulent .conveyances set aside is barred in four years after the making thereof, under Sec. 4982 Rev. Stat., if the fact of the making of the conveyances and of the consequent fraud was known to the sureties when such conveyances were made.
    2. Guardian's Conveyance Will not be Set Aside, When.
    Conveyances of real estate made by an insolvent guardian without valuable consideration will not t>e set aside at the suit of the sureties on his bond where he has retained sufficient property to amply provide for all his debts.
    Error to the court of common pleas.
   MARVIN, J.

Suit was brought in the court of common pleas by the plaintiffs in error against the defendants in error, the amended petition setting.out, in substance, that on December 15, 1890, J. C. Boies was appointed by the probate court of Medina county as guardian of Elmer E. Garman and Sylvia A. Garman, both minors; that he immediately qualified, and acted as such guardian up to the time of his death, which occurred on November 39, 1894; that the plaintiffs below (hereinafter spoken of as plaintiffs) were sureties upon the bond of said J. C. Boies as such guardian; that said guardian received of money belonging to his said wards some $3,800; that at his death he was indebted to his said wards in about that sum; that he died insolvent. Thereafter the said Lura M. Penney was duly appointed and qualified as exécutrix of his will; that said Elmer E. Garman is now of full age, and that Frank Heath is the duly appointed and qualified guardian of said Sylvia A. Garman; that £t the April term, 1897, of the court of common pleas of Medina county, the said Elmer E. Garman, in his own right and Frank Heath as guardian of said Sylvia, recovered a judgment against the said Lura M. Penney as executrix as aforesaid and the said plaintiffs, on account of the money belonging to said wards which was in the hands of the said J. C. Boies at the time of his death, in the sum of $4,003.97, and for costs of suit $15.85; that on October 33, 1897, plaintiffs paid upon said judgment the sum of $1,363.60, and on January 17, 1898, the further sum of $793.50; that said judgment, except to the extent of such payments, is still in full force; that on June 5, 1893, while said guardian was indebted to his said wards in the sum of something more than $3,800, he conveyed to one Thomas A. McCo}’- certain real estate which he then owned, for the nominal consideration of $5,000, but in fact without any valuable consideration whatever; that on the same day the said J. C. Boies conveyed to said Lura M. Penney all the remainder of his property, both real and personal, of any value whatever, wholly . without consideration and by way of gift to her the said Lura M. Penney; that on June 5, 1894, the said McCoy, at the instance and request of said J. C. Boies, and without any valuable consideration whatever, conveyed to the said Lorinda Boies the real estate which had been conveyed to him by the said J. C. Boies as aforesaid; that the said Lorinda Boies was the wife and is now the widow of the said J. C. Boies, and that the said Lura M. Penney is his daughter ahd only heir at law; that said conveyances and transfers of property were made by the said J. C. Boies with intent to hinder, delay and defraud the creditors of him the said J. C. Boies and to prevent said creditors from collecting' their just claims from him. The prayer of the petition is that said conveyances of real estate to McCoy and. from McCoy to Lorinda Boies be set aside and held for naught, and that the said executrix may be ordered to have the same appraised, advertised and sold as a part of the estate of the said J. C. Boies, deceased.

A supplemental petition was filed, setting out that the plaintiffs, since the beginning of the action, have paid the balance of the judgment against them and the said Lura M. Penney, as set out in the amended petition.

For answer to this the plaintiffs in error (hereinafter spoken of as the defendants) admit the conveyance from Boies to McCoy and from McCoy to Lorinda, as set out in the petition. They aver the fact to be that the only consideration for such conveyance was love and affection of the said J. C. Boies for the said Lorinda, and that the conveyance from McCoy to Lorinda was a part of the same transaction as the conveyance from J. C. Boies to McCoy; that it was all done for the purpose of transferring the title to this property from J. C. Boies to his saiá wife. They admit the guardianship as set out in the petition, but deny that the amount owing by Boies to his wards was as much as is averred in the petition, but say that in fact, at the time of the conveyance made by Boies to McCoy, he was indebted to his wards in only about the sum of $1,500. They aver that during all the time that said McCoy held tiie title to said real estate he held the same in trust for the said Lorinda. They further aver that the said J. C. Boies owed no other debts than said sum of about $1,500 which he owed to his said wards, and that he, after such conveyance, was still the owner of much more than sufficient property to pay his indebtedness, setting out what such property consisted of. The answer also contains the following clause: “And these defendants further say that the cause of action set forth in the petition herein, if any ever existed in favor of the plaintiffs, accrued more than four years before the filing of the petition herein and the commencement of this action,” and they deny that any conveyances were made by Boies for the purpose of hindering, delaying or defrauding his creditors.

