text:
    AN ABANDONED BURYING GROUND REVERTS TO FORMER. OWNERS.
    Court of Appeals for Licking County.
    City of Newark v. Harriet B. Crane et al; and City of Newark v. James W. Burnette et al.
    Decided, May, 1914.

      Land Dedicated for a Specific Use Can Not be Diverted to Other Uses —Municipality Can Not Hold as Trustee and Adversely — Fee Remains in the Heirs of the Patentee — And Upon Abandonment of the Original Purpose of Dedication the Land Reverts to Them — ■ Common Law Dedication — Statute of Limitations — Adverse Possession.

    1. Where an owner dedicates land to the public for a particular use, specifying the use and imposing restrictions for the dedication as expressed the land can not be applied to any other use or the restrictions disregarded.
    2. A city holding land as trustee for the use of the public as a cemetery can not, at the same time, hold it adversely and for its own benefit.
    3. Where land was dedicated to the town of Newark for a burying ground, and the city council of said town subsequently passed an ordinance prohibiting any further burials in the land so dedicated and ordering the removal of the remains buried therein, the ordinance was a valid exercise of the police power of the city and operated as a complete abandonment of the dedicated use and the land would revert to the original owner, or his heirs. When the property is no longer desired, or the purpose for which it -was dedicated attainable, it will revert to the dedicator.
    4. Upon abandonment by a towm of the public purpose of the dedication of the land, the property reverts to the original donor.
    5. Where a city or town has by its own act abandoned the use and violated the conditions’ specified in a deed, it can not retain the grounds for any other purpose.
    6. That a city may acquire title to land under the statute of limitations, by such adverse possession as is necessary to convey such title to land is not doubted: but the very foundation elements of adverse possession are wanting when the only possession is permissive possession for a dedicated use and while the city holds control of these premises as a grave yard the defendant could not ' take possession.

      7. A common law dedication does not convey a fee.
    8. In the Burnette case the fee in the land never passed out of the heirs- of the patentee, but were subject only to the use of the public as a cemetery, and where the city abandoned that use the premises revert to the descendants of the patentee free from the dedicated use. Such dedication, if. there were any dedication, was a common law dedication, and its use would be merely permissive, and not adverse and the town or city of Newark would have no title and no other possessory rights; and the use and control of the grounds was not adverse to the dedicated use. In such case its use would not start the statute of limitations. Nothing but an open, notorious, visible, hostile and inconsistent act of possession could have that effect.

      Ralph Norpell, City Solicitor; and Fitzgibbon, Montgomery & Black, for plaintiff.

      Owen Nash and Craighead & Van Pelt, contra.
    Voorhees, J.; Shields, J.. and Powell, J., concur.
   These eases were submitted together.

It will be sufficient in order to present the real issues in this case to state the following facts:

In January, 1801, a patent was issued to John Cummings, John Burnette and George W. Burnette, for section four, township two, range twelve, containing 4220 acres of land, and the premises embraced in the controversy in this suit, that is, the grave-yard, were a part of said section.

On May 15 and 19, 1814, John and George W. Burnette having died, the heirs of George W. Burnette conveyed their interest in said premises to John N. Cummings and John W. Burnette and Harriett Burnette, heirs of said John Burnette.

On December 6 and 14. 1814, John W. and Harriet Burnette and John N. Cummings, deeded to William O. Sehenck an undivided interest in said land, amounting to a one-third interest in the whole tract. The recitals in this deed and the other deeds mentioned exhibit the chain of title and the amount of their respective shares, and show the relation of the parties and their respective shares in said land.

On June 20, 1817, an amicable partition suit was begun between Cummings, Schenck and James W. and Harriet Burnette, for the partition of the residue of the lands which remained unsold. This land included both inlots and outlots in the town of Newark, Ohio. It is not claimed that the lands known as the grave-yard were set off to anybody in said partition proceedings. The plat in partition record A, June term, 1817, of the Court of Common Pleas of Licking County, Ohio, page 7, attached to the record on page 9 of the bill of exceptions shows the old grave-yard.

The plat on page 7 in the record of said partition suit, is the only one of importance in this case. This plat shows the shape and boundaries of lot F, which was set off to the Burnettes, and which cornered on the grave-yard. This plat also shows the three-cornered strip subsequently deeded to the town of Newark by Crane and wife, in 1848, ‘ ‘ for the sole purpose of being used as a burying ground for the use of said town of Newark and for no other purpose whatever. ’ ’

In all these conveyances and proceedings the body of the graveyard remained unchanged and undisposed of. Just when the grave-yard was originally laid out as such is not disclosed, but it was a grave-yard in 1871. It is not contended that it was ever deeded to any person or association for that purpose. The only deed is for the small three-cornered addition made in 1848. It is not contended or claimed that there was any statutory dedication or any proceeding to condemn or appropriate this ground for a grave-yard and the right of the public to use it for such purposes arises, if at all, by way of common law dedication, based on the fact that the original owners permitted it to be used for that purpose.

On February 8, 1826, the town of Newark was incorporated, and the municipal authorities in November, 1868, prohibited any further burials in this grave-yard.

On July 29, 1875, an ordinance was passed by the council of said town, among other things providing for notices to friends to remove the bodies buried therein by November 1 of that year, and authorizing the cemetery trustees to proceed after that date to have the bodies and tombstones removed.

On November 4, 1875, a resolution was passed referring the matter of removing the remains of parties buried in the old grave-yard to a special committee consisting of the cemetery trustees and three citizens, which would indicate that the bodies had not been removed.

On September 20, 1877, a further resolution was adopted by said council, reciting the dilapidated condition of the cemetery, et cetera, and directing the trustees to expend some money to repair and improve the cemetery. 'These proceedings were reported to the cemetery board and it employed two persons to make a plat of the ground and graves, taking care to preserve the monuments and tombstones, so that Ihe same and' the remains might be removed and the ground leveled off. A plat was prepared, beginning with the year 1850, under date of 1878.

On April 14, 1882, the board of education of Newark instituted a proceeding against the trustees of Newark township and the city of Newark and the unknown heirs of Cummings, Burnette, Crane and Schenck, to condemn the ground known as the old grave-yard for a school house site. A jury was impaneled and a verdict returned assessing the value of the premises in three tracts aggregating $7,500. In that proceeding the then solicitor of the city filed what he called an answer, asserting that the city was the real owner.

The heirs of Cummings, Burnette, Crane and Schenck, also filed an answer alleging that they were the owners in fee of the property. The court ordered that when the money was paid in the respective l'ights thereto should be determined. The board of education never paid in the money and there the matter rested.

In 1888 the picket fence, which, had been put up in 1878, was removed and put up in Cedar Hill Cemetery. Instead of removing the grave-stones, as had been ordered in 1878, those doing the work laid them down in the graves and covered them up. One monument still remains standing. How many old graves are still in the ground can not be now definitely known; but the testimony shows that many of the.se graves and grave-stones are very, very old.

In the reply and testimony in the Crane case it was shown that most of all the burials in the cemetery were before the date of 1848, and Mr. Vanatta says, “that with no burials since 1860 or 1868, very little can be left of any remains; all or nearly all have necessarily disappeared.”

On September 11, 1905, the council of said city of Newark passed an ordinance selecting these grounds as a site for a proposed municipal hospital.

On March 6, 1906, these suits were brought by the city to quiet its alleged title in fee, claiming, in the Burnette case, that it has ever since November 20, 1868, been in the open, exclusive, adverse and visible possession of the premises involved in that suit (the Burnette suit), and has thereby become owner, and in the Crane case claiming ownership under the deed of the date of February 14, 1848. These claims the defendants absolutely deny.

In 1909, while these eases were pending and after the answers had been filed, the plaintiff city entered on the premises, laid cement walks diagonally across the same, built a fountain in the center; laid pipes, and strung electric wires, claiming that the premises had become a common and public park. These structures were put up on the premises for the purpose of improving them as the Sixth street park, as stated in the proceedings of the board of public service by the resolutions of July 6, 15 and 24,1909. The photographs introduced in evidence tend to show the grounds now to be a park and that the city has completely abandoned the use of these premises as a cemetery.

The facts admitted in the pleadings may be summarized as follows:

In the Crane case:
1. Burials have been prohibited since 1850.
2. Burials were prohibited by ordinance in 1868.
3. The Crane deed of 1848 contained restrictions as to the use of the land, stating that it should be used for the sole purpose of a “burying ground, for the use of said town of Newark, and for no other purpose whatever.”
4. That as early as 1850, Cedar Hill Cemetery was used.
5. That in 1868 and 1875 -remains were ordered removed to Cedar Hill.
6. That the school board instituted proceedings in 1882 to appropriate said land for school purposes.
7. That fences around the grave-yard were ordered removed in 1888.
8. An ordinance was passed by the council to establish a hospital in 1905.
9. A resolution was passed by the council ordering that the remaining bodies and the tombstones be removed.
10. A fountain and other structures for a park were erected by the city.
11. Most of the .bodies had been buried in said cemetery prior to 1848.

