author: HALE, J.

text:
    RAILROADS — TRESPASSERS.
    [Summit Circuit Court,
    April Term, 1903.]
    Hale, Marvin and Winch, JJ.
    Cleveland, Akron & Columbus Ry. Co. v. George Stein, an Infant, by Philip Stein, His Next Friend.
    1. Duty of Railway Companies to Trespassers.
    A railway company is not bound to look out for and protect trespassers or mere licensees upon its track except to use all reasonable diligence to protect such persons after discovering their peril.
    2. Leaving Place of Safety — Contributory Negligence.
    A person who leaves a place of safety between two railway tracks and goes upon the track in order to pass around a switch light, without looking or listening or taking any precaution to save himself from possible danger, is guilty of contributory negligence which will prevent a recovery for injuries received by him from an engine moving upon such track.
    Error to Summit county common pleas.
    Allen, Waters & Andress, for plaintiff in error.
    Rogers, Rowley, Bradley & Rockwell, for defendant in error.
   HALE, J.

On May 28, 1900, the defendant in error, while walking along the right of way of the plaintiff company, within the city of Akron, was struck by an engine and very seriously injured. For many years prior to the date of this accident the public, including school children, had been, accustomed to pass over this part of the right of way of the company in going to and from their homes to their places of business, and school children from their homes to school.

The negligence charged in the petition is this:

“The plaintiff further says, that on May 28, 1900, the said George Stein, being a student at said new High school, was going home over the usual route, to-wit, down Forge street to the track and roadbed of the defendant, thence southerly on the track and roadbed of the defendant to Exchange street; that he had proceeded southerly on the track and roadbed of the defendant company to a point about twenty feet south of the Center street railroad crossing, when the said defendant, through its agents and servants, carelessly and negligently caused a locomotive to be propelled up to and against the said George Stein, knocking him down, the wheels of said locomotive passing over his left leg above the ankle; that said locomotive was going in the same direction that said George Stein was going; that said George Stein had his back to said locomotive and did not know that said locomotive was approaching him from the rear; that no bell was rung or other signal given, or any warning whatever given of the approach of said engine; that said George Stein was in plain sight, and could be seen by the engineer and fireman of said engine in time to have warned him of its approach and permitted him to get out of the way of said engine.”

The negligence complained of, therefore, is a failure to perform the duty which the company owed to this hoy. To determine then the act of negligence it is necessary to determine the relation existing between the company and the boy at the time of the accident. If the boy is to be regarded as upon the railroad track by the invitation, acquiescence, or by the permission of the company, it did owe to him the duty to use ordinary and reasonable care to protect him, knowing that he was rightfully upon the track, and the specific act of negligence charged — the failure to give the signal — would be available to him. But if he was a mere trespasser upon the trdck, or a mere licensee, a different rule applies, and the duty of the company to him was entirely different than in the case that I have indicated.

In a very recent case of this same railroad, Cleveland, A. & C. Ry. Co. v. Workman, 66 Ohio St. 509 [64 N. E. Rep. 582], the duty of a railroad company to a trespasser upon the track, or a- mere licensee, was considered by the court, and in the first paragraph of the syllabus it is stated thus:

“An employe of a railroad compan)'-, whose duties in the performance of his employment do not require him to be on the main track of the railroad with a three-wheeled handcar called a 'speeder’ but who so goes upon the main track without any invitation or inducement therefor by the company, but with no objection on the part of the company, is at most a mere licensee, and-his use of the track in such manner is subject to all the risks incident to the use of the track by the company, in the same manner it was used at the time the license was granted, and the company does not owe him the duty to especially look out for and protect him, when running- its trains, excejDt to use reasonable care to avoid injuring him after discovering him upon the track.”

After that case had been decided by the Supreme Court, this court had occasion to consider this question in the case of the Cleveland, C. C. & St. L. Ry. Co. v. Gahan, 24 O. C. C. 277, and, following that case, we held that the duty of a railroad company to a trespasser or mere licensee upon its track, was fully performed when,, after discovering the peril of the party upon the track, used all reasonable diligence to save him from the -peril.

We are aware that the authorities upon this question are very conflicting, and there is no ladk of authority to sustain the proposition that the duty of the company is not only to use ordinary care after' discovering a trespasser upon the track, but to'use all ordinary care to discover him.

But our Supreme Court have very clearly, not only in this case, but in another case, sustained the proposition that I have announced.

The attention of the jury was not specifically called to this relation, and the duties of the company to this boy under the different phases that might have been submitted to them; but, instead of that, after stating the issues, the court said to the jury:

“And I say to you, that if you find from the evidence that the defendant did not acquiesce in such use by the public, including school children, at and before the time plaintiff was injured, and that said public, including school children, did not travel over said place by the permission of the defendant, or if you find that the defendant objected to such Use by the public, including school children, then your verdict should be for the defendant.”

Manifestly, that proposition is much too favorable to the railroad company. This boy might have been on the track under the circumstances assumed and still have been entitled to recover, because, if the agents of the railroad company had discovered his peril in time to have saved him, it was its duty to have done so.

We suppose the court, in the construction of the petition, held that the only negligence charged was the failure to ring the bell, and to give the proper warning, and did not regard that question made by the petition. The court may have been right, but it will be noticed that, in general terms, the petition states the defendant, through its agents and servants, carelessly and negligently caused a locomptive to be propelled up to and against said George Stein, knocking him down, etc., and it is possible, under that general allegation of the petition, although not made more specific, that that question might have been made. But the court, upon this question, further charged:

“I say to you, however, should you be satisfied from the evidence that signs warning the public, including school children, against passing over said grounds where plaintiff was injured, were erected by the defendant, not for the purpose on the part of the defendant of objecting or hindering the public, including school children, from passing over said spot, or if you find from the evidence that for a long time previous and up to the date of the accident the said defendant permitted said public, including school children, to travel and pass as pedestrians habitually over its said road, and you further find it acquiesced in such' use by them during said period, notwithstanding said printed signs, then, I say to you, that said signs would be of no avail to the defendant. The objections or hindrances on the part of the defendant whether by such signs or otherwise to the use of said grounds in the manner stated b^ the persons named, must have been in good faith on its part, with the intention and purpose on its part to in fact object to such use.”
“In considering all the testimony there may be on this subject in support of the defendant’s claim, whether by written signs or by acts of its servants and officers in person, to amount to an objection to the use by the public, including school children, of said grounds, the same must have been done by the defendant in good faith for the purpose and with the intent on its part to in fact object to such use, in order to be of avail to the defendant in this case.” v

We are inclined to think that that charge may have been misleading. It was not a question of fraud or good faith on the part of the company. They could control their property as they saw fit. The question was whether they did object, or whether they did acquiesce in the public going upon that land. It is a question of fact to be determined by the jury.

The undisputed facts in the case show that the railway company had placed along this right of way certain signs, reading, “Caution, Don’t walk or trespass upon this road.” These signs at all railroad crossings were plain and visible. An employe of the railroad testifies that he had frequently ordered pedestrians off of the right of way, and called their attention to the fact that the company objected to it; he had consultations, he says, with the teachers in the schools, and superintendent, in which he warned them against the children going upon this right of way. These facts are undisputed.

Under proper instructions the jury would not have been justified in finding anything other than that this boy was at best a mere licensee upon that track; he was, in fact, a trespasser. It cannot be expected that the company shall furnish a man to stand at all times warning people off of the track. The company put a notice up to protect it, as it had a right to do, against this very kind of liability.

If this be true, however reluctant we may be to come to that conclusion, the company was not chargeable with any negligence towards this boy. He was on the track knowing its uses, its dangers, old enough to appreciate them. The company was doing precisely what it had a right to do. If he was a trespasser they were not bound to look out for him or give him warning. They were bound, if they discovered his peril, to use every reasonable effort to save him. That was the extent of their duty toward him.

•The jury were clearly wrong in finding negligence on the part of the company for which it would be liable for injury to this boy.

Again, this boy was old enough, as I say, to appreciate the danger. He was walking out between the two tracks, a place of entire safety had he continued in that route, but just before being struck he reached a switch light, and in passing around that he came in contact with the engine without giving any heed to or looking for its approach. Under the rule given to the jury by the court, he was guilty of contributory negligence, which would prevent a recovery. An engine was passing along the track in the midst of other tracks, where danger is always present, and he stepped from a place of safety to a place of danger without even looking or listening, or taking any precaution to save himself.

* We think upon both grounds on the facts of this case the jury were wrong in returning a verdict for the defendant in error, and that on motion for a new trial the verdict should have been set aside.

We find no further error apparent upon this record than .this, and for the sole reason that the court overruled the motion for a new trial because the verdict was not sustained by sufficient evidence, the judgment of the court below is reversed and the case remanded for a new trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ALIMONY — RES ADJUDICATA.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Gillen and Jelke, JJ.
    Frederica Schradin v. Jacob Schradin.
    Decree eor Alimony not a Bx\r to a Second Decree, When.
    The policy of the law does not require a wife to become reconciled to her husband at her peril, and where the reconciliation is followed by a second separation she is not barred from maintaining a second action for alimony alone, under Secs. 5702, 5703 Rev. Stat., by the fact that she obtained a prior decree for money on the former separation.
    Louis G. Hummel, for plaintiff in error, cited:
    Sections 5702 and 5703 Rev. Stat. must be construed together with the prior written or unwritten laws in reference to alimony. Bishop Mar. & Div., Secs. 1040-2.

      Alimony as we recognize it in Ohio, can be either permanent or pendente lite, and if granted on absolute divorce and the amount is agreed upon as final, the court will refuse to modify. Law v. Law, 64 Ohio St. 369 [60 N. E. Rep. 560].
    If granted on application for alimony only, it is only a decree for maintenance. Stewart Mar. & Div., Sec. 374.
    In the case at bar the allowance was until reconciliation, or no court can decree what would be a decree of separation without divorce. Caíame v. Caíame, 24 N. J. Eq. 440, 444; Miller’ v. Clark, 23 Ind. 370, 372; Anonymous, 2 Desau. (S. C.) 198, 207; Bishop Mar. & Div., Sec. 1417; Tiffin v. Tiffin, 2 Binn. 202.
    An order of alimony upon a divorce a mensa et thoro continues in force only until reconciliation. Lockridge v. Lockridge, 33 Ky. (3 Dana)' 28 [28 Am. Dec. 52] ; 1 Bishop Mar. & Div.,' Sec. 1707.
    Jerome D. Creed, contra.
   PER CURIAM.

