author: Washburn, P. J.

text:
    JURISDICTION OVER ELECTION CONTESTS.
    Court of Appeals for Summit County.
    The State of Ohio ex rel Charles N. Gaylord v. George H. Herdman, and Eight Other Cases.
    Decided, January 19, 1923.

      Elections — Judisdiction over Contests — Quo Warranto Does not Lie to Determine the Validity of an Election — Common Pleas Court the Proper Eorum.

    Provision has been made by the General Assembly for trial of election contests in the court of common pleas, and the court of appeals is without jurisdiction to inquire into the validity of an election in a quo warranto proceeding.
    In quo warranto; heard on demurrer.

      Irvin & Layboume and Geo. ~W. Coble, for the demurrer.

      Arthur W. Doyle, prosecuting attorney, and Charles II. How-land, contra.
   Washburn, P. J.

These cases are all before this court upon demurrers to the petitions. We will first take up the case of State of Ohio ex rel Gaylord Y. Herdman.

It appears from the petition that the city of Cuyahoga Falls is a municipal corporation of about 10,000 inhabitants.

At the regular election in November, 1921, there was a mayor and other municipal officers to be elected. Gaylord was regularly nominated at the primaries as the Republican candidate for mayor, and no other nomination for that office was made at the primaries.

Herdman became a candidate for mayor on what was known as a Citizens ticket, by filing a petition therefor.

The deputy state supervisors of the county accepted said petition, and no objection being made thereto, placed Herd-man’s name on the ballot as a candidate for mayor, and at the election he received a majority of the votes east, and in due time was regularly declared elected and a certificate of election was issued to him.

He qualified and took office on January 1, 1922.

Neither his nomination or election was contested under the statutes providing for such contests, and Gaylord did not attempt to qualify or claim the office, and nothing was done in reference to the matter by Gaylord until Iierdman had been discharging the duties of the office with the full acquiescence of the public for about six months, and until after the Supreme Court had announced that there was no provision in the law for the nomination of candidates by petition in cities of more than 2000 population.

Then suit was brought in this court by Gaylord, the same being a suit in quo ufwrrcmto, in which no’complaint is made concerning Iierdman’s right to the office except that Herd-man’s name was improperly placed on said ballot, because there was no law by which his name could be placed on the ballot by petition.

The prayer of the petition is that Herdman “be adjudged not entitled to hold said office, and that judgment of ouster therefore be pronounced against him, .and that said relator (Gay-lord) be adjudged entitled to said office and its franchises.”

As has been said, the matter is before this court on demurrer to the petition, the grounds of demurrer being that the petition does not state facts sufficient to state a cause of action and that this court is without jurisdiction to hear and determine the controversy.

It is claimed that as the statutes provide a means by which Gaylord could object to Plerdman’s name appearing on the ballot and could later contest the election in the court of eommon pleas, he is bound to proceed under such statutes, and that therefore this court has no jurisdiction to try such matter in quo warranto proceedings.

In discussing this question, it should be borne in mind that the petition shows upon its face that this proceeding is a contest of election between Gaylord and Herdman — simply that and nothing more.

The next proposition which must be considered as settled beyond peradventure, is that ‘ ‘ elections belong, to the political branch of the government and not to the judicial, and are not per se the subject of judicial cognizance, but are matters for political regulation. ” State ex rel Gongwer v. Graves, 90 O. S., 311; Link v. Karb, Mayor, etc., 89 O. S., 326; State ex rel v. Joyce, 87 O. S., 126; State ex rel v. Harmon, 31 O. S., 250.

While by the Constitution the judicial power of the state is vested in the courts, the absolute, unlimited and unqualified power over elections, being political and not judicial, is vested in the Legislature by Section 21 of Article II of the Constitution.

That section of “the Constitution provides that “the General Assembly shall determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted.”

In early times it was the practice of the Legislature to try all election contests itself, but now the Legislature has provided for the trial of most election contests by courts or other tribunals .

But when the Legislature provides that a certain court shall try a certain class of election contests, it does not thereby confer judicial power upon the court but it simply confers a special power to try election contests which it might have conferred upon any branch of the government or body of men. Thompson v. Reddington, 92 O. S., 101.