In the Burnette case:

1. Burials were prohibited as early as 1850.
2. Burials were prohibited by ordinance in 1868.
3. The premises were used as a burial place from 1817 to 1868.
-4. Cedar Hill was established about 1850 and has ever since been continuously used as a grave-yard.
5. Burials in said cemetery in the Burnette lands or premises were prohibited in 1868.
6. All remains and tombstones- were ordered removed in 1875.
7. Proceedings of the board of education to appropriate the premises for school purposes were instituted in 1882, but never completed.
8. The fences around said cemetery were removed in 1888.
9. Proceedings were had by council to appropriate said premises for a hospital site, but never consummated.
10. A fountain and other structures for a park were erected by the city on the premises.

It is unnecessary to go into detail as to the various acts and proceedings had by the town of Newark with reference to the lands and premises involved in these suits. For the purposes of this opinion, it will not be necessary to refer to the facts, ordinances, resolutions and acts of the town of Newark, further than to say that the only deed executed was the Crane deed, of 1848, for the three-cornered strip.

At the-January term of the court of common pleas, to-wit, January 25, 1912, it was ordered, adjudged and decreed, among other things, that the petitions of the plaintiffs in eases numbered 13789 and 13790 be, and the same were dismissed.

The causes came into this court on appeal from the court of common pleas. They have been ably argued by council on both sides by briefs, as well as by oral argument. In the short time this court has had to consider the questions involved, and to assign reasons for its conclusion, it can not be expected that we will go into-much detail in stating our conclusions.

By the deed executed in 1848, by Crane and wife to the said town of Newark, the three-cornered strip, shown by the plat, was deeded ‘1 for the sole purpose of a burying ground and for no other purpose whatever. ’ ’ This conveyance was to the municipal corporation of the town of Newark, for a public purpose, namely: for a burial ground, and for no other purpose. The town of Newark abandoned said premises as a burial ground, as shown by the various acts of the municipality and, therefore, the title reverts to the original owners or their heirs, by the plain terms of the deed.

In the case of South Park Commissioners v. Montgomery Ward & Company, 93 N. E., 910 (248 Ill., 299), it was held:

“Where an owner dedicates land to the public for a particular use, specifying the use and imposing restrictions, if the dedication is accepted the land can not be applied to any other use or the restrictions disregarded.”

In the case of Kansas City v. Scarritt, 69 S. W., 283 (169 Mo., 471), Syllabi 1 and 2 are as follows:

“1. A square was marked ‘donated for grave-yard,’ on an original plat filed by the owner with the recorder of deeds. Five years later a city was incorporated, including within its limits the grave-yard. Held: That the legal title to the square remained in the original owners, subject to the use of the public, for the purpose of dedication; it not having passed to the city by dedication, as the latter was not in existence at that time.
“2. A city holding land as trustee for the use of the public, as a cemetery, can not at the same time hold it adversely and for its own benefit.”

Mayor, etc., of City of Newark, New Jersey, v. Watson et al, 56 N. J., 667 (29 Atl., 487), Syllabus 2:

“The plaintiff, a municipal corporation, held lands under a grant from the proprietors of East Jersey for burial purposes, to be appropriated for no other use or uses whatsoever. An ordinance of the mupicipality and an act of the Legislature prohibited the use of such lands for burial purposes. Held: That the title to the lands thereby reverted to the proprietors.”

In the case of Fulton (Village), Lessee of, v. John Mehrenfeld, 8 O. S., 440, we find the following citations:

“Where land was dedicated to the city of Youngstown for a burying ground, and the city council of Youngstown subsequently passed an ordinance prohibiting any further burials in the land so dedicated, and ordering the removal of the remains buried therein, the ordinance was a valid exercise of the police power of the state and operated as a complete abandonment of the dedicated use, and the land would revert to the original owner or his heirs. Young v. Commissioners, 7 O. F. D., 171 (51 Fed. Rep., 585, 591), 1892; 1893, Mahoning Co. (Comrs.) v. Young, 9 O. F. D., 202, 206 (59 Fed. Rep., 96, 99; 8 C. C. A., 140; 16 U. S. App., 588).
“When the property is no longer desired, or the purpose for which it was dedicated attainable, it will revert to the dedicator.” 76 O. S., Railroad Co. v. City, at page 504.
“Upon abandonment by a town of the public purpose of a donation of the lands, the property reverts to the original donors.” 75 Miss., 846; Patrick v. Y. M. C. A., 120 Mich., 185 (79 N. W., 208).

In the Crane deed, the language was: “for the sole purpose of being used as a burying ground for the use of the town of Newark, and for no other purpose whatever.”

These authorities make it clear that when the city abandoned the use of the premises conveyed as “a burying ground, and attempted to divert them, first, to a school house site, later to a hospital site, and afterwards to a park, the title reverted to the heirs of Mrs. Crane, the grantor.

The city has, by its own unequivocal acts, abandoned the use and conditions specified in the Crane deed, and can retain the ground for no other purpose.

The Burnette case;

As to the Burnette case, we find: That the fee in the laud in this ease never passed out of the heirs of the patentee. It has always been in them, subject merely to the use of the premises as a cemetery; that by plain and unequivocal acts, the city has abandoned that use; that the premises have reverted to defendants free from the dedicated use.

The dedication of the Burnette tract, in case No. 1300 (if there was a dedication), was a common law dedication, and its use was merely permissive and not adverse. When these graveyard grounds came into the corporate limits of the town of Newark, it had no title and no other possessory rights. The use and control of the grounds was not adverse but in entire harmony with the dedicated use. Hence, its use did not start the statute of limitations. Nothing but an open, notorious, visible, hostile and inconsistent act of possession on the premises could have that effect, and no such act was done, or is claimed to have been done.

In 1888 the city took the fence down, threw the premises open to intruders and trespassers, and never after that sought to guard or protect the grounds, or to respect their character and sacredness as a burial place. This was an abandonment of the dedicated use.

Kansas City v. Scarritt, 169 Mo., 471 (69 S. W., 283), supra:

“That a city may acquire title to land under the statute of limitations by such adverse possession as is necessary to confer such title is not doubted; but the very foundation elements of adverse possession are wanting when the only possession is permissive possession for a dedicated use. And of course while the city held control of this as a grave-yard, the defendants could could not take possession.”

Patrick et al v. Y. M. C. A. of Kalamazoo, 120 Mich., 185 (79 N. W., 208).

“A common law dedication does not convey a fee.”

Syllabus 6, supra, is as follows:

“A church society, having accepted lands for a period of tinv> under a common law dedication to its use, executed a quit-claim deed to a certain person who had previously purchased the reversionary interest of a part of the dedicator’s heirs, and who conveyed the land to a Young Men’s Christian Association, which built a valuable building on the land.
“Held: No evidence of hostility and the assertion of an adverse claim entitling the association to claim the land as against the dedicator’s other heirs by adverse possession.”

Syllabus 7:

“After a church society had erected a building on a lot dedicated to the use of one of the first four religious denominations forming a society in the town and erecting a building on the lot, it conveyed the lot to a Young Men’s Christian Association, which demolished the church building and erected a building adapted to its own wants.
“Held: An abandonment of the use for which the lot was dedicated, entitling the holders of the reversionary interest to the lot.”

Campbell et al v. City of Kansas, 13 S. W., 897 (102 Mo., 326, 343). Syllabi, 1, 2, 3, 4 and 5 are as follows:

“1. A square was marked ‘donated for grave-yard’ on an original plat, not assigned or acknowledged by the proprietors of a town-site, but filed with the recorder of titles by one of them, who soon after used it at a public sale of lots. The plat, and the use of the land for interments were acquiesced in by the proprietors. Held: Sufficient evidence of a dedication in pens.
“2. The donors of land dedicated to a city for a grave-yard have, while the public use lasts, no right to a concurrent possession subject to a reasonable use of the public, and can not maintain ejectment against the city to recover such a possession.
“3; Land dedicated to a city for a cemetery, which has no longer the character and name of a grave-yard, but is used as. a public park reverts to the donor, who may recover in ejectment against the city, which in defense.denies the abandonment.
“4. In such ease, the question will not be considered whether the land can be appropriated and used for other charitable purposes germane to the original one, in accordance with the equitable doctrine of cy pres.
“5. In 1857, land in a city, dedicated and'used as a cemetery was by ordinance ‘vacated for grave-yard purposes.’ In 1866, the council, by published notice, required all who had friends buried there to remove the remains. Many removals were made, but the majority of the remains were left to be taken away by the city. In 1869 it was used by the workhouse force, breaking rock. In 1870, earth was taken from it, and used too fill a street. In 1877, the city engineer was instructed by ordinance ‘to grade the old grave-yard and get it into shape for a public park.’
‘ ‘ This was done the next year. The grading went below all the graves, except, perhaps, a few in the lower part, on which four to ten feet of earth were placed. Trees were planted, grass grown, and walks laid out. It was named and recognized by the city as a park. No visible grave or monument remained. During the final grading, in 1878, the removal of the remains exhumed was stopped, and the bones of from eleven to eighty-four bodies were reinterred, in small boxes, as near the places from which taken as possible. Small stones, bearing numbers, but no names, were at these points either put five or six inches under ground, or they had sunk to that depth at the time of the trial, shortly-before which the location of many of them was brought to light by agents of the city by ‘prospecting through the park with a sharp iron rod.’ Held: Sufficient evidence of abandonment. ’ ’

Without pursuing the discussion further, we are of the opinion that the city or town of Ne-wark has no right, title or interest in these premises, in either case, and that the petitions should be and they are dismissed, at the costs of the plaintiff.