Prior to August 25, 1890, Fredericka Schradin and Jacob Schradin had been married, and were living together as husband and wife.

On August 25, 1890, Fredericka Schradin brought an action in the court of common pleas in cause 87,756 against Jacob Schradin under Secs. 5702 and 5703 Rev. Stat, for alimony alone — not for divorce. On March 3, 1891, an entry was made in said cause, providing among other things as follows:

' “And it further appearing to the court that the parties to this action have agreed upon a sum to be paid by the defendant to the plaintiff in full payment of her alimony and dower interest, and other claims in and to his property and estate, the court does hereby in accordance with said agreement, and by and with the consent of the parties hereto, order and decree that the defendant pay to the plaintiff in full of her allowance of alimony, and of her dower and other interests and rights in and to the estate and property of defendant, the sum of one thousand ($1,000) dollars as follows: Three hundred ($300) dollars in cash; two hundred ($200) dollars in one year thereafter; two hundred ($200) dollars in two years thereafter; two hundred ($200) dollars in three years thereafter, and one hundred ($100) dollars in four years thereafter; the deferred payments to bear five per cent, interest, and the same is hereby made a lien upon all the real estate of defendant mentioned and described in the petition.”

The defendant paid the money, and satisfied that decree. After that plaintiff and defendant lived separate and apart until August, 1900, when at the solicitation of her husband Jacob, who was injured and sick, Frederick» returned and resumed living with him as his wife, nursed him and performed her household duties, abandoning the separate home she had established. On August 20, 1901, Fredericka again filed an action for alimony making allegations which would bring the case within Sec. 5702 Rev. Stat.

The foregoing facts appear in the petition, answer and reply in this latter action No. 121,891. Defendant filed a demurrer to the reply and petition, searching the record. The court below sustained the demurrer, and entered judgment for the defendant. Was the former action, No. 87,756, a bar to the latter, No. 121,891?

We are of the opinion that it was not. This is a different case from cases like Law v. Law, 64 Ohio St. 369 [60 N. E. Rep. 560] ; Andress v. Andress, 9 Dec. 559 (7 N. P. 283).

The marital tie continued to subsist, and the parties subsequent to the former decree resumed the marital relation. It is not a change in the separate condition of either. As long as their separation continues no change in their several conditions can do away with their agreement and the entry made thereon. It is a change in their mutual condition or relation, which changes all that has been done or agreed to theretofore. The policy of the law is not to have a wife become reconciled to her husband at her peril. We do not mean to say that the trial court may not have regard to the money paid under the former agreement and decree, but that is but one of the things to be taken into consideration with all subsequent happenings together with all the circumstances and conditions when the court is called on to act.

Judgment reversed.


author: SWING, P. J.

text:
    ACTIONS — BONDS.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    Jones et al. v. Wright, Trustee.
    1. Improper Joinder oe Actions.
    Causes of action against several defendants are improperly joined where the action is upon bonds which were not signed by the same parties, or given in the same court, or in courts of the same jurisdiction, or answering to the same parties, or containing the same conditions.
    2. Bond Required by Court Having no Jurisdiction is a Nullity.
    The probate court has no jurisdiction but such as is conferred by the constitution and statutes of Ohio. Hence, under Sec. 5803 Rev. Stat. conferring jurisdiction on the common pleas to sell entailed estate, no power being •conferred on the probate to do likewise, any action taken by the latter in the sale of such estates is coram non judice. Hence, a bond given in a proceeding in the probate court to sell an entailed estate is an absolute nullity, and the fact that such court finds that it has jurisdiction fails to give it any effect, and the want of such jurisdiction may be shown in any action founded upon such bond.
    Jones & James and John R. Holmes, for plaintiffs in error.
    D. Thfew Wright, contra.
   SWING, P. J.

This was an action brought in the court of common pleas of Hamilton county by Rogers Wright, trustee, against Samuel N. Maxwell, J. T. Jones and Samuel N. Maxwell and John M. Maxwell, executors of the last will of George M. Maxwell, deceased. The petition sets out two causes of action.

The first cause of action is founded on a bond dated October 22, 1870, which was signed by Samuel N. Maxwell, George M. Maxwell and J. T. Jones, and was in the sum of $3,500. It is alleged that this bond was given in the probate court of Hamilton county, pursuant to an order’of said court, to secure the faithful performance by said Samuel N. Maxwell, as trustee under the wills of Sarah Clyde and Jacob Fortue, appointed as such by said court on October 15, 1870. It is alleged that on' April 18, the probate court of said county, by its order, judgment and decree, found there was due from said Samuel N. Maxwell, as trustee aforesaid, the sum of $1,902.41, with interest from July 1, 1898, and the further sum of $951.20, with interest from July 1, 1896, and judgment is asked against said Samuel N. Maxwell, J. T. Jones and said Samuel N. Maxwell and John M. Maxwell, executors of George M. Maxwell.

For a second cause of action plaintiff alleges that in a certain proceeding in said Hamilton county court of common pleas said Samuel N. Maxwell and George M. Maxwell executed a bond on March 17, 1875. This bond was in the sum of $6,000. The condition of said bond is alleged to be as follows:

“Whereas, the said S. N. Maxwell has been appointed trustee for the heirs and devisees of Sarah Clyde and Jacob Fortue, now if the said trustee shall perform his duties as such according to law and the order of this court, then the above obligation to be void.”

It is further alleged that said trustee, by virtue of certain proceedings in said court, collected certain moneys, proceeds of real estate, amounting to $2,956.50, which sum, with interest, said Maxwell was ordered by said court to pay over to the plaintiff, Wright; and judgment is asked by said .plaintiff against said Samuel N. Maxwell, individually, and against said Samuel N. Maxwell and John M. Maxwell, as executors of the estate of George M. Maxwell.

To this petition the defendant, J. T. Jones, .filed a demurrer, one ground of which was that “separate causes of action against several defendants are improperly joined,” which demurrer the court of common pleas overruled.

We think this was error. The bonds were riot signed by the same parties, nor were they given in the same court, and the conditions were entirely different in the two bonds. The one given in the probate court was given to the state of Ohio for the faithful performance of said Samuel N. Maxwell of his duties as trustee under the will of Sarah Clyde and Jacob Fortue; whereas, the other was given to the heirs of Sarah Clyde and Jacob Fortue in a case pending in the court of common pleas by virtue of an order of said court made in said action. Each bond was given by order of court in the exercise of its jurisdiction in matters pending before it. The jurisdiction of each court was separate and distinct from the other, and the bonds were not given by the same parties. One was to answer to the faithful performance of a trust under the probate court and the other was to answer for the faithful performance of a trust under the control of the court of common pleas. Such a state of facts shows that there are separate causes of action, and the parties not being the same, they were improperly joined, and this error is not cured by subsequent proceedings.

A second ground of error relied on by plaintiff in error is that the court erred in sustaining a demurrer to the amended answer of J. T. Jones. In this answer the said Jones alleged that the bond set forth in plaintiff’s first cause of action on which judgment was asked against him was given by virtue of an order of the probate court in an attempt to sell.an entailed estate, and for no other purpose; that said real estate was not, in fact, sold in said proceedings before said court; that said court had no jurisdiction of the subject-matter; that when it was ascertained that said court had no jurisdiction of the subject-matter, proceedings were instituted in the court of common pleas for the purpose of selling said entailed estate, and said estate was sold by order of said court and bond given by order of said court by virtue of Sec. 5803 Rev. Stat. ct seq., which bond is the foundation of the second cause of action set out in the petition.

It seems to us that the court erred in sustaining this demurrer. Conceding the facts to be true, which the demurrer does, it shows that the probate court had no jurisdiction of the .subject-matter. The jurisdiction of the probate court is limited to that conferred on it by the constitution and statutes of Ohio. It has no jurisdiction to sell entailed estates — such jurisdiction is conferred on the court of common pleas by Sec. 5803 Rev. Stat., supra — and even if the parties had consented, no jurisdiction could be conferred, and any action taken by said court in this regard would be coram non judice. A judgment of any court which has no jurisdiction of the subject-matter is absolutely void and of no validity whatever, and the want of such jurisdiction may be shown in any action founded 'on such judgment; and the fact' that a court finds that it has jurisdiction makes no difference if the record discloses the fact that it had no such jurisdiction.

The facts set up in the answer of J. T. Jones clearly show that the probate court was wholly without authority to make any order or take jurisdiction to sell the entailed real estate, and had no auinority to take the bond given by said Jones, and sqid bond had no validity by virtue of the order of said court, and the judgment of said court on said bond was equally invalid.

For these reasons the judgment will be reversed and cause remanded.


author: PER CURIAM..

text:
    COURTS — JURISDICTION.
    [Hamilton (1st) Circuit Court,
    1902.]
    Giffen, Swing and Jelke, JJ.
    Marie L. Hafner v. Bank of Enterprise.
    1. Circuit Court of United States — General, but Limited Jurisdiction.
    The circuit court of the United States is a court of general though limited jurisdiction and as such has the right to pass upon'its own jurisdiction, and its judgment, while entitled to all the presumption in its favor which attaches to judgments of courts of general jurisdiction in our own and sister states, may be contradicted as to the facts necessary to give jurisdiction. Therefore, such court is not a court of special jurisdiction within the contemplation of Sec. 5090 Rev. Stat., providing that it shall be sufficient to state where the judgment is of a court of special jurisdiction, that it was duly • given or made, which fact must be established on trial if controverted.
    2. Waiver of Technical Defect in Pleading.
    An answer, “now comes the defendant and says that she denies,” etc., is technically not in good form, but the parties having gone to trial without objection thereto on the assumption that it is a good traverse to the allegations of the petition, it will be treated on error as a sufficient denial, especially since it could have been cured by amendment.
    Heard on Error.
    J. D. Creed and E. A. Hafner, for plaintiff' in error.
    Kelly & Hauck, contra.
   PER CURIAM..

The answer, “Now comes defendant and says that she denies,” etc., is technically not in good form, but as the parties went to trial below without objection to its form and on the assumption that it is a good traverse to the allegations of the petition, it will be treated here as a sufficient general denial. At all events it could be cured by amendment.