One other proposition, and the one that determines this case, is that when the Legislature has conferred upon any court or other tribunal or other body’of men the power to try any class of election contests, that statutory proceeding so provided must be followed and is exclusive.

The Legislature has not conferred upon this court the specific power to try election contests of the character here involved. The Constitution, however, has conferred judisdiction in quo warranto upon this court, and it has been held that where the Legislature has provided no other court or tribunal or body of men to try a given class of election contests, then this court, lias authority to inquire into the validity of such elections by proceedings in quo warranto. The question, then, is: Has the Legislature provided a court or tribunal before which contests of elections of the character here involved may be tried?

General Code Section 5169 provides before what authority and in what manner the trial of contests of election of municipal officers shall be conducted. It provides that in cities, the contest of election of municipal officers, except members of council, shall be in the manner provided for contests of election of county officers.

And the Legislature has provided that the c-ontests of elec* tion of county officers shall be “by appeal to the common pleas court of the county.” (General Code, Section 5148.)

The Legislature has therefore conferred special power upon common pleas courts to try contests of election of mayors in cities.

“A specific mode of contesting elections in this state, having been provided by statute, according to the requirement of the. Constitution, that mode alone can be resorted to, in exclusion of the common law mode of inquiry by proceedings in quo warranto. The statute which gives this special remedy, and prescribes the mode of its exercise, binds the state as well as individuals.” State ex rel v. Marlow, 15 O. S., 114.

The proposition that where the Legislature has provided the authority before and the manner in which a contest of election shall be tried, such remedy provided by statute is exclusive, is too well settled in this state to admit of doubt. Peck v. Weddell, 17 O. S., 271; Ingerson v. Berry, 14 O. S., 315; State ex rel v. Stewart, 26 O. S., 216; Dalton etc. v. State ex rel. Richardson, 43 O. S., 652; State ex rel v. McLain, 58 O. S., 313; State ex rel v. Berry, 47 O. S., 232; State ex rel v. O’Brien, 47 O. S., 464; Link v. Karl, Mayor, 89 O, S., 326; Prentiss v. Dittmer, 93 O. S. 314.

The ease cited and relied upon by Gaylord, the recent case decided by the Supreme Court, State ex rel v. Board of Elections, 105 O. S., —, does not deny the soundness of the foregoing proposition. That was not a case in quo warranto, and the court in its opinion expressly states that as the form of the remedy sought was not questioned, the court did not consider that question.

That ease was not brought after the certificate of election had been issued to the successful candidate and he had duly qualified and had entered upon the discharge of his duties and had continued to occupy his office and discharge the duties thereof for more than six months; that was a proceeding in mandamus to compel the election board to count certain ballots and the question decided in the majority opinion and discussed in the dissenting opinions was as to 'whether or not the law provided for nominations by petition in cities of over 2000) population, and not what would be the effect upon an election if a nomination was made in such manner and was not objected to and the party so nominated was declared elected and entered upon and discharged the duties of the office for six months before any suit or contest was brought.

In that case the relief sought by the relator was denied, and our judgment is that that that case might very well have been determined as it was upon the very proposition which we feel controls us in this case. In a case decided by the court of appeals of the Eighth District in Cuyahoga county in September, 1920, the case of State ex rel Crosser v. McDonough, No. 2760, the court of appeals followed the decisions above cited, and the supreme court refused to review the case. That is an unreported case. But a copy of the opinion is available in our library.

We are clearly of the opinion that the Legislature, having provided a remedy by which Gaylord could try his election contest in the court of comon pleas, we are without authority to inquire into the validity of such election in this quo warranto proceeding, and that therefore the petit'011 does not state facts sufficient to constitute a cause of action, and the demurrer is therefore sustained.

The same reasoning applies to the case against Geo. W. Coble, solicitor, and a like entry may be made in that ease. As to the cases in reference to the election of councilmen, there are two classes of cases involved.

It appears from the petitions that three of the councilmen, who were in like manner nominated and declared elected, duly qualified and entered upon the duties of the office to which they were elected; it also appears that they afterwards resigned and the council elected others to succeed them, and some of the contests here are against those three who were elected by the council.