It is therefore ordered by the court that said plaintifE remove all of said pipes, poles, electric wires, cement walks, and - the fountain from said premises, and restore the same to the condition that they were in before such pipes, poles, electric -wires, cement walks and fountain wmre placed in and upon said premises, and that the same be done within six months from the date hereof.

It is further ordered that a decree be drawn in accordance with the opinion of the court herein. Exceptions.

Motion for new trial, if one is filed, overruled. Exceptions. Ten days allowed for finding of fact and conclusions of law, Statutory time for bill of exceptions.


source: Caselaw Access Project

license: Public Domain

text:
    ACTION AGAINST fDEBTOR. CORPORATION AFTER PROCEEDINGS IN INVOLUNTARY BANKRUPTCY ARE BEGUN.
    Circuit Court of Cuyahoga County.
    The Superior Clothing Company v. The Amdur Bros. Company.
    Decided, February 13, 1912.

      Bankruptcy — Involuntary Proceedings — Before Adjudication Bankrupt May Maintain Suit.

    A corporation can maintain an action on a claim due it after proceedings in involuntary bankruptcy have been begun, -but before adjudication and appointment of a trustee therein.

      S. A. Grossner, for plaintiff in error.

      Emil Joseph, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   The sole question presented to this court on the argument and by brief is whether, after proceedings in involuntary bankruptcy have been begun against a corporation, but before adjudication and appointment of a trastee therein, said corporation can maintain an action on a claim due it.

We do not think this question ivas saved on the record in this case. It is not raised by any allegation in the petition ox-amended answer, nor is there any bill of exceptions showing the evidence taken on the trial, so that we do not know that it was raised in the evidence.

Two days after the trial, a motion for a new trial was filed, and the third day after the trial a motion to set aside the judgment was filed. The latter motion gives three alleged reasons for setting aside the judgment: first, that the plaintiff is not the real party in interest; second, that the note sued on had been transferred to a third party, and third, that the plaintiff had either filed a petition in bankruptcy or been declared ¡an insolvent under the laws of the state of New York, and so could not maintain the action.

Whether evidence ivas taken on the motion for a new trial, we do not know, but it appears that evidence was taken on the motion to set aside the judgment.

Said motion does not give any statutory ground for setting aside a judgment; it states certain facts which, perhaps, might have been raised on the trial, if the pleadings had been amended so as to raise issues involved in these facts.

There is a bill of exceptions, certifying-that on the motion to vacate the judgment an agreed statement of facts was used, but it does not certify that said agreed statement of the facts was all the evidence on the hearing of said motion.

In this state of the record, it would seem idle to try to answer the question submitted on the hearing in this case, but we have examined the authorities cited and conclude that the law is correctly stated by Remington in his valuable work on Bankruptcy, in Sections 1119, 1120, 1121, 1123, as follows:

“The subject of the status of property after the filing of the petition is one upon which neither the law itself nor the decisions are clear, nor always consistent.
“But title does not vest until the trustee’s qualification; meanwhile! in law the title, although defeasible, remains in the bankrupt.
“The bankrupt himself is a quasi trustee of the property and its custodian and caretaker until a trustee, receiver, or some other officer of the court is appointed.
“In the meantime, the bankrupt has sufficient title to maintain suits in his own name, at any rate where no receiver has been appointed or where title and not merely possessory right is essential to maintenance of the suit.”

See also Rand v. Railway Co., 186 N. Y., 58.

The trial court seems to have followed the law as thus enunciated, and its judgment is affirmed.


author: By the Court

text:
    ACCEPTANCE OF BEQUEST NOT A BAR. TO CONTEST OF THE WILL.
    Court of Appeals for Perry County.
    Solomon E. Spangler v. Jasper C. Beare et al.
    Decided, May 2, 1913.

      ■Wills — Right of Legatee to Contest- — Where Bequest Has Been Received and Afterward Returned■ — Charge of Court.

    The acceptance of a bequest of personal property does not bind the beneficiary not to contest the will, as in the case of the acceptance of real property, but the money or property so received may be returned to the executor and the legatee left free to contest the will.

      D. M. Barr and T. B. Williamson, for plaintiff in error.

      John Ferguson and Stanley B. Crew, contra.
   By the Court

(Voorhees, Shields and Powell, JJ.)

This was an action commenced in the court of common pleas by the plaintiff in error, who was 'plaintiff below, against the defendants in error to set aside the will of one Emanuel Beare, deceased, which before that time had been admitted to probate and record in the probate court of this county.

The petition was in the usual form, alleging that the paper writing, purporting to be the will of said Emanuel Beare, deceased, and which had been admitted to probate and record in said probate court was not the last will and testament of Emanuel Beare, deceased, without specifying any ground or reason' why the same was not such last will and testament.

An answer was filed, denying the averments of the petition, and alleging as a special defense that by the terms of such will, as probated, Solomon E. Spangler was given .a legacy of $4,000, which legacy, with its accumulated interest, had been received by him from the defendant, Jasper C. Beare, as executor of the will of said Emanuel Beare, deceased, and who had thereupon receiped for the same in full settlement of all his rights under such will as a legatee.

To this answer a reply and an amended and a supplemental reply were filed, the effect of'which was to tender back to the said executor the amount of money received by the plaintiff, who admitted its receipt, but who claimed that such .acceptance was procured by. fraud and misrepresentation of the other defendants named in the proceedings, which money, however, the executor refused to receive, when the same was deposited with the clerk of courts as a tender for that purpose.

The question presented to the jury for determination was whether or not the testator, Emanuel Beare, had executed another and subsequent will to the one that had been admitted to probate, by the terms of which the former- will had been revoked, and that the same had never been republished as and for his last will, and the same was therefore void.

Numerous errors as to the admission and rejection of testimony were insisted upon in this court. Also it is urged that the court erred in its charge to the jury, by which the plaintiff1 was prevented from having a fair trial. We have examined the. entire record with reference 'to the assignments of error presented by the petition in error, and we are of the opinion that, in the charge of the court there was error which was misleading to the jury and prejudicial to the rights of the plaintiff in error. The court charged, in substance, and it is to be found on page 7 of the charge or 145 of the bill of exceptions, that if the jury find that plaintiff had accepted the $4,000, and that such acceptance was not brought about by fraud and misrepresentation of the executor but was accepted by plaintiff without such fraud and misrepresentation that that would be the end of the case. Further, that the jury need not go into any further questions because the mere acceptance, of the legacy under the will would bind plaintiff from making any contest in the eourt of common pleas at all. This court is of the opinion that this proposition is not the law in Ohio when applied 1o a legacy or gift of personal property, but is applicable only when the gift or device is a gift of real estate. We are of the opinion that such acceptance of a legacy could be revoked and the’ money returned, whereupon the rights of the legatee to contest the will would stand just ,as though no such payment had ever been made and we think that this charge is such error that the judgment of the court of common pleas should be reversed.

We have examined the whole record with reference to the other errors assigned and we find that, while there may have been other errors, yet we would not feel called upon to reverse the judgment upon them alone, and especially as the one specified is in our opinion sufficient to justify a reviewing court to reverse such judgment. ■


text:
    DELAY IN CONFIRMATION NOT FATAL TO PROCEEDINGS IN FORECLOSURE.
    Court of Appeals for Hamilton County.
    Julia McGill Walters v. Emil Homberg ; two cases.
    Decided, July 15, 1914.

      Judicial Sales — Decree for. Does Not Become Dormant — Proceedings Not Affected. by Long Delay in Confirmation — Statute of Limitations Not Operative as to Mortgages in Foreclosure — Formalties in Assignment of a Mortgage■ — Jurisdiction in Appropriation Proceed- . ings — Sections 8510 and 85J.6.

    1. ' A decree for sale does not become dormant, and a plea of laches on account of a delay of fifteen years in applying for confirmation of a sale which was made in due course after the taking of the decree, does not lie in the mouth of the debtor who had failed to satisfy the mortgage and who raises no question as to the validity of the mortgage or the regularity of the proceedings in foreclosure with the exception of the delay in confirmation.
    2. A plea that the value of the property involved in such a proceeding has greatly appreciated since, the entering of the decree of sale, is of no avail where even the present value is insufficient to satisfy all the claims against it and leave anything over for the mortgagor.
    3. The bringing of suit for foreclosure of a mortgage stops the running of the státute of limitations as to such mortgage.
    4. Errors will not be deemed prejudicial where their avoidance would not have changed the result of the proceedifigs.

      5. The amendment of Section 8546,. General Code, dispensing with witnesses and an acknowledgment to the assignment of a mortgage, does not go to the extent of causing the assignment to carry the legal title to the land conveyed by the mortgage, but to vest title the provisions of Section 8510 must still be observed.
    6. There is nothing in the statute controlling' appropriation proceedings which gives to the court in which they are .instituted juris diction over the property to be condemned, to the exclusion of the jurisdiction of another court in which foreclosure proceedings, involving the same property, have been previously commenced and sale made but not yet confirmed.

      Frank Woodward and Hunt, Bennett & Utter, for plaintiff in error.