We are of opinion that the circuit court of the United States is not a court of special jurisdiction within the contemplation of Sec. 5090 Rev. Stat. The provisions of this section are confined to judgments of inferior tribunals. Wehrman v. Reakirt, 2 C. S. C. 29; Seney’s Code (1860 Ed.), p. 162, Sec. 120 and notes; Memphis Med. Col. v. Newton, 12 Re. 382 (2 Handy 163) ; Hollister v. Hollister, 10 How. Pr. (N. Y.) 532-539.

As against the provisions of this statute the circuit court of the United States is a court of general but limited jurisdiction (see Dowell v. Applegate, 152 U. S. 327, opinion per Mr. Justice Harlan, page 340), and as such has the right to pass upon its own jurisdiction, and its judgment is entitled to all the presumption in its favor which attaches to the judgments of courts of general jurisdiction of our own and sister states.

“Neither the constitutional provision, that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, nor the act of congress, passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered.

“The record of a judgment rendered in another state, may be contradicted, as to the facts necessary to give the court jurisdiction; and if it be shown: that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist.” Pennywit v. Foote, 27 Ohio St. 600 [22 Am. Rep. 340] ; Spier v. Corll, 33 Ohio St. 236; Wilhelm v. Parker, 9 Circ. Dec. 724 (17 R. 234, 237) ; Dodd v. Groll, 8 Circ. Dec. 334 (19 R. 718).

The petition in. this case alleges the jurisdiction of the circuit court of the United States of the district of Kansas and the answer denies the same. Its jurisdiction is fairly put in issue. Conceding that the presumption which obtains in favor of the judgment sustains the burden on the plaintiff in the first instance, what evidence does an examination of the record disclose to rebut it?

(1) There is the testimony of the witness, R. P. March, in his deposition, “Exhibit B:”

“Were you personally acquainted with John A. Hafner and Marie L. Hafner?
“A. I was.
“Where did they reside in 1894?
“A. At Enterprise, Kansas, and they continued to reside there until some time in 1895.”

(2) There is the evidence in the note itself dated “Enterprise, Kansas, November 1, 1893,” also, P. O. address.

“Enterprise, Kansas.
“Due November 1st, 1894.”

(3) The fact that the action was brought in the district of Kansas.

Weighing this evidence as against the presumption, we find as a fact that Marie L. Hafner was a citizen of Kansas on June 29, 1894, and are hence of opinion that the circuit court of the United States had no jurisdiction of a cause of action between Marie L. Hafner and the bank of Enterprise, both being citizens of the same state.

Judgment reversed.


author: SWING, J.

text:
    MANDAMUS.
    [Hamilton (1st) Circuit Court,
    1903.]
    Swing, Gifien and Jelke, JJ.
    State ex rel. Fanger v. Board of Elections.
    1. Mandamus Will not Lie to Compel Board of Elections to Provide Voting Machines.
    A writ of mandamus to compel a board of elections to grant the petition of sixty-five per centum of the electors of a voting precinct for the providing of a voting machine for their precinct, under the provisions of 95 O. L. 420, will not be issued, where it does not appear that there are funds on hand applicable to payment for such a machine, or that the hoard has been derelict in providing by proper levy a fund applicable to such purpose.
    2. Mandamus Does not Lie to Anticipate Omission of Duty.
    The rule that mandamus cannot be granted in anticipation of a supposed omission of duty, forbids the issuance of a writ to compel the purchase of a voting machine which will not be needed until three months hence, where it does not appear that it is necessary to purchase the machine at this time in order to have it in readiness when needed.
    Geo. B. Okey, Cohen & Mack and Chas. L. Swain, for relator.
    Corporation Counsel, for defendants.
   SWING, J.

This court on November 4, ult., the day of the last election, issued an alternative writ of mandamus against the defendants, returnable on December 2, to show cause why they should not purchase a voting machine .under and by virtue of the requirements of Sec. 14 of an act passed by the legislature in May, 1902 (95 O. L. 420), for Precinct B of the Twenty-sixth ward of the city of Cincinnati. The petition alleges that sixty-five per centum of the electors have signed a petition praying1 for the adoption of a voting machine as required by the statute, and that the defendants refused to purchase the same.

The defendants answered, admitting that sixty-five per centum of the electors had filed the petition as alleged, and its refusal to purchase a machine, but denied all other allegations. No evidence was introduced as to the cost of a voting machine, but it was admitted in the argument that the cost was $500.

No evidence was introduced by the relator showing that there was in the general revenue fund of the city, applicable to the purchase of a machine, sufficient funds for the purchase of the same. It did not further appear that said board was derelict in providing by proper levy a fund for the purchase of said machine, and as the board cannot purchase a machine without funds which are applicable to the purchase of machines, the court should not attempt to compel the board to do an act which it is not in its power to do.

High Extraordinary Remedies, Sec. 14, says:

“It is a fundamental principle of the law of mandamus that the writ will never be granted in cases where, if issued, it would prove unavailing. And whenever it is apparent to the court that the object sought is impossible of attainment, either through want of power on the part of the persons against whom the extraordinary jurisdiction of the court is invoked, or for other sufficient causes, so that the granting of the writ must necessarily be fruitless, the court will refuse to interfere. So if it is apparent that the writ, if granted, cannot be enforced by the court, relief will be withheld, since the courts are averse to exercising their extraordinary jurisdiction in cases where their authority cannot be vindicated by the enforcement of process. Nor will mandamus be allowed unless the act or duty whose enforcement is sought is legally possible at the time.”

The sixty-five per centum of the electors of said precinct presented their petition to said board on October 28, 1902, long after the time for which they might have provided a levy for the purpose of raising a fund sufficient to purchase said machine. It seems to us that this is all that should be said why the writ should be refused. The writ of mandamus is never granted except where the relator shows a clear legal right to have the writ issued, and it has not been shown here by the relator that the defendants have in the general revenue fund of said city funds which by law they are authorized to appropriate to the purchase of such machine. Neither has it been shown that said board neglected or refused to perform any duty resting on it to provide a proper fund in a proper way for the purchase of said machine.

There is still another reason why we think the writ should be refused at this time. The action was not brought to require the board to purchase a machine for the election held on November 4, ulR No application for the alternative writ was made to this court until the day of said election, and no election will occur until the April election of 1903. If the board provides a voting machine by that time, more than three months hence, the relator will get all that he is entitled to. He is not beneficially interested in having the board purchase a voting machine at this particular time.

“Mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives. It is therefore incumbent upon the relator to show an actual omission on the part of the respondent to perform the required act; and since there can be no such omission before the time has arrived for the performance of the duty, the writ will not issue before that time. In other words the relator must show * * * a legal duty then due at his hands, and no threats or predetermination can take the place of such default before the time arrives when the duty should be performed; nor does the law contemplate such a degree of diligence as the performance of a duty not yet due.” High Extraordinary Remedies, Sec. 12.

There is no legal duty now due the relator that the defendants must purchase a voting machine at this particular time. The .time when there will be any use for said machine will be more than three months hence, and it is not shown that it is necessary to purchase such voting machine now in order to have it by the time needed. Non constat the 'defendants, if within their power to do so, may provide a voting machine as petitioned for by said electors of said precinct for the coming election in April. And it would only be reasonable to assume that the legislature intended that in the purchase of machines, the board should make all necessary investigations as to the merits of the different machines and make proper agreements as to terms of sale, and these might very well require some time.

For these reasons the writ must be refused. Having come to this conclusion for the reasons stated, we do not think it proper to enter into a discussion of the other questions presented to us on the argument of the case, for what we would say would be obiter dictum.


text:
    ATTORNEY AND CLIENT.
    [Hamilton (1st) Circuit Court,
    1903.]
    Swing, Giffen and Jelke, JJ.
    Spangenberg v. Zumstein.
    Assignment of Judgment to Attorney for Professional Services.
    One who assigns all right, title or interest in a judgment to an attorney, in consideration of professional services theretofore rendered, the said attorney to account to the assignor for one-half of’the amount realized on the judgment, does not make the attorney an agent for the collection of the judgment, but invests him with full title thereto, and the attorney has the right to prosecute an action in his own name against the judgment debtor.
    J. J. Gasser, for plaintiff in error,
    Shay & Cogan, contra.
   SWING, P. J.

This was an action in the court of common pleas by Spangenberg against Zumstein on a bond given by said Zumstein to one Kate Dilg to perfect an appeal from the judgment of Philip Winkler, a justice of the peace in this county, in an action pending before him.

This action in the court of common pleas was prosecuted in the name of Spangenberg, who claimed to be the owner of the judgment obtained by Kate Dilg in said action on appeal from said justice.

The only evidence in the case was that of Spangenberg, who testified that the judgment had been assigned to him by Kate Dilg, and the assignment was in the following words:

“Kate Dilg v. Christ Dilg. For value received I hereby and by these presents assign, transfer and set over to* Ed. M. Spangenberg all my right, title and interest in and to the judgment herein.
“ Kate' Dilg.
“Cincinnati, July 5, 1901.”

On cross-examination, Spangenberg testified as follows:

“Q, Is it not a fact that at the time of the assignment you agreed to pay one-half of any judgment you might recover to Kate Dilg?
“A. Yes, sir.
“Q. Did you pay any money as a consideration ,for the assignment of the judgment?
“A. The consideration for the assignment was professional services rendered by me to her, prior to the assignment.”

This was all the evidence offered by either party; on it the court rendered judgment for the defendant and dismissed plaintiff’s petition.

It is urged before us in support of the judgment that the evidence shows that Spangenberg is not the owner of the judgment and had no right to prosecute an action in his own name, as he is not the real party in interest as is required by Sec. 4993 Rev. Stat. 1

Was Spangenberg the owner of the judgment? We see no reason to question his absolute ownership of it. It was a chose in action owned by Mrs. Dilg, which she had a right to assign, and she did assign it to Spangenberg, and for a consideration (which was for services rendered to her in the past by Spangenberg). The fact that Spangenberg was to pay over to Mrs. Dilg one-half of whatever he might recover on it did not leave in Mrs. Dilg any right as against Zumstein, that she had transferred to Spangenberg, and instead of her right against Zumstein, she had substituted one against Spangenberg. It is true that it arose out of the right that she had originally against Zumstein, but it was not the same right. The intention‘to us seems clear that she intended to vest in Spangenberg the ownership of the judgment and not constitute him her agent for the collection of it, of which he was to receive half when collected.