To this answer the plaintiffs filed a general demurrer. This demurrer was sustained, and the defendants, not desiring to plead further, the court proceeded to enter judgment upon the pleadings against the defendants, setting aside the conveyance from Boies to McCoy, and from McCoy to Lorinda. The present proceeding is brought to reverse this' judgment of the epurt of common pleas.

The question, then, presented is, whether this demurrer should have been sustained. We are of opinion that it should not. We agree with counsel for the plaintiffs, that the indebtedness which they have paid by reason of their suretyship. upon the bond of Boies as guardian relates, back to the date of such bond. There was an implied undertaking on the part of Boies at the time the bond was executed that those sureties should be indemnified against all loss on account of the signing of the bond, hence they are entitled to be treated as creditors whose claim subsisted at the time the conveyances. sought to be set aside were made. 24 Am. & Eng. Enc. Law 774, and the authorities there cited.

If, however, Boies, at the time of'these conveyances, retained sufficient property to amply provide for all his debts, the plaintiffs would not be entitled to have the conveyances set aside. Crumbaugh v. Kugler, 2 Ohio St. 373, 374.

The averments of the answer seem to be sufficient to meet this requirement, whatever the facts might turn out to be upon the trial.

A more serious question raised by the answer is as to whether the action is barred by the statute of limitations.

Section 4982 Rev. Stat. provides that, an action for relief, on the ground of fraud, must be brought within four years after the cause of action accrued. “But the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”

In the case of Combs v. Watson, 32 Ohio St. 228, this language is Used in the syllabus:

“Where the petition in such action shows on its face that the conveyance was made more than four years before the action was brought, it must contain an averment that the fraud was not discovered until within that period, otherwise the defendant may demur to that petition, on the ground that it does not state facts sufficient to constitute a cause of action.”

In this case there is no averment in any pleading that whatever fraud was perpetrated was not known to the plaintiffs at the time of the fraudulent acts complained of. The fraudulent acts complained of in this case began on June 5, 1893, when the conveyance was made by 'Boies to McCoy, and the last act by which the fraud (if there was -a fraud) was completed wás on June 1, 1894, when the deed was made from McCoy to Lorinda Boies. This action was begun in the court of common pleas on November 8, 1898. It would seem to. follow that the action was barred by the statute.

It is urged, however,,that since the action was brought within four years after the plaintiffs had a cause of action against Boies or his estate, on account of the money which they were required to pay, they are not barred by this statute. The contention seems to be based upon the proposition that no right of action on account of these conveyances could accrue until a right of action had accrued for the payment to them of the money which became due to them by reason of their payments of the liability of Boies upon the bond. We do not understand that the sureties upon a guardian’s bond sustain any different»relation to the principal than the sureties upon an ordinary commercial obligation sustain to the principal upon such obligation. In the case of Combs v. Watson, supra, the facts, as appear on page 229 of the report, show that the conveyance made by Watson, who - was the maker of a promissory note, was made before the maturity of the note, so that at the time such conveyance was made Combs, the payee of the note, had no right of action' against Watson for the money which would be owing upon the note at its maturity, and yet, as already shown by the quotation from the syllabus, the court said that the statute of limitations began to run when the conveyance was made, and on page 233 of the opinion, this language is used:

“And since he (Combs) was a creditor of the alleged fraudulent grantor (Watson) at the date of the conveyance, it follows that his right to maintain such action existed from that time.”

Section 6344 Rev. Stat., as it read when the acts complained of in this proceeding took- place, provides that:

“All transfers, conveyances, or assignments made by a debtor or procured by him to be made with intent to hinder, delay, or defraud creditors, shall be declared void at the suit of any creditor,” etc.

In Bump, Fraud. Convey. Sec. 503, this language is used:

“The character of the claim, if it is just and lawful, is immaterial. It need not be due, for although the holder cannot maintain an action until it is due, he nevertheless has an interest in the property as a fund out of which the demand ought to be paid. * * * A contingent claim is as fully protected as one that is absolute. * * * The statute-' embraces all pecuniary damages incurred by reason of the obligation of a contract, whether of an ascertained amount or only sounding in damages, and whether actually asserted or only demandable.”