      John F. Fitzpatrick and Gideon C. Wilson, contra.
    Jones, O. B., J.; Swing, P. J., and Jones, E. H., J., concur.
   The first ease was a foreclosure proceeding below, brought April 1, 1895, by William M. Ramsey, as guardian of Leora Mc-Cammon, to foreclose a second mortgage, recorded August 12, 1891, for $500, and for the sale of a lot on the west side, of Reading road north of Burnet avenue belonging to John McGill. There was a prior mortgage on same made by John McGill, then unmarried, to John Frankenberger, and recorded August 6, 1891, to secure a note for $2,700 of that date payable in three years. This loan was made to John McGill by Emil Homberg who furnished the money and was at all times the beneficial owner of the note and mortgage. John Frankenberger had no interest therein except as trustee or agent of said Homberg. Said Frankenberger was a clerk in the office of Louis Reemelin, who was the attorney for the said Homberg in the preparation of said mortgage and in these proceedings up to the time of his death. Said note and mortgage were endorsed in blank by said Frankenberger at the time of their execution and were then delivered to said Homberg. Some time after the record of these two mortgages John McGill conveyed said real estate by deed duly executed and delivered to his Wife Julia McGill.

In this suit John McGill and Julia McGill, his wife and John Frankenberger were the original defendants and were dulv served with summons, and were all in default for answer,. William W. Ramsey, who had been appointed as guardian of Leora McCammon to succeed her former guardian, William M. Ramsey, deceased, was substituted as plaintiff in place of the original plaintiff.

Louis Reemelin, who had received from Emil Homberg said note and mortgage executed by John McGill to John Frankenberger and endorsed by him in blank, was made a party and filed an answer setting up said mortgage and asking that the same be declared to be a first lien on said real estate superior to that of plaintiff, and that it be ordered first paid out of the proceeds of said sale.

On July 31, 1897, a decree was entered finding the amount due under plaintiff’s note and mortgage $606.66, with interest from March 1, 1896, and ordering that unless said amount was paid within thirty days defendants’ equity of redemption should be cut off and an order should issue for the sale of said real estate free of the claims of all parties to said action; and finding that the mortgage to John Frankenberger to secure a note of $2,700 recorded. August 6, 1891, was a valid, subsisting and first lien upon said premises, and that Louis Reemelin was the owner and holder thereof.

Defendants, John McGill and Julia McGill, having failed to pay the amount so found due, an order for sale was- issued September 8, 1897, and October 19, 1897, a return oh same was made by the sheriff showing that sale had been duly made and the real estate had been sold to Louis Reemelin.

No further step was taken in the ease until December 20, 1912. when Emil Homberg was on his own application made a party and given leave to plead, and on March 19, 1913, filed a motion to confirm said sale. On or about February 1, 1912, Louis Reemelin died, leaving Evelyn Reemelin his executrix and sole devisee. On June 21, 1913, Emil Homberg filed an answer and cross-petition alleging that Louis Reemelin in his lifetime, subsequent to the return of the order of sale, sold and assigned to Emil Homberg said note and mortgage and all interest in said' property, and prayed for a confimation of sale to him as assignee of the purchaser. Oh the same day the death of Louis Reemelin was suggested to the court and Evelyn Reemelin, his executrix, was made party and by leave filed an answer alleging and admitting the transfer of the Frankenberger note and mortgage by Louis Eeemelin to Emil Homberger and disclaiming any interest adverse to Emil Homberg. Then Emil Homberg filed a motion to confirm the sale and distribute the proceeds.

On September 9, 1913, Julia McGill Walters, who it seems was formerly Julia McG-ill, filed an answer. This answer was afterwards on motion of Homberg stricken from the files and leave was refused her to file a motion to set aside said sale; and on hearing of the motion of Homberg the court confirmed the sale to Emil Homberg, finding that the property has1 been bid in at sheriff’s sale by Louis Eeemelin for the purpose of protecting said mortgage claim of $2,700; that all his interests had been transferred to Emil Homberg; and ordered the sheriff to convey the property so sold to Emil Homberg, and subrogated said purchaser to the rights of all parties to said suit, and ordered the proceeds, $.1,000, distributed by paying the court costs, $74.-68, and paying the balance, $925.32, t.o Emil Homberg to be applied as a credit upon his mortgage claim which was then found to amount to $5,454; and found that the mortgage of William M. Eamsey, guardian, had been extinguished by proceedings and sale and it was ordered canceled. Afterwards, Julia McGill Walters filed a motion to set aside said decree and for a new trial, which on hearing was overruled.

It is urged by the plaintiff in error that it was error for the court to confirm this sale after the lapse of so long a time after the filing of the petition in foreclosure; that the delay in seeking confirmation amounted to laches.

She stood in the attitude of mortgagor, admitting in her answer the making and entry of decree of foreclosure and sale, and the sale of the premises to Louis Eeemelin, but sought to prevent confirmation of such sale in favor of the mortgagee, but not because of any question of validity of the mortgage.. She did not deny that the mortgage was made to secure a bona, fide loan which had never been repaid, and did not complain of any- irregularities in the proceedings.

She raised a question whether Homberg had acquired the interests of Eeemelin in the property. It could not be material to her whether Reemelin or Homberg had become the owner under the purchase — that was a question between them. Nor was it material to her whether the money bid had been paid into the hands of the sheriff, or not. That concerned the sheriff when he made his return. And as- the holder of the mortgage was the distributee of the fund, less only the court costs, it was not necessary to pay it in simply to have it paid back again (Andrews v. Johns, 59 O. S., 65). Her chief objection was that confirmation had been unusually delayed. She had no cause to complain of this delay, as she was herself a party and might at any time have taken steps to move the court to action.

Ramsey, guardian, after sale, finding no possible proceeds to pay his claim probably lost interest, and Reemelin no doubt felt that confirmation could be had whenever the opportunity to dispose of the property might arise. There were none others in interest to complain, as the defendants apparently had no reason to press the matter.

A decree of sale does not become dormant as does a judgment where execution is not issued. All judicial sales in this state require confirmation by the court before they can be completed. Beaumont v. Herrick, 24 O. S., 445, 446.

Tn Fox v. Reeder, 28 O. S., 181, it is held:

“The benefit of the rule relating to lis pendens may be lost by such long continued inaction as amounts to gross negligence in the party prosecuting, when such inaction is to the prejudice of innocent persons.”

But the court in its opinion, on page 185, uses the following language:

“In Hunter v. The Earl of Hopetown, 4 McQueen, 972, this is said: ‘A suit, though asleep, continues in pendente till disposed of, and the parties are still at issue, though the lis may have been for years comatose.’
“ ‘An action was commenced in 1845, and a defense lodged. In 1847, the proceedings ceased, and the action became dormant. Held (eighteen years afterward) that the lis, though still asleep, was nevertheless in pendente, and liable to be roused at the volition of either party.’ But in this case no rights of third parties had intervened to which the principle of Us pen-dens could apply. The remarks of the court applied to plaintiff and defendant, who were the only parties interested, and, doubtless, as to them the Us may be pending so long as the rights of others are not affected thereby.”

The plea of laches attempted to be raised below by plaintiff in error, was not made on behalf of an innocent person, but was made by one who had failed to keep her obligation to repay the loan in an -attempt to prevent its collection by the sale of the property which had been pledged to secure it, and therefore had no merit with the court. She said that the city of Cincinnati had acquired rights under appropriation proceedings, because of which the superior court had no jurisdiction to confirm said sale. 'She showed no authority to represent the city, and it made no claim on its own behalf, and there was no question as between the city and Homberg in the matter.

She said that the property had appreciated in valúe since the sale. That might be to her- advantage if only this appreciation had been more than sufficient to pay off the liens. It appears that the sheriff's sale was for $1,000 while the city later agreed to pay $4,375 for it; but after deducting the taxes and assessments amounting to $2,195.96 there was but $2,179.04 for the net value, while the original loan of $2,700 had not been paid in any part, and with interest added the court found then due upon it $5,454; so there could be no possible interest in any balance for Julia McGill Walters, especially when the second mortgage to Ramsey found in 1895 to be $606.66 would also have to be paid out of the proceeds before she would receive anything on distribution, if the sheriff on re-sale could have secured the amount the city had agreed to pay. And there was no attempt made to show that the value of the property was beyond that -agreed upon between ITomberg and the city in the appropriation proceedings.

Mrs. Walters, however, claimed that Homberg's mortgage had become unenforceable because of the fifteen years' statute of limitations. That could not be possible in a suit where the mortgage itself is being enforced. The bringing of the action prevented the running of the statute until that action is finally concluded.

It was claimed that the court committed error in striking Mrs. Walter’s answer from the files. She had been in default from the time prior to July 6, 1897; it is a matter of discretion in the court whether default should be set aside and leave given to file an answer. Clark v. Clark, 20 O. S., 128.