This case we think clearly distinguishable from the case of Brown v. Ginn, 66 Ohio St. 316 [64 N. E. Rep. 123], where the court found the party was the mere agent of- the assignors whose claims had been assigned to the assignee for the purpose of collecting the same, and the only consideration moving between the parties in the transaction was to be the services to be thereafter rendered by the assignee in the prosecution and collection of the claims, and where the assignee by the terms of the assignment was to pay all costs of suit and pay over to the assignors the proceeds of the recovery in the judgments after deducting certain amounts due him for services rendered in recovering the same. The court held in this case that the assignee was the mere agent of the assignors and not the owner of the claims and that the transaction was champertous, but all the elements in that case seem to us to be lacking here.

Judgment reversed.


text:
    JUSTICE OF THE PEACE — APPEAL.
    [Hamilton (1st) Circuit Court,
    1903.]
    Louise Meyers v. Josiah Dwight.
    Perfection of Appeal Before Justice Originally Having Jurisdiction.
    Where a justice of the peace sits in a case and renders judgment in a case filed before another justice who is temporarily disabledj the appeal bond must be perfected before the justice originally having jurisdiction.
   PER CURIAM.

This cause was originally brought before R. J. Stauverman, justice of the peace in and for Springfield township, and summons was, on December 30, 1901, issued by him.

On January 29, 1902, the following entry was made on Justice Stauverman’s docket:

“1902, January 29. This cause was called, R. J. Stauverman, issuing magistrate, being unable on account of sickness to try the case, D. J. Smith, one of the J. of P. of Springfield township, tried the action in his stead. .Plaintiff being sworn, testified. And defendant, Mrs. Josiah Dwight, and her daughter, Miss Dwight, also being sworn and testified. And after hearing the testimony, judgment is for defendant and the cost taxed against plaintiff amounting to $5.50.
“D. J. Smith, acting J. of P.”

On February 4, 1902, Harry W. Morten signed plaintiff’s appeal bond to which this certificate appears:

“Approved by and signed before me this fourth day of February, A. D. 1902.
“Richard J. Stauverman,
“ Justice of the Peace.”
“The party appealing shall, within ten days from the rendition of it was not perfected in the manner required by Sec. 6583 Rev. Stat., in that the appeal bond was not approved by the justice of the peace who rendered the judgment:
“In all cases not otherwise specially provided for by law, either party may appeal from the final judgment of any justice of the peace, to the court of common pleas of the county where the judgment was rendered.”

And Sec. 6584 Rev. Stat.:

“The party appealing shall, within ten days from the rendition of the judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety to be approved of by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs.”

Sec. 601 Rev. Stat. provides:

“In case of the sickness or other disability, or necessary absence of a justice, at the time appointed for trial, another justice of the same township, may, at his request, attend in his behalf, and shall thereupon become vested with the power, for the time being, of the justice before whom the summons was returnable; in that case, the proper entry of the proceeding before the attending justice, subscribed by him must be made in the docket of the justice before whom the writ was returnable if the cause is adjourned, the justice, before whom the summons was returnable, must resume jurisdiction.”

We are of opinion that in sitting in the place of Justice Stauverman, in the trial of this case, Justice Smith was exercising the power of Justice Stauverman, with which Justice Smith was “for the time being,” “vested.”

The judgment was, for all ministerial purposes, that is, for all purposes not immediately part of the hearing, the judgment of Justice Stauverman. Of course this could not be for purposes of a motion for a new trial, or signing a bill of exceptions. Justice Smith’s assumption of power only lasted for the time being, and did not continue for ten days within which the appeal bond might be given.

We are of opinion that the appeal was perfected according to law, and that the court below erred in dismissing the cause.

Judgment reversed.


author: JELKE, J.

text:
    AGENCY — ESTOPPEL.
    [Hamilton (1st) Circuit Court,
    1903.]
    Swing, Giffen and Jelke, JJ.
    Chicago Cottage Organ Co. v. Emma B. Rishforth.
    Agency Established.
    To establish agency, one or the other of two things must be proven — either that the_ agency actually existed and the agent had the authority he assumed to exercise or that the principal is estopped from disputing it.
    John Ledyard Lincoln, for plaintiff in error.
    John W. Wolfe, contra.
   JELKE, J.

We incline to the opinion that where there has been an exchange of commodities, like a piano on the one hand and commissions and board on the other, not by way of barter, but on the basis of an agreed liquidated value for each respectively, so that the accounting and balance is stated by the parties in money figures, the commission and board may be treated as money, within the meaning of the word “money” as used in Sec. 4155-3 Rev. Stat., and its amendment in 95 O. L. 60.

We think the case of Buggy Co. v. Hord, 65 Mo. App. 41, 43, rather supports this view, and not the contention of counsel for the plaintiff in error. In that case the vendee claimed credit for some dishonored acceptances of his own, still in the hands of the vendor, and the court said that as between vendor and vendee they could not be treated as money; “this equity is available to the vendee only when by the omission of such entry he is in danger of suffering substantial injury.”

We do not think it is safe to follow analogies taken from the law of descent and distribution, because the body of the law on that subject has an origin, development and character of its own.

We do not, however, decide this proposition generally, because it is not necessary to a review of this case. We are of the opinion that to the extent that, in their subsequent compromise and settlement of December 8, 1898, the parties reduced their conflicting claims to a balance of an account, stated in money denomination, it must, for a determination of their rights under the law, be treated as “money.”

This brings us, naturally, to the consideration of the other alleged errors.

If the parties are to be bound by what they did on December 8, 1898, so that Mrs. Rishforth can claim credit as for money paid, the Chicago Cottage Organ Company is entitled to hold her to the express contract as then entered into by them, that is, a contract of mortgage, and not conditional sale. But she says, being alive, from experience, to the distinction between chattel mortgages and conditional sales, she secured certain parol modifications of the written contract from agents Price and Van Fossen. These oral charges are in direct contradiction to the writing. If it was within the scope of Price and Van Fossen’s agency to so modify, by parol, the written contract, of course their modifications bind the company. The scope of their agency is a question of fact to be found by the jury, under proper instructions from the court.

On this subject the.court below charged as follows:

“There has been some controversy about the authority of the agents of the Chicago Cottage Organ Co. The agents of the Chicago Cottage Organ Co. would bind such company for any act or promise or contract made by such agent with the defendant which was either within the actual scope of his authority, or such authority as the defendant, Mrs. Rishforth, acting as a prudent person under the circumstances, would reasonably believe such agent to possess. The written contracts or papers between the company and defendant are not conclusive upon such agent’s authority, but they, together with all the other facts and circumstances, should be taken into consideration by the jury for the purpose of determining what was the actual scope of the authority of such agent; or with the notice, if any, that she received thereby, would she, acting as a prudent person, reasonably believe such agent to possess such authority under the circumstances.”

This charge is essentially erroneous. It must never be forgotten that there can be no such a thing as an agent without a principal.

The facts and circumstances which justify an ordinarily prudent person in believing in the existence of a sufficient agency must be facts and circumstances for which the principal is responsible. The indicia of authority must be at .least by the permission of the principal.

It is true that, on account of the remoteness of the principal and the great show of business surrounding the agent, much has been read into the authority of agents, for the protection of the innocent public, and very slender evidence has at times been held sufficient to trace home authority; but the fundamental principle must not and cannot be lost sight of. The umbilical cord must be there.

On account of a tendency to obscure this principle in some cases, courts and writers of high authority have recently been emphasizing it.

The principle is correctly stated in an article by John S. Ewart, in the Harvard Law Review for January, Vol. 16, p. 187:

“Where a principal has by his voluntary act placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business; is justified in presuming that such agent has authority to perform a particular act and therefore deals with the agent, the principal is estopped as against such third person from denying the agent’s work.
“The important question is: What did such third person believe and have a right to believe as to the agent, from the acts of the principal? Johnson v. Investment Co., 64 N. W. Rep. 1100 [46 Neb. 480] ; approved in Holt v. Schneider, 77 N. W. Rep. 1086 [57 Neb. 523] ; Heath v. Stoddard, 40 Atl. Rep. 547 [91 Me. 499].
“As Lord Cranworth says: 'You prove one thing or the other— you must show that the agency did exist and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it.’ Pole v. Leask, 33 L. J. Ch. 162.”

Its last and highest expression is by the United States Supreme Court, in the case of Northern Assurance Co. v. Grand View Building Assn., 183 U. S. 308 [22 S. Ct. Rep. 133], decision rendered January 6, 1902.

The other errors complained of as to the admission of testimony offered by the agents are determined by the same principle.

Judgment reversed.


text:
    REFORMATION OF INSTRUMENTS.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    German National Bank v. Bode, Guardian.
    3. Description in Mortgage Will not be Reformed if to the Prejudice of Creditors Without Notice of the Mistake. ,
    A court of equity will not reform the description in a mortgage where the practical effect of such an act will be the creation of a new mortgage against specific property; upon the faith of the, freedom from encumbrance of which credit has- been extended to the mortgagor by a person having no notice of any mistake in such mortgage.
    2. Revivor can be had on Cross-Petition, When.
    If a revivor be necessary in a caSfe where a court of equity has acquired jurisdiction over property for the purpose of adjusting a lien upon it, it can be had as well on cross-petition as by an original action for that purpose.
    Two cases are here decided — German National Bank v. Bode, Guardian; and Bode, Guardian, v. Ruehrwein.
    A. H. Bode, for Bode, guardian.
    Stephens & Lincoln, for the German National Bank.
   PER CURIAM.

The case of Strang v. Beach, 11 Ohio St. 283, 286 [78 Am. Dec. 308], is so different in one of its essential features from the case at bar, that it is not an authority sustaining the judgment of the court below. Brinkerhoff, C. J., in Strang v. Beach, says:

“The cross-petition alleges, and the demurrer admits, the fact of mistake, and that the plaintiff, at the time he caused his attachment to be issued, had knowledge of the mistake, and of all Beach’s rights in the land. The fact of mistake, and the fact of notice, are admitted by the demurrer.”