From the authorities cited, and others, we hold that, within the meaning of the statute, the plaintiffs were creditors of Boies at the time the fraudulent transfers (if they were fraudulent) were made. Being such creditors, their right of action to set aside the conveyances accrued at the time the conveyances were made, there being no averment that the fact of the making of the conveyances and of consequent fraud upon them was not known when such conveyances were made; that more than four years‘having elapsed since the making of such conveyances, the action is barred by the statute.

The judgment of the court of common pleas is therefore reversed, and the case remanded.


text:
    CONTRACTS — ESTOPPEL.
    [Cuyahoga (8th) Circuit Court,
    November 4, 1903.]
    Hale,-Marvin and Winch, JJ.
    Herman C. Schubert v. Eastman Realty Co.
    1. Restriction in Deeds as to Building Line and Residence Purposes not En- . FORCEABLE WHEN PROVISIONS NOT UNIFORM.
    Where lots into which a tract of land has been divided by the owner are conveyed by him with restrictions as to the purposes for which the land may be used and limitations as to the number and position of the improvements, such restrictions, if not uniform as to the various lots, create no rights in favor of the owners of the several lots which may be enforced in equity by one of them.
    2. Lot Owner Violating Building Restrictions Estopped to Enjoin Another ' From Violating Same Condition.
    Where the owner of a tract of land divides it into lots which he conveys subject to certain building restrictions, the violation, by one of the several lot owners, of a restriction in his deed, will not be enjoined at the suit of another who has violated a similar restriction in the deed of his own lot.
    Appeal by plaintiff.
    Foran, McTighe & Gage, for plaintiff.
    Higley & Maurer, for defendant:
    Restrictions imposed by deed upon the use of real property are personal unless imposed for the benefit of all purchasers pursuaqt to a general plan or scheme of improvement of the allotment. Dana v. Went-worth, 111 Mass. 291; Peck v. Conway, 119 Mass. 546; Shinner v. Shepard, 130 Mass. 180; Tobey v. Moore, 130 Mass. 448; 40 Mo. App. 54; DeGray v. Club House Co. 50 N. J. Eq. 329 [24 Atl. Rep. 388]; Jones, Real Property & Conveyancing Sec. 771.
    Plaintiff who has violated restrictive clauses himself or who has permitted others to violate restrictive clauses may not enforce such clauses against other purchasers. Russell v. Harpel, 10 Circ. Dec. 732 (20 R. 127); Besel v. Railway Co. 70 N. Y. 171, 176.
    A porch having a roof and foundation permanently attached is a part of the building within a restrictive clause requiring the building to be a certain distance from the street line. Plaintiff has therefore violated the restriction. Ogontz Land & I. Co. v. Johnson, 168 Pa. St. 178 [31 Atl. Rep. 1008]; Bagna-11 v. Davies, 140 Mass. 76 [2 N. E. Rep. 786]; Reardon v. Murphy, 163 Mass. 501 [40 N. E. Rep. 854].
    The restriction “to erect but one dwelling house” on a lot is not violated by the erection of an apartment house for many families. Hutchinson v. Ulrich, 145 Ill. 336 [34 N. E. Rep. 556; 21 L. R. A. 391],

      McGuire v. Caskey, 62 Ohio St. 419 [57 N. E. Rep. 53], involved none of the issues presented here. In that case there was a general plan, and its only violations were by common consent and were of a restrictive clause not involved in the controversy between the parties. One restrictive clause in a general plan may be abandoned without affecting 'the validity of the remaining clauses. Latimer v. Livermore, 72 N. Y. 174, 176.
   WINCH, J.

Plaintiff is the owner of sublot No. 66 in Henry Lower's subdivision of part of original Brooklyn township lots Nos. 9 and 10 as shown on the plat of said subdivision recorded in volume nineteen of Maps, page twenty-eight of Cuyahoga county records. His lot is 56.5 feet front on Detroit street and 200 feet deep along the westerly line of Eastman street. Defendant is the owner of sublots Nos. 23, 24 and 25 in said Lower’s subdivision, making a frontage of 166]4 feet on Detroit street and having a depth of 200 feet along the easterly side of Eastman street.