The answer admitted the judgment and the decree for sale, and the sale to Reemelin. It undertook to set out reasons why the sale should not be confirmed to Homberg, but stated none why it should not be confirmed to Reemelin. All of the proper matters pleaded therein necessarily were considered by the court in determining the motion of Homberg to confirm the sale. Her answer was not stricken from the files until after the hearing of the evidence on that motion, and no evidence to sustain its allegations was offered by her. In our opinion it was error in the court below, having allowed the answer to be filed, to order it stricken from the files, and also to refuse counsel for Mrs. Walters leave to cross-examine witnesses. It was not error to refuse her leave to file a motion to set aside the sale, as that would only bring the same questions before the court as were necessary to be considered under the motion to confirm on which she was heard. And she was permitted to file a motion to set aside the decree of confirmation and for a new trial, and to be heard upon it, thus furnishing an opportunity to present all her .objections to the court. The matters set up in her answer, if established, did not, however, furnish sufficient reasons why the sale should not be confirmed, and the errors above mentioned can not therefore be deemed prejudicial, especially when Mrs. Walters could have prevented the confirmation by a redemption of the property at any. time before final confirmation, and she made no offer or attempt to redeem.

A careful examination of the record fails to disclose any error prejudicial to the plaintiff in error, and the judgment will therefore be affirmed.

The second case below was an appropriation proceeding brought by the city, in which the same lot sold on foreclosure in the first case was taken by the city for park purposes, and the question arises, upon distribution, of the amount paid into court, as to the value of the property. This amount was fixed by the verdict of a jury under an agreement between Homberg and the city, and was paid into court under the provisions of Section 3686 of the General Code, and the fund took the place of the property to be contended for by the interpleading of the adverse claimants under the provisions of Section 3690, General Code. This amount was $4,375, out of which was paid for taxes an assessment of $2,195.96, leaving $2,179.04 for distribution. This amount was claimed by Homberg by virtue of a mortgage under which he claimed not only a lien but also a right of ejectment. And it was also claimed by him as owner of the property under the foreclosure sale.

Plaintiff in error, on the other hand, contended that all claims under the mortgage are barred by the fifteen years statute of limitations, Section 11221, General Code, and because Homberg was not named as the original mortgagee, but held by assignment not witnessed and acknowledged, that he had no right of ejectment. Therefore while she admits the debt was never paid she claims that said foreclosure sale not having been confirmed until after the bringing of the appropriation proceedings, the superior court was without power to confirm said sale and the lien of the mortgage had become barred by the statute of limitations and there was no right of ejectment because of the form of the assignment.

It seems to have been conceded by counsel that if there had been no foreclosure proceedings and the mortgage alone was to have been depended on, it would have been too late to set up the mortgage in the appropriation proceedings and rely upon it, as more than fifteen years had transpired since the last payment on the note (Kerr v. Lydecker, 51 O. S., 240). And under the ease of Doyle v. West, 60 O. S., 438, even if the finding in the superior court made at the time the decree of sale was taken could be alone relied upon, and subsequent proceedings were without effect, then the fifteen year statute would also apply to that.

This would probably be true, although the case last cited has been distinguished in the case of Graham v. Simon, 76 O. S., 77; where it is held that an action upon a judgment of a court in this state may be brought at any time within twenty-one years (Section 11648, General Code), following the case of Tyler, Exr., v. Winslow, 15 O. S., 364.

But counsel for defendant in error insist that Homberg became vested with a title under the mortgage to Frankenberger, not because Frankenberger was a mere trustee for him and that the mortgage should have been declared to be his property from the first, but by reason of its assignment to him, and because by the amendment of the section now found in the General Code as Section 8546, that the assignment of a mortgage in order to vest the title does not now require witnesses and acknowledgment but carries all of the mortgagee’s interest in the property and land including the legal title and the right of ejectment, if such 'assignment conforms to the terms of that section; and having legal title that he would therefore be entitled to bring ejectment for possession of the property within the twenty-one year statute of limitations under the case of Bradford v. Hale, 67 O. S., 316.

The court below held with the defendant in error in this contention.

We do not believe that the amendment found in Section 8546 of the General Code dispensing with witnesses and acknowledgment, can be construed to go to the extent of holding that an assignment under its terms will carry the legal title to the land covered by a mortgage. The positive terms of Section 8510 require that the conveyance of an interest in real property must be acknowledged in the presence of two witnesses. A conveyance to vest a title in a mortgagee sufficient to sustain an action for ejectment must be executed in accordance with the requirements of this section.

The court below also found that the bringing of the appropriation proceedings by the city, under the powers of eminent domain had some over-riding power-which stopped further action on the part of the superior court in the foreclosure case, and therefore did not rely upon the sale and its confirmation but rather upon the right of ejectment .in determining that Homberg was entitled to receive the money held for distribution. 14 N.P.(N.S.), 599; 15 N.P.(N.S.),541.

We find nothing in the statutes controlling appropriation proceedings that would give the court in which they are instituted jurisdiction over property to be condemned, to the exclusion of the jurisdiction of another court in which foreclosure proceedings, involving the same property, had been previously commenced and sale made but not confirmed. The court where jurisdiction first attached could proceed to final judgment confirming such sale, and such confirmation would relate back to the day of sale and pass title as of that day. Jashenshy v. Velrath, 59 O. S., 540, 545; Boyd v. Longworth, 11 Ohio, 236; Oviatt v. Brown, 14 Ohio, 286.

The fact that the sale had not been actually confirmed in the superior court when Homberg was first made a party in the appropriation proceedings does not change the rights of the parties. The city dealt with him as the real party in interest both in fixing the value of the property and in the litigation to determine the amount of the assessment charges collectible, and made no denial as to his right to the fund. The supplemental pleadings filed by him setting up his title acquired under the foreclosure sale, take the place of his original answer. The judgment in the foreclosure proceedings, and Homberg’s title thereunder, can not be collaterally questioned here by Mrs. Walters, Sheldon v. Newton, 3 O. S., 494; Hammond v. Davenport, 16 O. S., 177, 181-183; Railroad Co. v. Village of Belle Center, 48 O. S., 273; 24 Cyc., 73.

Homberg, as the owner of the property under the foreclosure sale, is entitled to its proceeds in the appropriation proceedings, and therefore we find that there is no error in the judgment of the court of common pleas in awarding the fund to the defendant in error, although the reasons given for making such award do not meet with our approval.

The judment of the court below is affirmed.


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    PROPER. TEST AS TO THE SUFFICIENCY OF A LOCAL OPTION PETITION.
    Circuit Court of Cuyahoga County.
    In re Petition in Favor of Preventing the Sale of Intoxicating Liquors in a Residence District.
    Decided, February 13, 1912.

      Residence District Local Option — Sufficiency of Petition — What Election is Standard for Counting Names.

    The sufficiency of a petition in favor of prohibiting the sale of intoxicating liquors, filed under favor of Section 6140, General Code, is to be judged by the vote cast at the last regular municipal election held before the petition was filed.

      Geo. W. Shaw, for plaintiff.

      C. M. Earhart, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   The question presented by the record in this case is whether the sufficiency of a petition in favor of prohibiting the sale of intoxicating liquors, filed under favor of Section 6140 of the General Code, is to be judged by the vote cast at the last regular municipal election held before the petition was filed, or at the last regular municipal election before the hearing on the petition.

It appears from the record herein that the petition in question was filed the day before the November election of 1911, and contains the signatures of qualified electors not less in number than a majority of the vote cast in November, 1909, which was the last regular municipal election held before the petition was filed, but less than a majority of the vote cast in -November, 1911, which was the last regular municipal election held before the hearing on the sufficiency of the petition.

Section 6152 of the General Code undertakes- to lay down the rule on this subject, but it is not specific. It reads as follows :

“Such mayor or judge shall decide whether the petitioners are qualified electors in the residence district and equal in number a majority of the votes cast in such residence district at the last regular municipal election,” etc. .

It would have been so easy to have said, "at the last regular municipal election held before the petition was filed,” or "before the hearing on the petition is had,” that one naturally wonders that the Legislature did not specify which election should be looked to as the standard.

This looseness of expression, however, is further exemplified by the expression “equal in number a majority,” instead of "are not less in number than a majority” and “regular municipal election,” which latter phrase has been held to be indefinite and include either a general or special election. The same uncertainty of expressions runs to such an extent through all the sections of the code regulating residence district local option, that no clear light is thrown upon the meaning of Section 6152 here under consideration, by any other section of the law.

We are remitted, therefore, to a general consideration of the purpose and intent of the law as a whole.

There can be no doubt that, a histoi’y of the legislation of this state on the liquor question shows an intention of the Legislature, in recent years, at least, to permit the.people themselves to determine whether they will permit or prohibit the sale of liquor in this midst. The will of the people is ordinarily expressed at an election, and so we had at first, and still have, laws providing for the submissioii of these questions to the people, at an election. Then ibis method of registering their will by petitions was adopted. Gan it be considered anything else than an open instead of a secret'ballot? We think not. Only qualified electors of the district are authorized to sign such petition, and it takes a majority of them to make a petition sufficient.

At an election the qualifications of voters are determined when they offer their ballots, and the votes are canvassed after the polls are closed, by the election officers.

In the case of these petitions, the qualifications of the signers are determined by the judge or mayor, and he also canvasses the .vote, tallying all proper signatures to the petition in its favor and all other qualified electors in the district against it.