In the finding of facts by the court below in the case at bar the court expressly finds that the German National Bank had no knowledge of any mistake until the filing of the petition herein; that the credit was originally extended on the faith of this property being unincumbered, and that after the execution and recording of the mortgage mistakenly describing lot 239, the loan by the bank was renewed on the continued faith of lot 240 being free of encumbrance. Strang v. Beach, supra, says that the mistake in the mortgage will he corrected as against attaching creditors and judgment creditors of the mortgagor and purchasers under them with notice of such mistake.

The case of Adams v. Stutzman, 6 Re. 612 (7 Am. Law Rec. 76), is an odd case, decided by the common pleas court of Holmes county and sustained on appeal to the district court. It seems very much in point and well considered, yet is not a controlling authority on this court. It will bear analysis and can be so distinguished from the case at bar, that we are not called upon to question it.

In that case the description was so defective that it failed to identify any land whatever. The defect was so glaring as to put a diligent creditor on the alert. In the case at bar the mortgage was duly executed and recorded, sufficiently describing an existing piece of property of the mortgage. The more searching the examination of the diligent creditor the more apt was he to be misled.

While the court in Adams v. Stutzman supra, boldly says that notice is immaterial, yet it covers itself against possible error on this point in the latter part of the opinion, where it finds that facts existed of record sufficient to bring home notice, both of an equitable mortgage, and the mistake.

If a defectively executed mortgage will not be reformed as against attachment or judgment creditors with notice (Bloom v. Noggle, 4 Ohio St. 45; Erwin v. Shuey, 8 Ohio St. 509, 510), because of the policy of the law to avoid all vexed questions of notice actual or constructive in determining priorities, a fortiori, a description ought not be reformed as against innocent and ignorant creditors, because as to them it is practically the creation of a new mortgage, and especially not as against specific property, on the faith of the freedom of which the unsuspecting creditor was induced to extend credit.

Judgment on this branch reversed.

Having decided the above, the error complained of in No. 3644 as to the adjustment and payment of taxes becomes immaterial to Bode, guardian, plaintiff in error. We are, however, of opinion that the court below was right in this regard. A court of equity having acquired jurisdiction over this property with the attachment lien upon it, the property being in chancery for the adjustment of this particular lien, a revivor may not have been necessary, but if it was, it certainly could be had as well on cross-petition as by an original action for that purpose.


author: SULLIVAN, J.

text:
    APPEALS.
    [Clark (2nd) Circuit Court,
    May Term, 1903.]
    Sullivan, Summers and Wilson, JJ.
    Robert A. Kefauver v. Franklin P. Batdorf.
    Right of Counsel to Sign Notice of Appeal.
    Under Sec. 5227 Rev. Stat., as amended 96 O. L. 12, a notice of appeal must be signed by the party or by his authorized attorney, but where the record shows that counsel signing a notice of appeal has been employed by appellant throughout the entire proceedings; that he is the attorney of record, and that he has signed papers in the action with appellant’s approval, his authority to sign such notice will be presumed and such presumption can only be overcome by clear proof.
    On Motion to dismiss appeal.
    Martin & Martin, for motion.
    D. F. Reinhoel, contra.
   SULLIVAN, J.

The defendant moves the court to dismiss the appeal taken in this case, for the reason that a written notice of appeal “as required by Sec. Rev. Stat., as amended October 33, 1903, 96 O. L. 12, was not given by plaintiff. The section as amended provides that a party desiring to appeal his cause to the circuit court, shall, within three days after the order or judgment is entered, file with the clerk of the common pleas court, a written notice of such intention and within thirty days after the entering of such judgment or order give an undertaking,” etc.

The notice filed and found with the papers in the case is signed in the following manner: “Robert Kefauver, by Reinnohl, his attorney.” The defendant contends that the record does not show that the attorney was authorized to sign plaintiff’s name to the notice, and that such authority cannot be presumed, though the record shows that the attorney named represented the plaintiff in the common pleas from the bringing of the action until it passed into judgment; that the above section as amended requires the notice to be signed by the party, and if the attorney signs his client’s name it must affirmatively appear that he was authorized to do so, and there is no presumption of such authority, arising from the fact that the record shows the attorney to have conducted the suit for appellant from the beginning of the action until the order or judgment appealed from was entered; that in this case the plaintiff, as appears from the record, was and is a non-resident of the state of Ohiu, and a resident of the state of Maryland, and that within the time that the notice was required to be given, the attorney could not have received authority. The motion was submitted upon the facts as shown by the record.

On the other hand, plaintiff contends that the section as amended does not require the notice to be signed by the party; that this was not the purpose of the amendment; that it was simply to avoid controversy between parties, as to whether notice of appeal had in fact been given, and when given.

The statute, Sec. 5227 Rev. Stat, prior to the amendment of October 22, 1902, provided, that “A party desiring to appeal his cause to the circuit court shall within three days after the judgment or order is entered, enter on the records notice of such intention.” Unless this notice was entered upon the record within three days, the right of appeal was lost, though the party may have given such notice verbally in open court, and the judge may have entered the fact of such notice upon his docket. The record alone determined whether the required notice had been given, and the time when entered, and the omission to enter the notice upon the record could not be remedied by nunc pro tunc. Therefore, the controversy suggested by appellant’s counsel could not arise.

The legislature had some object in view in amending the statute. It was not to have it appear of record that an appeal had been taken, for, as we have seen, before the amendment to the statute the notice had to be entered on the record. The section, now as well as before the amendment, provided that the party should enter the notice upon the record, but this was almost universally done by the attorney, and frequently without the knowledge of the party, and perhaps without any conference with the party whether he desired to take an appeal.

That it should appear of record that the party had, in fact, taken air appeal is, we think, the only reason apparent for the amendment. As to the necessity or wisdom of the amendment, we neither consider nor discuss. The section expressly provides that the party, and not the attorney, shall give the written notice, and for the purpose, we think, to have the record show that the party had taken the appeal.

“The right'of appeal exists only by virtue of the statute, and to give the appellate court jurisdiction the statutory provisions must be strictly followed.” Browne v. Wallace, 66 Ohio St. 57 [63 N. E. Rep. 588],

The party, however, may authorize his attorney to sign such notice. The remaining question presented here is whether this authority is presumed from counsel’s employment in the cause as shown by the record, or from the style in which this notice is signed.

Counsel for appellee contends that an attorney’s authority ceases when the judgment is rendered. After that he has no authority to act for and bind the party in the action, and hence no presumption of authority to do so arises. He further contends that the record shows that the residence of the party being in another state so remote from the court that it was impossible for counsel to have received express authority within the period that such notice was required to be given.

Upon the first point he cites two authorities which we have not considered fully, for the reason, we think they are not in point upon the state of facts presented in the case before us. The second, we think not well taken, for the reason that authority could have been given by the party, by other methods than by mail, and by the party before the case had passed into judgment.

The record shows the counsel signing the notice to have been employed by the appellant throughout the entire proceedings; that he is the attorney of record, and that his services were accepted by the appellant signing papers in the action with his approval.

“The act of the attorney in entering the appearance of a defendant carries with it a presumption of due authority upon his part to do so.” Garrison v. McGowan, 48 Cal. 592, 600; Harshey v. Blackmarr, 20 Iowa 161 [89 Am. Dec. 520].

If relief be sought against a judgment rendered after such entry of appearance upon the ground of want of authority of the attorney it is incumbent upon the party to make out a clear and unmixed case.

In the cases cited it did not appear from the record that the attorneys entering the appearance of the defendants had any authority to do so at the time it was done. In the case before us, it appears from the record that the attorney signing the notice was the attorney of the appellant from the beginning of the action and throughout the entire proceedings in the case, signing, during its progress, papers in the case. We are of the opinion, therefore, that his authority to sign the notice must be presumed, and such presumption could only be overcome by clear proof.

The motion, therefore, to dismiss the appeal is overruled.

After the court had disposed of the motion upon the submission upon the record, the appellee asked leave to offer testimony as to counsel’s authority to sign appellant’s name to the notice of appeal, which was refused; to which refusal, as well as to the overruling motion to dismiss the appeal, counsel for defendant, at the time, excepted.


text:
    HUSBAND AND WIFE — MORTGAGE—ESTOPPEL.
    [Hamilton (1st) Circuit Court,
    1903.]
    Swing, Giffen and Jelke, JJ.

      Insurance Company of North America v. I. J. Miller et al.
    1. Mortgage of Wife’s Separate Property — Surety of Husband’s Debt.
    Where it appears from the record that the wife’s separate property has been mortgaged to secure the husband’s note, it is evidence tending to show that her property sustains the relation of surety to his debt.
    2. Notice of Mortgage Covering Both Husband’s and Wife’s Separate Property.
    Where the mortgage covers both the wife’s separate property and property of the husband, the fact that the mortgage secures the husband’s note is sufficient to put any one dealing with husband’s property covered by said mortgage on inquiry as to the true relation sustained by the wife’s property, and to put the burden of proof on the one dealing with such property of the husband to show that the true relation of the wife’s property is different from that indicated by the record.

      3. Same — Purchase of Husband's Property — Past Due Indebtedness.
    The foregoing is especially true as to one who purchases such property of the husband, where the only consideration is the husband’s past due indebtedness.

      4. Estoppel by Passivity — Fraud not Essential.
    While fraud or bad faith is not essential to estoppel, it is a necessary ingredient in misrepresentation by passivity.
    5. Same.
    Innocent silence does not estop.
    Hiram D. Peck, for Mrs. Caldwell.
    Charles B. Wilby, for Mrs. Miller.
    Henry P. Kaufman,- for the Insurance Company of North America.

      In a per curiam opinion, June, 1902, of the Hamilton circuit court, it was held in the above case as follows:
      We find from the evidence that the relation of principal and surety existed between Mr. Miller and Mrs. Miller originally when the loan was had from the Cincinnati Savings Society, and are of opinion that the nature of this relation was not changed when the loan from the Insurance Company of North America was substituted.
      We do not find that Mrs. Miller consented to the extension of July 1, 1893, and are of opinion that that extension without her consent released her property.
      We are further of opinion- that the. stipulation reserving all rights did not save from the effects of such extension of time.
      Petition dismissed.

   JELKE, J.