Plaintiff alleges that he brings his action in his own behalf and for the use of numerous other property owners having lots fronting on Detroit street to restrain the defendant from violating certain building restrictions contained in the deeds to its property by erecting a four-story apartment house within forty feet of the Detroit street line, it being claimed that defendant’s deeds provide that only one dwelling house be erected upon each of its lots and that said dwelling houses be built back fifty feet from the street li'ne. It is claimed that Plenry Lower, who subdivided the land and platted the allotment and under whom both parties claim, in each and even*- deed conveying lots on Detroit street inserted similar covenants, restrictions and limitations as to the character of the improvements to be built upon said lots by the purchasers, the distance from the street line that improvements should be erected, etc.; that all such lot purchasers, including plaintiff, but excepting defendant, had complied with such restrictions.

Plaintiff 'says that defendant’s violation of said conditions and restrictions will obstruct the view of other lot purchasers in the subdivision, including himself, and shut off their light and air and depreciate the value of their property for private residence purposes.

Defendant’s answer denies that it is violating any of said restrictions, and further alleges that none of the limitations or restrictions inserted bv Lower in his deeds to his Detroit street lots were inserted for the benefit of adjoining property owners, nor pursuant to any general scheme of improvement, but for his own benefit and that he is not complaining; that-said restrictions as to the various lots, ten in number, on Detroit street, were not uniform and have not been complied with by plaintiff or any other lot owners, but that by common consent all lot owners on Detroit street have disregarded said restrictions.

By the pleadings this case is brought squarely under the rule of law laid down in 1 Jones, Real Property in Convey. Sec. 771:

“Where the owner of a tract of land adopts a general scheme for its improvement, dividing it into lots and conveying them with uniform restrictions as to the purposes for which the land may be used, such restrictions create equitable easements in favor of the owners of the several lots, which may be enforced in equity by one of such owners.”

Let us examine the restrictions inserted by Henry Lower in the deeds of the ten lots on Detroit street, in order that we inay determine whether the owner of the original tract of land when he divided it into lots adopted a uniform scheme for its improvement and conveyed the lots with uniform restrictions as to the purposes for which the land might be used.

Two lots (Nos. 69 and 70) were conveyed without any restrictions whatsoever.

Four lots (Nos. 25, 66, 67 and 68) were conveyed with restrictions that the building line should be fifty feet back from the sidewalk.

Four lots (Nos. 21, 22, 23 and 24) have a forty foot building line.

Five lots (No's. 21, 22, 23, 24 and 66) have a condition that but one dwelling house shall be erected thereon.

On six lots (Nos. 21, 22, 23, 24, 25 and 68) liquor cannot be sold.

Six lots (Nos. 23, 24, 25, 66, 67 and 68) are to be used for residence purposes only.

It therefore appears that no uniform scheme of improvement was adopted either as'to the building line or as to there being but one dwelling-house upon every lot. It follows that plaintiff is not entitled to the relief he prays for. This view of the case makes it unnecessary for. this court to determine whether an apartment house is “one dwelling house.” It is admitted that defendant might build an apartment house on lot No. 25, but it is claimed that he could not build one on lot No. '23 or lot No. 24. Lot No. 25 is the lot nearest plaintiff’s lot and an apartment house on that lot would do all the damage plaintiff claims would flow from any apartment house on any of defendant’s lots. This inconsistency illustrates the soundness and wholesomeness of the rule of law above quoted from Jones on Real Property in Conveyancing.

There is. another reason why plaintiff is not entitled to an injunction :

The proof shows that the building line of plaintiff’s lot is fifty feet from the street line. The main part of his house conforms to the restrictions in his deed, but a bay window, two stories high, is within forty-five feet of the street line. This bay window is in the shape of a tower, is a substantial part of his house, and encloses rooms therein. His porch is a heavy, substantial structure, having a solid foundation and slate roof, heavy columns and of such style and construction that it must substantially interfere with the view 'of his neighbors. This porch is within forty feet of the street line.

It cannot be contended -that plaintiff can compel his neighbor to put his building back fifty feet from the street when he himself is within forty or forty-five feet of the street. And if he asks his neighbor to go back as far as he is from the street, should the porch not be considered, the line established would be not more than forty-five feet from the street and he would be asking us to 'enforce a building restriction established not by the original owner of the land for‘the common benefit of all lot owners, but by one lot owner for his own benefit and to suit his own convenience.

The petition is dismissed at plaintiff’s costs.