The analogy to an election is so complete that, without further reference to other sections throwing a side light upon this analogy, we hold that the filing of the petition is in effect, the casting of votes, and the number voting in favor of the question submitted by the petition, as shown by the proper signatures thereto, and the number voting against said question, as shown by subtracting the number of such signatures from the whole number of qualified voters in the district, measured by the standard of the vote at the last municipal election held before the day of filing the petition, determines the question thiis submitted to the people.-

If this theory is sound, the sufficiency of the petition depends upon the circumstances existing at the time it is filed, and can not be affected by events thereafter occurring.

It follows that the election held in November, 1911, in nowise affected the sufficiency of the petition filed the day before said election.

So holding, the judgment is affirmed.


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    TRIAL FOR ASSAULT TO KILL AND MAIM.
    Circuit Court for Lucas County.
    W. D. Cromley v. State of Ohio.
    Decided, November 16, 1912.

      Criminal Law — Defendant Charged With Assault to Kill, to Wound and Mayhem — Charge to the Jury — Omission of the Word “Not"— Verdict Should Respond to the Counts Under Which Defendant is Tried — Reasonable Doubt.

    1. It is reversible error to state a proposition of law incorrectly in the charge to the jury by leaving out one material element, notwithstanding the same proposition was correctly stated in an earlier part of the charge.
    2. It is also error to ■ so charge the jury as to authorize them to return a verdict of guilty “under the third count of the indictment if they should find simply that the defendant made the assault with a dangerous instrument,” when the third count or the indictment contained no charge of assault made with a dangerous instrument.
    3. To charge a jury that “if you can say that you have an abiding conviction of defendant’s guilt, then you are satisfied beyond a reasonable doubt,” is error for the reason that the statement does not contain all the requirements as to the degree of evidence necessary to satisfy the mind beyond a reasonable doubt.

      C. W. Meck, Byron F. Ritchie and Ralph Emery, for plaintiff in error.

      H. C. Webster, Prosecuting Attorney, and A. F. Connolly, for state.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to Court of Common Pleas of Lucas- County.
   The plaintiff in error was indicted .at the September term, 1911, the indictment containing three counts. The first count charged him with an assault with intent to kill one Rezin Orr; the second count with intent to wound said Rezin Orr, and the third count contained a charge of mayhem committed, on said Rezin Orr.

The prosecuting attorney on the trial in the court of common pleas elected to proceed upon the first and third counts and the jury returned a verdict of guilty on the third count contained in the indictment. Upon that verdict the defendant was.sentenced to the penitentiary.

Numerous errors- are assigned in this court for which it is contended the judgment of the court below should be reversed. Among other errors insisted upon by counsel are those relating to the charge of the court as given to the jury. Luring the course of the charge the trial judge properly stated to the jury the essential elements constituting the crime of mayhem as charged in the third count in the indictment, and among others-, that before the jury returned a verdict of guilty under that count, they must find from the evidence, beyond a reasonable doubt, that the left eye of the complaining witness, Rezin Orr, was destroyed or put out as a result of the claimed assault. Elsewhere in the charge the trial judge again recurs to the elements .necessary to constitute this crime and undertakes to re-state them, and in this re-statement he omits the requirement that the burden rests upon the state in order to justify a conviction under the third count to satisfy the jury beyond a reasonable doubt that an eye of said Rezin Orr was destroyed or put out. The court in the concluding portion of this re-statement says to the jury, “Unless you find, and before you can find a verdict against the defendant on this count in the indictment, you must find these facts established to your satisfaction beyond a reasonable doubt by the evidence.” By so stating, the trial judge thus emphasized the essential facts as just recited by him, which recital omitted the fact already stated. In view of this state of the charge, the jury may have concluded that it was unnecessary, in order to justify a conviction under the third count in the indictment, that they should find that an eye of the complaining witness had been destroyed or put out.

The indictment is returned under Section 12416, General Code, which requires that before the defendant can justly be convicted of the particular offense set forth in the third count of the indictment, the eye must be put out or destroyed. The evidence in the case was of such character that it became important for the jury to determine, as one of the essential elements of the crime, the averment contained in the indictment which was omitted in the re-statement made by the trial judge.

I call attention to two cases which shed light upon the question under consideration: Northern Ohio Ry. Co. v. Rigby, 69 O. S., 184, 191; Railway Co. v. Frye, 80 O. S., 289, 298.

In each of these cases the correct proposition of laAv had been given to the jury in charge, but elsewhere in the charge, the law Avas improperly stated. Under that state of the'case the Supreme Court say on page 298 of the ease last cited that it is impossible for the court to determine which of the instructions the jury followed, and that the court can not assume that the jury selected the one statement which was substantially correct and rejected the other statements AAdiich AArere erroneous, and that under such circumstances the rule that error without prejudice is not ground for reversal can have no application.

We conclude that the charge is erroneous in thus re-stating the elements and leaving out one material element as contained in this charge.

The court further charging the jury gives this proposition:

“Before they can find the defendant guilty under the third count of this indictment, they must be satisfied beyond a reasonable doubt from the evidence that the defendant, if he did make this assault, made it with the malicious intent to maim or disfigure the said Rezin Orr, or that he made it with a dangerous instrument, — that he did make the assault with a dangerous instrument.”

The language is subject to the infirmity of the earlier part of the charge to which reference has been made, and also to the further objection that it apparently authorized the jury to return a verdict of guilty under the third count of the indictment if they should find simply that defendant made the assault with a dangerous instrument, whereas the third count of the indictment contains no charge of an assault made with a dangerous instrument, and we therefore hold that this proposition of law in view of the language in the indictment is erroneous.

The court in defining reasonable - doubt uses some language, doubtless inadvertently, to which we think it important that attention should be called. He said to the jury “This doubt should not be sneeulative or imaginative nor be based on conjecture or fancies; it arises, or may arise from that state of the proof which, after you have considered and compared all the evidence, and having in mind the presumption of defendant’s innocence, leaves your minds in that condition that you can say that you have an abiding conviction to a moral certainty of defendant’s guilt.” By omitting the word “not” after the word “can” and in front of the word “say,” the court states to the jury the opposite of the proposition which he doubtless in-_ tended to give in the charge. The charge should have stated in substance that under the circumstances stated the doubt would arise if the minds of the jury were left in such condition that they could not say they had an abiding conviction to a moral certainty of defendant’s guilt. The language used by the court is, with the correction suggested, substantially the same as was used in the charge as found in Commonwealth v. Webster, 5 Cush., 295, 320, cited with approval in Morgan v. State, 48 O. St., 371, and particularly page 378. See also Clark v. State, 12th Ohio, 483, and particularly page 496.

The trial judge stated to the jury further as follows: “If you can say that you have an abiding conviction of defendant’s guilt, then you are satisfied beyond a reasonable doubt.” This statement contained in two lines in effect justifies a verdict of guilty so far as the degree of evidence is concerned if the jury have an abiding conviction of the defendant’s guilt. We think the language is not sufficiently clear and does not contain all the requirements relating to the degree of evidence that are necessary in defining a reasonable doubt.

The verdict returned by the jury in this case specifically finds the defendant guilty as charged in the third count of the indictment, without making any reference to the first count. The case was submitted to the jury upon both the first and third counts and proper practice 'would require that the verdict should respond to the issues made on both the first and third counts of the indictment. Wilson v. State, 20 Ohio. 26: Jackson v. State. 39 O. S., 37.

We have examined the evidence contained in the bill but as the case will have to be reversed and «remanded for a new trial, we refrain from passing upon the weight of the evidence.

Judgment reversed and cause remanded for a new trial..


text:
    ASSUMPTION OF RISK UNDER. THE FEDERAL EMPLOYERS’ LIABILITY ACT.
    Court of Appeals for Preble County.
    The Dayton & Union Railway Company v. Edward C. Bunger.

    Decided, June 1, 1914.

      Railways — Injury to Engineer Employed in Interstate Commerce— From a Defect of Which He Had Knowledge — Charge of Court as to Assumption of Rislc.

    The common law doctrine of assumption of risk remains in force under the federal employers’ liability act, except as provided in Section 4 of said act.
    Error to the Court of Common Pleas of Preble County.

      M. R. Waite, Nevin & Kalbfus and Fisher & Crisler, for plaintiff in error, cited and commented on the following eases:
    Bowers v. Ry. Co., 10 Ga. App., 367; Hall v. R. R. Co., 169 Ill. App., 12, 17-19; Barker v. Kansas City, etc. Ry. Co., 129 Pac. Rep., 1151; Freeman v. Powell, 144 S. W., 1033; Neal v. Idaho R. R. Co., 125 Pac. Rep., 331; Seaboard Air Line Ry. v. James T. Horton, decided April 27th, 1914, U. S. Supreme Court.

      Matthews & Matthews and Beisinger & Beisinger, for defendant in error, cited:
    Philadelphia & Atlantic Ry. Co. v. Tucher, 35 App. Cases, Dist.'of Columbia, p. 123; Wright, v. Y. & M. Valley Ry. Co., 197 Fed., 94; Deatley v. C. & O. Ry. Co., 201 Fed., 591; Northern Pacific Ry. Co. v. Mearkel, 198 Fed., p. 1; Doherty on Liability of Railroads to Interstate Employees.

      Reversing Bunger v. D. & U. Railway Co., 14 N.P.(N., S.), 487.