We found before June, 1902, that the relation which Mrs. Miller’s property bore to Mr. Miller’s debt was originally, that of suretyship, and that the insurance company was both constructively put on inquiry by the face of the record, and had actual knowledge from the passage of the checks and the things which were done at the time the loan from the insurance company was substituted for that from the savings society.

Mrs. Caldwell, in 1896, was chargeable with what the record disclosed, but had no other knowledge of the facts. Mrs. Miller, in 1896, probably did not know the legal effect of what had been done or the true legal status of her property toward Mr. Miller’s debt and his creditor, the insurance company.

It is claimed on behalf of Mrs. Caldwell that, at the time the bargain was made between Mr. Miller and Mr. Caldwell which resulted in the deed to Mrs. Caldwell in which Mrs. Miller joined as grantor, Mrs. Miller, by her conduct, estopped herself from setting up her relation of suretyship as against Mrs. Caldwell.

We disregard the question of release as against the insurance company, because if Mrs. Caldwell’s claim is good it would be good whether or not there was a release by the insurance company. The evidence relied on to establish this estoppel is as follows:

“Q. What time did she buy it ?
“A. On June 23, 1896.’
“Q. The transaction was through you ?
“A. Yes, sir; it was through me.
“Q. Have you the deed?
“A. I have.
“Q. Refer to that deed and fix the time as near as you can.
“A. It was after June 23,1896. Some time after that in the same year,
“Q. Now state what Mrs. Miller said.
“A. I made the remark that I think if I get out of the workhouse, that I could build on that lot; that it would be a nice place to live, but I could not build as long as there was a mortgage on it. The statement of Mrs. Miller was, that they had got the street railroad there then, and she thought it would not be long until they could sell property enough to pay the mortgage off.
“Q. Was the question discussed as to any loss you might suffer by reason of the mortgage ?
“A. No, I think it was only discussed that the mortgage was only $10,000 while the property was a great deal more valuable.
“By the Court:
“Q. Who discussed that?
“A. If I recollect, Mrs. Miller made the statement, of course the property was worth a great deal more than the amount of the mortgage.
“Mr. Kaufman:
“Q. Did she speak of the property* specifically; did she say what property she referred to ?
“A. She spoke of it as our property.
“Q. This property owned by Mr. Miller and Mrs. Miller is one continuous piece ?
“A. Yes, sir.
“Q. There is no fence between ?
“A. No.
“Q. Mr. Miller’s property adjoins Mrs. Miller’s property?
“A. I think it runs right nearly to the house.
“Q. And it is used as one piece; there is a grass plot over the two pieces?
“A. Yes, sir.” (Record, pp. 34 and 25.)

Counsel for Mrs. Caldwell invoke the benefit of the law as stated in Smiley v. Wright, 2 Ohio 506 :

“Widow entitled to dower, present at the sale under order of court, and asserts that the sale may be made free from dower, in consequence of which the price is increased, is thereby barred of dower, although the purchaser was not ignorant of her title.”

This is a clear case of estoppel by misleading conduct as to the material fact, page 510 :

“Mrs. Smiley was standing in the door, the auctioneer being on the step, when it was struck off. That he heard the auctioneer frequently state that the sale was free of dower, while she was in a situation she must have heard him; and on one occasion replied to him she had no claim to dower.”

It was said in Rosenthal v. Mayhugh, 33 Ohio St. 155:

“It is not necessary to constitute such equitable estoppel that a party should design to mislead; it is enough if the act or declaration was calculated to and did in fact mislead another, who acted in good faith and with reasonable diligence.”

Counsel for both sides of this issue cite the case of Niemcewicz v. Gahn, 3 Paige 614, affirmed in the court of errors, Gahn v. Neimcewicz, 11 Wend. 312. As between the wife whose separate property was pledged as surety for her husband’s debt and his general creditors, Cowen, V. C, below, said, on .page 621:

“Since the execution of the mortgage, several judgments have been obtained against Gahn, which operate to encumber his interest jure uxoris. The judgment creditors are made parties, and one of the defendant’s points is that, in respect to the charge upon her land as surety, she shall be preferred to the judgment creditors; in other words, that she may take the place of the complainant, and have the husband’s interest jure uxoris applied to satisfy her as surety in the mortgage. This is right, provided it be attainable in this suit. She is entitled to what is called subrogation, i. e., to come round and be herself the mortgagee in place of the complainant; and holding that place, she of course takes preference to the subsequent encumbrancers. This is a familiar and perfectly well settled chancery rule; and Aguilar v. Aguilar, 5 Madd. 414, is this case precisely, only substituting judgment creditor for annuitant.”

And on this point the court above, per Mr. Justice Nelson, said on page 317:

“Generally so far as the interest of the mortgagee is concerned in these cases, he knows that the debt was the husband’s and that the separate interest of the wife would be in no way responsible for it, until she pledged it as security; at all events, without such knowledge he would not be affected by her character as surety, and with it I see no objection to the operation of the principles applicable to it; and if she is obliged to pay the debt, why should she be postponed to all other creditors? Their debts were not contracted upon the faith of her property, and the law has airead))- vested in the husband a portion of it which it must have deemed a fair equivalent for his obligation to support and maintain her.”

Counsel for Mrs. Caldwell cites the same case on the proposition that—

“It is not enough that it be known to him that the property mortgaged is the inheritance of the wife, and that the security was given for money loaned to the .husband; for, as the money may have been obtained for the benefit of the wife’s estate, or with a view of a gift to the husband, the fact of suretyship should be affirmatively established.”

And claims that the record is not enough to charge Mrs. Caldwell with knowledge of the suretyship. But what was there said was said as between the wife and the mortgagee, and we have heretofore found that the insurance company knew the relation.

“To make the mortgagee chargeable with the equitable rights of the wife, as surety for her husband, it must appear that he had notice of this relation. Such notice cannot be inferred merely from the fact that the money was paid to the husband, because he may have acted as his wife’s agent in the transaction. But if the mortgage be made to secure a pre-existing debt of the husband, the creditor is affected witli notice of the wife’s equity as surety, and in his dealings with the husband is bound by this knowledge.
“A husband and wife joined in executing two mortgages, accompanying his two bonds; all being given for the same debt. This was in' part a pre-existing debt of the husband and in part money advanced to him at the time. One mortgage was on his own lands, the other was on the wife’s inheritance. Held: (a) That the husband’s lands were the primary fund for the payment of the mortgages, and the wife’s became the secondary or auxiliary .fund for that purpose. She became the surety for her husband in respect of the latter, (b) That the suretyship is made out in such a case, by showing that it was the husband’s debt, or that he received the money advanced. If the money were used for the benefit of the wife or her property, or any circumstance exist which will defeat her claim to be regarded as a surety, it must be proved by the party alleging such fact.” Loomer v. Wheelwright, 3 Sandf. Ch. 135.

An examination of the records by Mrs. Caldwell would have disclosed that the mortgage given to the insurance company was to secure a pre-existing debt of Mr. Miller, i. e., to the saving society, but only a debt of the same, character. The record discloses that the $5,000, the consideration named in the deed, consisted of old debts of Mr. Miller to Mr. and Mrs. Caldwell with accrued interest. The Caldwells gave up choses in action for the property; they surrendered no security. The change in Mr. Miller’s responsibility is an incident to a lapse of time which was in no way contracted for.

In the case of Lewis v. Anderson, 20 Ohio St. 281, 286, the court quotes the following:

“ £As a general rule,’ says the chancellor in Padgett v. Lawrence, 10 Paige 180, 'a purchaser of the legal title who receives a conveyance merely in consideration of a prior indebtedness, is not entitled to protection, because he has lost nothing by the purchase. But the relinquishment of a valid security, which he before held for the debt, and which cannot be revived so as to place him in the same situation substantially as to security as he 'was in prior to the purchase, may of itself be sufficient to entitle him to protection as a bona fide purchaser/ Willard Eq. Jurisp. 256.”

We see no reason why Mrs. Caldwell should stand in any better relation toward Mrs. Miller’s property than either Mr. Miller or the insurance company, unless Mrs. Miller has made it so either by deed or estoppel in pais.

Mrs. Miller joined in the granting clause and released dower in the testatum clause of the deed to Mrs. Caldwell of this piece of Mr. Miller’s property. Now it is claimed that Mrs. Miller not only conveyed her dower, but whatever interests she may have had in this piece of property because her own property was surety for her husband’s debt. It is difficult to see how Mrs. Caldwell can say this when she especially claims that as against her Mrs. Miller’s property was not surety for Mr. Miller’s debt.

Either Mrs. Miller’s property was surety or it was not. If it were hot, then this particular interest did not exist and could not have been conveyed. If it were, then the interest growing out 'of this relation Mrs. Miller had in Mr. Miller’s property vanished long prior to the deed in 1896, when the release was worked in 1893, and this was so whether Mrs. Miller and Mrs. Caldwell or either of them knew it or not.

Further, whatever interest Mrs. Miller might at any time have had in Mr. Miller’s land, growing out of this transaction, in addition to her dower, would have its origin in principles of subrogation, and it is extremely doubtful whether it is such a real interest in land as would pass by deed.

And again, there is no equity in Mrs. Caldwell complaining because she did not get what under the evidence she could not have expected to get. .

We conclude that Mrs. Caldwell took no superior rights bn this issue by her deed.

We find as a matter of fact that in the conversation detailed by Mr. Caldwell in the testimony above set out, nobody present had this matter of suretyship in mind. That legal concept had its origin only after Mrs. Miller had consulted counsel. It was nevertheless imbedded in the facts and the law. That whole talk was but the expression of sanguine hope borne to all present by the accomplishment of things long planned and struggled for. Nobody then supposed that recourse would be necessary even to Mrs. Miller’s property. To say that the idea of suretyship was present would be fatal to Mrs. Caldwell’s case. On this subject Mrs. Miller’s conduct is to be characterized as “innocent silence.”

Herein is the difference between the case at bar and the case of Rosenthal v. Mayhugh, 33 Ohio St. 155. On this point the discussion of “Misrepresentation by Passive Assistance” by John S. Ewart in his work on Estoppel, is so able and apt that we would spoil it to talk about it, and as it is too long to copy into this opinion we adopt it by reference, beginning on page eighty-eight to the bottom of page ninety-two. Likewise his discussion of the case of Pickard v. Sears, 6 Ad. & Ell. 469, cited and relied on by Mrs. Caldwell’s counsel, on pages ninety-two and ninety-three of the same work, showing how the principle of that case is not exactly applicable to cases like the one at bar.

We, therefore, see no reason why we should vary as to Mrs. Caldwell’s property, the conclusion we came to, as against the insurance company.

Decree accordingly.


text:
    TAXATION.
    [Hamilton (1st) Circuit Court,
    1903.]
    Swing, Giffen and Jelke, JJ.
    Lea M. Shields v. John H. Gibson (Treas.).
    Title by Devise Does not Prevent Correction of Error in Taxation.
    Title passing by devise is not such a change of ownership as to prevent a correction of errors by the auditor under Sec. 2803 Rev. Stat.
    W. M. Ampt, for plaintiff, cited:
    1. Where an annual assessor returns a new structure and.accurately describes the lot upon which it is erected, it is the county auditor’s duty to charge up the valuation thereof to the tax valuation of such lot. Secs. 2753, 2801 Rev. Stat.
    2. If the assessor described the wrong lot the auditor cannot transfer the value of the house to the lot on which the house was erected as a correction of his duplicate under Sec. 1038 Rev. Stat. This section only permits the correction of errors which appear upon the face of the auditor’s duplicate. Had the assessor returned the house on the correct lot, but the auditor charged it on a' wrong lot, then he had the power to transfer the value to the lot as returned by the assessor. Secs. 1038, 2800 Rev. Stat.
    3. An error of the assessor as above described could be corrected by the board of equalization fixing a value thereon under Sec. 2804 Rev. Stat., or by the county auditor under Sec. 2802 Rev. Stat., upon due notice to the owner. The board took no action and the auditor fixed no value by his own action or that of an assessor, but transferred the assessor’s valuation of 1895 and that without any attempted notice except a letter to the then deceased owner — the mother of the plaintiff. In fixing a value the auditor must pursue the rules prescribed by statute for valuing real property, that is an actual view, or the action of an assessor then in office. Secs. 1448, 2790, 2793, 2802 Rev. Stat.
    4. The house was an old one bought from another and removed from the lot on which it had been erected to the lot upon which the assessor sought to change it. Its tax valuation on the lot from which it had been removed as fixed at the decennial equalization of 1900 was $1,750. Therefore, if the auditor had the right to omit to assess a valuation therefor, he should have charged up $1,750 instead of $3,500.
    5. The plaintiff became the owner of the property by devise from her mother, who died August 9, 1900. The auditor made the addition and charged up back taxes on December 13, 1900, nearly four months thereafter. The acquisition of the property by will was within the meaning .of Sec. 1025 Rev. Stat., a change of ownership, and back taxes for a period previous to such change could not be charged up against the new owner. Lohaus v. Haggerty, 4 Circ. Dec. 657 (7 R. 408) ; Neave Bldg. Co. v. Brooks, 6 Circ. Dec. 280 (9 R. 151, 159). Contra, Scott v. Raine, 11 Re. 171 (25 Bull. 154).
    The statutes require property to be charged to the owner thereof. Secs. 1034, 2789, 2793, 2800 Rev. Stat. And Sec. 1025 Rev. Stat. specifically provides how changes of ownership shall be noted on the tax duplicate and makes no distinction between ownership arising by devise or even descent and that arising from a deed of conveyance. For this reason plaintiff claims that even if the value of the house was property ascertained by the auditor no tax could be charged for an}' period anterior to August 9, 1900, when by the death of Margaret A. Shields the property descended by will to the plaintiff, Lea M. Shields.
    Wilson, Cosgrave & Jones, contra.
   JELKE, J.

The facts of this case are presented by findings made by the court below, and are as follows:

“1. In 1894, Margaret A. Shields owned two lots in different subdivisions in the twenty-eighth ward of Cincinnati, Hamilton county, Ohio, about one mile apart, described as follows:
“ ‘Lot 21-25 feet McMillan’s of four-acre tract.
“ ‘Pt. lot 21, McMillan’s of eighty-acre tract/
“2. In 1894 or 1895, she bought an old house from Benjamin Evans, which was then valued on Evans’ property for taxation at $1,750, as distinct from the lot on which it stood, and moved it upon lot '21 of McMillan’s four-acre tract, erecting it there upon a new cellar and foundation and built a basement story under it, and converted it into an apartment house.
“3. In 1895 the annual assessor of the twenty-eighth ward of Cincinnati, having examined said house and appraised the same at $3,500, made an official report as to new structures in that ward to the county auditor, under the provisions of Sec. 2753 Rev. Stat, in the following words:
“ Tn the twenty-eighth ward the following is a correct report of the kind of structure, and the value of which, in my opinion, has been added to the lots or tract of land by the erection thereof, on the day preceding the second Monday of April, 1895.
“ 'Where the building was reported in a previous year as unfinished, the amount here returned as total value and the amount then returned is deducted. Where an old building has been removed in whole or in part from the ground now occupied by a new structure, the part so removed has been by me deducted in making the assessment, and the difference is the amount here reported.
“ ‘ Daniel ICocii, Assessor,
“ ' 416 Shillito Street.
“ 'May 6, 1895.
sfc % íK í]í íK >j<
Shields, Margaret A., pt. 21 McMillan of eighty-acre tract, three-story frame, total value of new structure, $3,500, amount to be added to 1895 duplicate for new structure, $3,500. Finished.’
“Which entry was intended to apply to said house, and said addition was intended to be made to the lot on which said house was situated.
“4. ’ The board of supervisors, sitting as an annual board of equalization, considered the report of all the annual assessors, and examined each and every piece of property where changes had been made, and madejno change in the valuation as so reported by the said assessor of the twenty-eighth ward, but allowed their action, being as shown on page 206 of their minutes, a transcript of which is attached hereto, marked 'A.’
“5. The county auditor entered the $3,500 as an addition to the tax valuation as reported by the assessor against the property standing in the name of Margaret A. Shields on duplicate as pt. 21 McMillan’s eighty-acre tract.
“6. Margaret A. Shields died August 9, 1900, leaving a will which was probated August 24, 1900, under which ,Lea M. Shields was appointed executrix and qualified as such, which will directed the pay-’ ment of all just debts, and devised one-half of the residue of her estate, real and personal, to her daughter, Lea, plaintiff herein, and one-fourth to her daughter, Mary, and one-eighth to her son, William, and one-eighth to her son, Lawrence Shields. On March 21, 1901, petition was filed in case No. 6482, probate court Hamilton county, Ohio, by Lea Shields as executrix of the estate of Margaret A. Shields, deceased, against said Lea M. Shields, Mary C. Shields, Lawrence Shields and William A. Shields and his wife, and Alexander M.’ Shields and his wife, to sell the real estate described in the petition to pay the debts of said, Margaret A. Shields, deceased. And proceedings were had thereunder, whereby said premises were sold for $3,600 to Moses Goldsmith at private sale of June 22, 1901, and said sale was approved and confirmed by the court, June 24, 1901, and said executrix ordered to execute a deed therefor, which deed was duly executed, June 24, 1901, and recorded June 25, 1901, in Deed Book 862, page 213. On distribution of proceeds of said sale no order was made by said court for any payment of taxes out of same. County treasurer was not a party to said cause.,
“On April 17, 1901, Mary C. Shields and Lawrence Shields brother and sister of said Lea M. Shields, both unmarried, executed a quitclaim deed to said Lea M. Shields of their interest 'in the real estate described in the petition, as did William A. Shields and wife, which deeds were recorded June 25, 1901, in Deed Book 860, page 502, and Deed Book 861, page 311, respectively.
• “And on June 24, 1901, said Lea M. Shields individually executed a quitclaim deed to Moses Goldsmith in consideration of $1.00 and other considerations of said real estate described in the petition, in which was contained the following condition:
“ ‘But this conveyance is hereby made subject to a vendor’s lien in favor of said grantor herein for the sum of $506.63 (five hundred and six and 63-100 dollars), which said amount has been retained out of the purchase-money by said grantee for the payment of certain taxes added by the auditor of Hamilton county, Ohio, being $461.16 back taxes and $45.47 taxes added payable in December, 1900, the legality of which said additions is by said grantor disputed, and said grantor agrees with said grantee that she will at once institute proceedings in court to test the legality of said additions and to remove them from the property herein described either in whole or in part and to prosecute proceedings with due diligence, and said grantee agrees to pay said amount in his hands to said grantor whenever said tax lien is removed from said title by payment or otherwise.’
“7. J. D. Parker having bought from Margaret A. Shields the real estate described as part of lot 21 of eighty-acre tract, on January 14, 1898, redeemed said property from the forfeited list by paying the delinquent taxes, including the taxes charged on the $3,500, and on November 5, 1900, made claim for a refunder of taxes on the excess valuation of $3,500, as said lot so redeemed was a vacant lot and said charge had been erroneously made upon said part lot 21 of McMillan’s eighty-acre tract, when it should have been charged against lot 21 McMillan’s four-acre tract. The auditor having investigated said claim, *a refunder was allowed on November 17, 1900, for $461.10, and on November 23, 1900, a remit given for taxes on said $3,500 excess for the then current year, amounting to $90.92, making in all $552.08. Shortly afterwards, the auditor, not knowing that Margaret A. Shields was dead, directed a letter to her notifying her to appear to show cause why an addition should not be made to the tax valuation of lot 21, McMillan’s four-acre tract, of the $3,500 valuation for the omitted building upon said lot which had been erroneously charged to the lot sold to said Parker. And on or about December 13, 1900, not hearing from Margaret A. Shields, and the letter mailed to- her address not having been returned, although it had his return card upon the envelope, the auditor made said addition and charg-ed up the taxes for said omitted building against said lot 21 of McMillan’s four-acre tract, which had been theretofore charged on pt. lot 21 of McMillan’s eighty-acre tract, in.the following entry upon the subsequent additions on the tax’ duplicate for the year 1900, then in the hands of the auditor and treasurer.
“ ‘Shields, Margaret A., lot 21-25 feet McMillan’s of four-acre tract, house, $3,500; taxes due December 20, 1900, $45.465; taxes due June 20, 1901, $45,465; $461.16. Add to regular taxes 1895, 1896, 1897, 1898 and 1899. No Pen.
“‘Was erroneously charged to J. D. Parker.’”