   This is a suit for damages on account of personal injuries. The defendant in error was an engineer in the employ of the plaintiff in error company and had been in the employ of said company for about six years; three years of said time as fireman and about three years as engineer. He received the injuries complained of while he was acting in his capacity as engineer for the plaintiff in error company hauling a freight train and being at the time engaged in interstate commerce.

Plaintiff in error in its answer (as defendant in the court below), set up as a third defense the fact that the defendant in error (plaintiff below)' well knew of the defects of which he complained and that he had known of them for a long time prior to the accident, and that'he, therefore, in doing as he did, with knowledge of such defect, assumed all the risks arising from the acts of the defendant of which he complained. The defendant in error demurred in the court below to this third defense, and the common pleas court sustained said demurrer on the ground that under the; federal employers’ liability act of April 22, 1908 (35 U. S. Stat. at Large, 65, Chap. 149; Supplement to Compiled Statutes, 1911, page 1322), the defense of the assumption of risk had been entirely abolished and could no longer be pleaded. It was admitted that the said federal employers’ liability act controlled this case, and also, that there was no violation of the federal, safety appliance act.

Upon trial a verdict was rendered in favor of the defendant in error, motion for a new trial argued and overruled, and the case taken on error to the court of appeals.

At the close of 'the evidence, and before argument, plaintiff in error submitted a number, of special charges to the common pleas court, some of which were refused; among others refused were, the following;

Special Charge No. 14: “I charge you as .the law that the plaintiff can not recover from the defendant on account of his injuries if you find from the evidence that the defects of which '■he complains were known to the plaintiff, no matter how negligent the defendant may have been. Under these circumstances the plaintiff assumes the risk and if injured can not recover.’'
■ Special Charge No. 18: “I charge you that an employee assumes the risk of the ordinary dangers of his occupation and also those risks which are known to him or are so clearly observable, that he may. be presumed to. know them. And so if you find ffóm'all ithé evidence in this ease that the plaintiff vas was injured while in the discharge of a duty involving the ordinary dangers of his occupation, or if in the discharge of that duty he voluntarily placed himself in a position of danger which was known to him or which was clearly observable by him, or in the exercise of ordinary care should have been clearly observable by him, he assumes the risk of his act and can not recover damages from the defendant.”

Ferneding, J.; Allread, J., and Kunkle, J., concur.

This action was brought under the federal employers’ liability act of 1908. The federal safety appliance act contemplated by Section 4 of the federal employers’ liability act had not become effective at the time of the injury complained of. The tidal court ádopted the view that the common law defense of assumption of risk was abolished by Section 1 of the federal employers! liability act. Accordingly, the demurrer was sustained to the third defense embodying such defense, and such defense was not allowed to be considered in favor of the railway company during the conduct of the trial,

If we were called upon originally to construe Section 1 of the federal employers ’ liability act we would strongly be inclined to hold the same view; but since the case has come into this court the Supreme Court of the United States, which is the highest authority upon the federal question involved here, has authoritatively decided that the common law doctrine of assumption of risk remains in force except as provided in Section 4 of the federal.employers’ liability act. Upon the authority therefore of The Seaboard Air Line Railway Company v. James T. Horton, decided April 27th, 1914, by the Supreme Court of the United States, we hold that the trial court erred in sustaining said demurrer to the third defense.

We are also of the opinion that the trial court erred in its refusal to give charges Nos. 14 and 18, requested to be given to the jury before argument 'by the defendant, to which refusal proper exceptions were noted.

The judgment of the common pleas court is, therefore, reversed and the cause is remanded to that court with instructions to overrule the demurrer to the third defense of the answer, and for further proceedings.


text:
    SALE IN FORECLOSURE UNDER. JUDGMENT FOR AN EXCESSIVE AMOUNT.
    Circuit Court of Cuyahoga County.
    Anna V. Kuzel et al v. The Citizens Savings & Trust Company et al.
    Decided, February 13, 1912.

      Foreclosure of Mortgage — Amount Found Due Excessive, But Foreclosure Sale Realizes Only Enough to Satisfy Amount Confessedly Due — Security for Joint Indebtedness, but Personal Liability Im dividual.

    1. Though a decree in foreclosure may be for more than was lawfully due the plaintiff, if the sale thereunder produces only enough to . satisfy the amount confessedly due on the mortgage, the sale will not be set aside, for in such case, under Section 11702, General Code, the judgment creditor is required to make restitution only of the amount for which the mortgaged lands were' sold, with interest, and that amount, at least, is confessedly due the mortgagor.
    2. Husband and wife being jointly indebted to a bank in the sum of $2,100 'and. the husband individually indebted to it in the sum of $10,314.52, the bank demanded of the husband that he give security for the liabilities of himself and wife suggesting “that if he could not pay, he and his wife give a mortgage” on certain premises owned by them, whereupon they jointly executed a new note for $10,000 and a mortgage securing the same and delivered them to the bank, the amount of the new note being fixed at the estimated value of their equity in the property, there being a prior mortgage on it; Held: The mortgage secures the joint indebtedness of husband and wife and individual indebtedness of the husband, but the wife did not, by the transaction, increase her personal liability to the bank.

      A. A. & A. H. Bemis, for plaintiffs in error.

      W. J. O’Neil, contra.
    Niman, J.; Winch, J., and Marvin. J., concur.
   This proceeding in error is brought to reverse the judgment of the court of common pleas rendered in an action in that court in which the defendant in error, the Citizens Savings & Trust Company, was plaintiff, and the plaintiffs in error, Anna V. Kuzel and Joseph H. Kuzel, and the defendant in error, Harriet M. Ellsworth, were defendants. Unless otherwise indicated, the parties will be referred to in the relation which they stood in the original action.

The action below was one for the foreclosure of a mortgage. The defendant, Harriet M. Els worth was a lienholder, whose rights are not attacked and against whom no relief is sought in this proceeding.

The findings of fact and conclusions of law made by the court of common pleas are before us, and by reference to these it appears that on the 14th day of September, 1907, the defendants, Anna Y. Kuzel and Joseph H. Kuzel, were legally indebted to the Dime Savings & Banking Company for two joint and several overdue promissory notes, one for $1,600, with certain interest thereon, and the other for $500, with certain interest thereon, both payable to the order of the Dime Savings & Banking Company; that the consideration for said notes was money loaned to said defendants in the same amounts as the face of said notes; that at the same time, the defendant, Joseph II. Kuzel, was also indebted to said the Dime Savings & Banking, Comp any, either primarily or secondarily, upon numerous items of indebtedness aggregating $10,314.52; that on and prior to said 14th day of September, 1907,. said the Dime Savings & Banking Company was engaged in the banking business in the city of Cleveland, and was at that time in danger of being thrown into liquidation by reason of outstanding obligations which it was unable to pay, and that several officers of said company, including the defendant, Joseph II. Kuzel, were heavily indebted to said company; that at that time said defendant, Joseph IT. Kuzel, was the assistant treasurer of said company; that on and shortly prior to said 14th day of September, 1907, the duly authorized officers of said company demanded of said defendant, Joseph H. Kuzel, that the obligations of himself and said defendant, Anna Y. Kuzel, be paid, or security furnished therefor; that the suggestion was made to him that if he could not pay, he and the said defendant, Anna Y. Kuzel, give a mortgage on certain premises at that time owned by said defendant, Anna Y. Kuzel; that he was informed that unless he should at once pay or 'furnish security for said obligations and certain other obligations asserted to exist, but disputed by him, he would be discharged from his employment as assistant treasurer of said company for his alleged misconduct and breaches of duty as said officer, but that if he paid such obligations, or furnished satisfactory security therefor, he would be retained in his position, which would give him time to make collections of certain debts outstanding for which he was security, with others, to the bank; that on said 34th day of September, 1907, he, with his wife, acting through his procurement, executed the note and mortgage described in the plaintiff’s petition, and delivered the same to said the Dime Savings & Banking Company to secure the payment of all obligations then or thereafter legally owing from said defendants, Anna Y. Kuzel and Joseph H. Kuzel, or either of them, to said company; that the amount of the note given was $10,000, payable one year after date, with interest at six per cent, per annum, payable semi-annually on the 15th day of June and December of each year until paid, all overdue interest to draw interest at the rate of eight per cent, per annum, payable semi-annually until paid; that the amount of said note was fixed at the estimated value of the equity of said defendants, Anna Y. Kuzel and Joseph H. Kuzel, in the property covered by the mortgage given; that after the execution of said note and mortgage, they were duly assigned to the plaintiff, the Citizens Savings & Trust Company; that subsequent to the execution and delivery of the $10,000 note and mortgage, said the Dime Savings & Banking Company demanded of said defendant, Joseph H. Kuzel, that he give a demand note for the sum of $11,800 to cover the same indebtedness represented by the $10,000 note and mortgage except the $500 note and the $1,600 note, on which both he and the defendant, Anna Y. Kuzel, were liable, and certain additional items of indebtedness; that in compliance with this demand, he, on the 15th of December, 1907, executed such a note; that about the same time he also executed a demand note to the bank for $2,000 with interest, which was accepted by it to evidence the same indebtedness represented by the $1,600 note of the said Anna Y. Kuzel and Joseph H. Kuzel, before referred to, including the unpaid interest thereon, and that thereupon said the Dime Savings & Banking Co., caused a credit of $1,600 and interest to be placed on the ledger card of the $1,600 note; that the $1,600 note has at all times been retained and held by the company and its assigns; that there was attached as collateral to said $1,600 notes a life insurance policy payable to the estate of Joseph H. Kuzel, for $2,000 and a certificate for 100 shares of the common capital stock of the Lake Shore Electric Railway Company; that after the credit was made on the ledger card of the $1,600 note, the certificate of stock was transferred as collateral to said $2,000 note, and the life insurance policy was thereafter carried with said $11,800 note; that the $2,000 note has not been paid, and that all money paid on said debt and previous credits thereon, have been credits on said $1,600 note; that neither the Dime Savings & Banking Company nor any of its directors, officers or agents, ever made any false representations, threats or intimations to the defendant, .Anna Y. Kuzel, nor did the Dime Savings & Banking Company, nor any of its directors, officers or agents, other than the defendant, Joseph H. Kuzel, make any representations to the said Anna V. Kuzél about said note and mortgage, and that she had full and free opportunity at the time she executed the same, to read and examine said note and mortgage; that the said defendant, Anna Y. Kuzel, was not informed as to the various matters set- forth -in the finding of fact concerning the condition of the bank by anyone representing the bank, and that she had no knowledge ■thereof other than as may have been communicated to her by her said husband, Joseph H. Kuzel.