Section 2803 Rev. Stat. provides:

“In all cases where any county auditor shall discover, or have his attention called to the fact, that any assessor in any previous year shall have omitted to return, or shall in any future year 'omit to return any lands, town lots, or any improvements, structures or fixtures thereon, subject to taxation, situated within his county, or if any such property has escaped taxation by reason of any error of said auditor, it shall be the duty of said auditor to ascertain the value thereof for taxation, as near as may be, and to enter said lands, town lots or improvements, upon the duplicate' of the county, then in the hands of the county treasurer of such county, and to add to the taxes of the current year the simple taxes of each and every preceding year in which such property shall have escaped taxation, as far back as the next preceding decennial appraisement and equalization of real estate in his county, unless in the meantime such property shall have changed ownership, in which case only the taxes chargeable since the last change of ownership shall be added, or the owner of such property may, if he desires, pay the amount of such taxes into the county treasury, on the order of said auditor.”

Under this provision of the statutes the auditor of the county was authorized to enter upon the duplicate of- the county the improvement erroneously charged to another lot, unless title by devise is such a change of ownership as is contemplated in such section of the statutes.

Counsel for plaintiff relies upon the case of Lohaus v. Haggerty,4 Circ. Dec. 657 (7 R. 408), and on the strength of this case the court below decided against the county. In that case, a tax sale was held to be within the provisions of Sec. 2803 Rev. Stat., so as to prevent the “Dow tax,” which had erroneously been charged to another lot, from subsequently being charged against the lot sold.

There are two points of essential difference between that case and the case at bar: First, money had been expended by the tax purchaser upon the faith of the duplicate; and second, the “Dow tax” is a special tax in no way based upon the valuation of the property and there would be nothing on the records in regard thereto to put a purchaser on notice.

In the case of Scott v. Raine, 11 Re. 171 (25 Bull. 154), in the superior court of Cincinnati, Judge Hunt, on page 188, said:

“The term 'owner’ in Secs. 1040 and 2803 cannot be enlarged more than to include such a bona ñde purchaser of the property as estops the state from the assertion of a. claim against the property for taxes which at the time of the purchase were not on the duplicate and of which the purchaser could not be advised. There can be no good reason why the heirs of a decedent or the devisees of a testator, or the donee by deed of gift, or the lessee for a term of years should be exempted from the taxes legally due upon the land which but for this change of ownership the state would have been able to collect. They have not parted with anything of value on the faith of the condition of the duplicate, which is the very reason of the law itself. No such construction can be permitted. It would seem that the decision in Davis v. Cincinnati, 36 Ohio St. 24, is conclusive as to what the term 'owner’ means, in so far as taxes and assessments are concerned, and assuming that Davis was the owner of a lease for a term of years with all the obligations to pay taxes and assessments as between him and the lessee, nevertheless the term ‘owner’ in the statute referring to assessments — and certainly by fair implication referring to taxes — means owner in fee. Change of ownership therefore means a change in ownership in fee, by a bona fide purchase, in order to estop the state under Secs. 1040 and 2803 from the collection of taxes, which but for those sections would otherwise be collected.”

We think this is sound and applicable to this case.

The case of Neave Building Co. v. Brooks, 6 Circ. Dec. 280 (9 R. 151), is a case of change of ownership for value, and that this was of importance in the minds of the court is shown on page 153 :

“The six grantors in said deed owned and held shares in the capital stock of said corporation, some in proportion and some in excess of their respective interests in the lot at the time of the conveyance. Said trustees, as such, did not at any time hold or own any shares of said stock. Persons other than those named, who never had any interest in any of said land, held and owned shares of said stock from the organization of the corporation up to this time.”

The Supreme Court said in case of Markle v. Newton, 64 Ohio St. 493:

“The duplicate would have the effect of notice by public record, and a person thereafter acquiring the property could not claim the protection of a bona fide purchaser. What the rights of a purchaser may be, against the state, must depend upon the facts of his case.”

In our opinion the purpose of this provision is to protect a bona fide purchaser who might rely on the duplicate as it appeared at the time of his purchase.

The devisee has parted with nothing upon the faith of the record, but has become the owner of the lot by devise, subject to the payment of the debts of the testator, and the omitted taxes are in the nature of a debt entitled to a specific lien.

Petition dismissed.


text:
    ATTACHMENT — ERROR.
    [Hamilton (1st) Circuit Court,
    1902.]
    Jelke and Swing, JJ.
    Mabel Howard Martin v. Austin Gunnison et al.
    Reviewing Court Acquires no Jurisdiction by Filing Petition in Error Without Undertaking.
    Where a petition in error, to an order dismissing an attachment, is filed in the reviewing court within the time prescribed by Sec. 5563b Rev. Stat., but no undertaking was given within the time specified in the judgment below, the reviewing court acquires no jurisdiction over the attached property.

      This is an action wherein the plaintiff in error, Mabel Howard Martin, brought suit in the common pleas court against Austin Gunnison et al., and secured an attachment and garnisheed certain moneys in the hands of the Standard Oil Company. On demurrer to the petition the, action in the common pleas was dismissed and the attachment and gar-> nishment was discharged and the plaintiff in error was given thirty days (under Sec. 5563b Rev. Stat.) to file petition in error and undertaking to the defendants, Austin Gunnison et al., as therein provided. The plaintiff in error herein filed her petition in error, but failed to file any undertaking. After, the expiration of the time specified in the judgment entry in the common pleas, the defendant in error, Austin Gunnison, made demand on the garnishee, the Standard Oil Company, for payment, which refused to pay unless ordered by court. Thereupon Austin Gunnison filed a motion in the circuit court for an entry declaring the attachment and garnishment to be discharged.
    Joseph Cox, Jr., for A. Gunnison, cited:
    Any judge of the circuit court may hear and decide a motion to discharge an attachment in vacation. Section 5562 Rev. Stat.
    The failure of plaintiff in error to file bond required by the judgment rendered in the court below within the thirty days fixed by said court, of itself released the attachment and garnishment herein and the lien of such attachment. Section 5563b Rev. Stat.; Sibley v. Oil Co. 9 Re. 399 [12 Bull. 308],
    Horstman & Horstman, for Mabel H. Martin, cited:
    3 Western Law Monthly 301; Story, Eq. PI. Sec. 708, note; 17 Am. & Eng. Enc. Law (1 ed.) 561, 566, 570; Masters v. Freeman, 17 Ohio St. 323; Pickering v. De Rochemont, 45 N. H. 67; Speakman v. Tatem, 17 Atl. Rep. 818 [45 N. J. Eq. -388]; Fletcher v. Telephone Co. 35 Atl. Rep. 903 [55 N. J. Eq. 47, 52] ; 5 Duer (N. Y.) 168; Van Wart v. Price, 14 Abb. Pr. (N. Y.) 4; 59 How. Pr. (N. Y.) 24; 16 Hun (N. Y.) 556; 38 Hun (N. Y.) 291; Power v. Hathaway, 43 Barb. (N. Y.) 214; Hubbard v. Burrell, 41 Wis. 365; Eldredge v. Putnam, 50 N. W. Rep. 595 [46 Wis. 205] ; Piatt v. Oliver, 2 O. F. D. 55 [2 McLean 267] ; Dorr v. Gibboney, 3 Hughes (U. S.) 382, 384; 7 Fed. Cas. 923; 1 Enc. PI. & Pr. 988; Corbett v. Packington, 6 Barn. & Cr. 268; 2 Greenleaf, Evidence Par. 208; 1 Shinn, Attachment Par. 16, p. 22; Strode v. Little, 45 Pa. St. 416; Lennox v. Holland, 3 Caines (N. Y.) 323; Runyan v. Morgan, 26 Tenn. (7 Humph.) 210; Farmers Nat. Bank v. Fonda, 32 N. W. Rep. 664 [65 Mich: 533] ; Farwell v. Myers, 31 N. W. Rep. 128 [64 Mich. 234] ; Pennsylvania Ry. Co. v. Peoples, 31 .Ohio St. 537; S. C. V. Peat Fuel Co. v. Tuck, 53 Cal. 304; Elwell v. Martin, 32 Vt. 217; Baldw. 66, 142; 2 Car. L. R. 409; Rogers v. Daniell, 90 Mass. (8-Allen) 343; Prescott v. Ward, 92 Mass. (10 Allen) 203; Farrelly v. Ladd, 92 Mass. (10 Allen) 127; Catlin v. Birchard, 13 Mich. 110; Derome v. Vose, 5 N. E. Rep. 478 [140 Mass. 575]; Gould v. Emerson, 99 Mass. 154, 157; Underwood v. Bank, 4 N. E. Rep. 822 [141 Mass. 305]; Gannon v. Ruffin, 24 N. E. Rep. 37 [151 Mass. 204] ; Henchey v. Henchey, 44 N. E. Rep. 1075 [167 Mass. 77]; Chase v. Perley, 19 N. E. Rep. 398 [148 Mass. 289]; Minchin v. Minchin, 32 N. E. Rep. 164 [157 Mass. 265] ; 22 Enc. PI. & Pr. 137, 138; Vincent v. Rogers, 30 Ala. 471; Reade v. Trust Co. 27 Misc. (N. Y.) 435; Rathbone v. Stocking, 2 Barb. 135; Husted ,v. Thompson, 53 N. E. Rep. 20 [158 N. Y. 328]; Congdon v. Cahoon, 48 Vt. 49; 2 Perry, Trusts (5 ed.) Sec. 843, p. 529, foot; 2 Perry, Trusts Sec. 843, p. 531, foot; 2 Lewin, Trusts 857; 2 Lewin, Trusts 906, 1216, foot; Beach, Trusts Sec. 690, pp. 1581, 1583, 1584; 2 Story, Eq. Jurisp. (13 ed.) Sec. 1285, p. 630; 4 Kent’s Commentaries 307; 6 Am. & Eng. Enc. Law (1 ed.) 721.
   PER CURIAM.

We are of opinion that the plaintiff in error having faded to give bond within the prescribed time in accordance with the order of the common pleas, the attached property was never brought into this court and that this court has no jurisdiction of the same, and, hence, can make no order of any kind in regard to the same or pass upon the motion of the defendant in error. If any further entries or orders of court are necessary they must be sought in the court of common pleas.