As conclusions of law, from the facts found, the court ot common pleas found that there was due the plaintiff, the Citizens Savings & Trust Company, from the defendants, Anna Y. Kuzel and Joseph H. Kuzel, jointly and severally on their two notes for $500 and $1,600, the sum of $2,850.62, with' interest from September 1, 1911; that there was due the plaintiff from the defendant, Joseph H. Knzel, including said sum of $2,850.62 and interest, the sum of $10,314.52, with interest from the first day of the September term of court, 1911; that said note and mortgage for $10,000 given by the said Anna V. Kuzel and Joseph IT. Kuzel secured all the indebtedness found to be owing the plaintiff by said parties, and that “there is now due phunf on said $10,000 note and mortgage from defendants, Anna V. Kuzel and Joseph IT. Kuzel, the sum of $10,314.52 and interest thereon from the first day of this term of court”; and that to secure the payment of said sum said.plaintiff had and holds the best lien on the property in the decree described, subject only to the lien of the defendant Harriet M. Elsworth.

Before this case was heard in this court, the property involved in the foreclosure proceeding was sold at sheriff’s sale under the decree of foreclosure, to the plaintiff, and after pa -’ ment of the costs and prior liens out of the proceeds of the sale, there was paid to the plaintiff the balance remaining, which amounted to only $692.29.

It is contended by the plaintiff in error, Anna Y. Kuzel, that there was a failure of consideration for the giving of the mortgage on her property, except as to the indebtedness to the bank for which she was jointly liable with her husband, the defendant, Joseph H. Kuzel; that since such indebtedness was represented by only the $500 note and the $1,600 note referred to, the mortgage when given secured only the amounts due on those two notes, and did not, by reason of want of consideration, secure any of her husband’s individual indebtedness; that after the (giving of said mortgage, the transaction that took place concerning the $1,600 note, as above detailed, constituted a payment and discharge thereof, leaving the $500 note with interest thereon, the only indebtedness secured by said mortgage, at the time of the trial in the court of common pleas.

A reversal is sought of all findings in the court below, not in accord with these contentions.

The amount due on the $500 note, conceded to have been secured by the mortgage, was- in excess of the amount received bv the plaintiff in error, on the distribution of the proceeds of the sheriff’s sale, and the plaintiff in error insists that there is, therefore, no prejudicial error in the decree of the court below, so far as the mortgaged property and the application of the proceeds thereupon, are concerned. This proposition, limited to the effect of any error committed by the trial court, upon the title to the property sold, and the distribution of the proceeds, is well founded.

Section 11702, General Code, provides:

“If a judgment, in satisfaction of which lands or tenements are sold, be thereafter reversed, such reversal shall not defeat the title of the purchaser. In such case restitutione must be made by the judgment creditor, of the money for which such lands or tenements were sold, with lawful interest from the day of sale.”

It is clear, therefore, that reversal of the judgment of the court of common pleas could not defeat the title of the purchaser of the mortgaged premises, and it is equally clear that the plaintiff could not be required to make restitution of so much of the proceeds of the sale as it has received, since it did not receive as much as was admittedly secured by the mortgage.

In another way, however, the plaintiff in error may be prejudiced if the findings of law and the judgment of the court below were not correct. The finding of the court of the amounts due from the defendant, Anna Y. Kuzel, on the various notes, as set forth in the decree, although no personal judgment therefor was rendered against her, is a judicial determination of the validity of the indebtedness, and execution may issue for the deficiency left after crediting the amount received from the sale of the premises. Giddings v. Barney, 31 O. S., 80.

Of the errors complained of, therefore, only those need be considered that relate to the several amounts found due the plaintiff from the defendant, Anna Y. Kuzel, since it is only in respect to these that she can be prejudiced by any error found in the findings and decree of the court below.

The validity of the $500 note being admitted, no further attention need be given it.

As to the $1,600 note on which the defendant, Anna Y. Kuzel, was jointly liable with her husband, it is claimed that by taking the note of December 15, 1907, for $2,000 signed by Joseph H. Kuzel alone, to evidence the.same debt, represented by the one for $1,600 and interest thereon, crediting the ledger card of the latter note with the amount of the former, and shifting the collateral from the earlier to the la’ter notes, the bank released the defendant, Anna V. Kuzel.

In our opinion the facts- do not justify this conclusion. The taking of a note for a debt does not constitute payment of the debt unless such is the agreement, and the facts disclose no such agreement. The amount realized from the collateral and the interest paid on the $2,000 note have been credited on the one for $1,600 which was never surrendered. The entering of‘credits on the ledger card of the $1,600 note was according to the-usage of the bank and. was a mere matter of bookkeeping, and did not indicate that the note had been paid. Nothing in the facts found would justify the conclusion of law that this note had been paid, or that Mrs. Kuzel had been released therefrom. The finding, therefore, that there was due the plaintiff from Anna V. Kuzel and Joseph IT. Kuzel jointly and severally, on the izotes for $500 and $1,600 the sum of $2,850.62, with interest from September 1, 1911, is sustained.

The only remaining question relates to the correctness of the ‘finding that there was due from the defendants-, Anna Y. Kuzel and Joseph H. Kuzel, on the $10,000 note and mortgage the sum of $10,314.52 and interest.

The liability of Joseph Tí. Kuzel in this amount can not be disputed on the facts found. As to Anna Y. Kuzel $2,850.62 of this amount, with interest, has been heretofore considered, and the finding of an indebtedness- on her part to this extent approved.

If the Dime Savings & Banking Company stood in the position of a holder for value of said $10,000 note, or if the facts found show a consideration for said note to the full extent, the finding, that the full amount thereof, with interest, was due the plaintiff from these defendants should stand, but if not, as against •Anna Y. Kuzel, the finding was erroneous, and the amount excessive by the difference between $10,314.52 and $2,850.62.

. We are of opinion that the mere continuance of Mr. Kuzel in his employment, and the fact that the bank did not bring suit on the paper in its possession, and the other facts relied upon, did not furnish a new consideration for the note and mortgage. If there were nothing in the facts showing any limitation upon the liability assumed by Mrs. Kuzel when she .joined in the execution of the note and mortgage, it might well be contended that she was liable to the full amount under' the principle of Pitts v. Foglesong, 37 O. S., 676, where it was held:

“ One, not induced by fraud, who indorses a negotiable promissory note owned by another, for his accommodation without restriction as to its use, is liable to an indorsee who receives it in good faith from the owner, before due, as collateral security for an antecedent debt of such owner, although there be no other consideration for giving such collateral. ’ ’

We find, however, by reference to the finding of facts, that when the bank made its demands upon Mr. Kuzel for security for the liabilities of himself and Mrs. Kuzel, the suggestion was made to him, quoting from the finding, “that if he could not pay, he and Anna Y. Kuzel give a mortgage on the premises in this decree described for such purpose.” Again the facts inform us that the amount of the note given was fixed at the estimated value of the equity of said Joseph II. Kuzel and Anna Y. Kuzel in the property in the mortgage described.

The logical and reasonable inference from these facts is that it was the intention of the parties on both sides of the transaction, that Mrs. Kuzel should convey her property by way of mortgage, to secure both her own indebtedness and that of her husband, but that she should not incur any personal obligation beyond that already owing by her. The giving of the note for $10,000 was a mere incident in the furnishing of the mortgage security which the bank had demanded, to secure the debts of the Kuzels, already existing, and such as might thereafter be created.

The mortgage security has been exhausted, and for the reasons suggested, neither of the plaintiffs in error has been prejudiced in any way by what took place in the court below with respect thereto, but the plaintiff in error Anna Y. Kuzel is entitled to a-reversal of so much of the judgment or decree as finds to be due from her to the defendant in error, the Citizens Savings & Trust Company, any amount in excess of $2,850.62, with interest from the first day of September, 1911.

The judgment of the court of common pleas is therefore reversed, but the facts being before us, and the error found consisting of a finding of law, not warranted by the facts, the judgment will be rendered by this court which should have been rendered by the court below.