As to this class, it is to be observed that the validity of their election by the council is challenged only on the ground that the councilmen who elected them were themselves not duly elected councilmen.

The electing councilmen were at least cle facto officers. Their names were placed upon the ballots as candidates for lawfully and regularly established offices; they received a majority of the votes cast; they were given certificates of election by the regular election officials; they qualified and assumed the duties of office without the least obection or opposition from the public or any member thereof, not even the plaintiffs in these actions. Since then these acting councilmen have occupied offices created by law and have daily discharged duties affecting the rights of the city and private rights of individuals.

If they be treated as mere usurpers and trespassers, their every official act would be a nullity, and interminable confusion would follow; but the law wisely holds that under the circumstances stated, they being the only persons claiming to be acting as such councilmen, and being generally and publicly known and acknowledged as such, to the exclusion of all others, they became at least de facto officers, and it is well settled that their official acts, as against collateral attack, are as binding as if there was no question about their election.

While so acting, their vote for the election of the new members of the council was perfectly legal and binding — the same as were their votes in transacting the regular and ordinary business of the city.

In a very early case in Ohio, it appears that a clerk of courts was elected by certain men who were acting as judges, but who were afterwards found to have no right to so act. After it was determined by the Supreme Court that they had no right to act as such judges, a proceeding in quo warranto was brought to oust the clerk who had been elected by them at a time when they did not in fact have a right to act as judges. In that case the Supreme Court held that while they were acting under color of right and were actually discharging the duties of the office with the full and complete acquiesence of the public, they were de facto officers, and that so far as the comunity or third pei’sons were concerned, neither the validity of their appointments or judgments could be gainsaid or denied, and the facts appearing upon the face of the petition in tha,t ease as they do in the cases here, a demurrer was sustained. State of Ohio ex rel v. Ailing, 12 Ohio 16.

The rule is well settled that the title of the officer de facto, and the validity of his acts, can not be collaterally questioned in proceedings to which he is not a party. State ex rel v. Jacobs, 17 Ohio 143; Ex parte Strang, 21 O. S., 610; Smith v. Lynch, 29 O. S. 261; State v. Gardner, 54 O. S., 24; State ex rel v. Smith, 44 O. S. 349, at page 368; Plymouth v. Painter, 44 Am. Dec., 574; Attorney General v. Crocker, 138 Mass., 214; Brown v. Flake, 29 S. E. 267; Stiess v. State, 103 O. S. 33.

In the cases of Sanger, Weaver and Herrick, it appears v-nou the face of the petitions that they were elected by couneilmen whose authority to so elect can not be questioned in this proceeding by the plaintiffs in these cases, and therefore in none of the petitions are facts stated sufficient to constitute a cause of action, and the same entry may be made in those cases as in the others.

The other class of eases involving the election of couneilmen are those against couneilmen who were in like manner nominated and declared elected and who qualified and entered upon the discharge of duties of the office and are still serving. As to these, the statute provides that the contest of their election shall be before the council, and the reasons heretofore given for sustaining the demurrers in the cases of the mayor and city solicitor apply. The statute having provided the remedy, that remedy must be followed. In these cases each petition must be judged by its own allegations, and so judged it does not appear that the remedy provided by statute would be inappropriate or inadequate.

The suggestion made in argument that such remedy would have been inadequate because all but one of the councilmen were alike usurpers of office, is unavailing, for the reason that no such facts are alleged in these petitions.

An entry may be made in all these eases sustaining the demurrers on the ground that in each case the petition does not state facts sufficient to constitute a cause of action.

Pardee, J., and Funk, J., concur in judgment.


source: Caselaw Access Project

author: Fernedins, J.

license: Public Domain

text:
    RISKS OF ACTIVE NEGLIGENCE NOT ASSUMED.
    Court of Appeals of Montgomery County.
    Payne, Director General of Railroads, v. Gordon.

    Decided, March 10, 1921.

      Negligence — Pedestrian Assumes the Risk of Passing over a Railway Grossing Diagonally — But not the Active Negligence of the Railway Company in Permitting a Hole to Exist in which his Foot was Caught and he was Run Down.

    A pedestrian who without any necessity and for his own convenience leaves the sidewalk at a railroad intersection and crosses the railroad crossing diagonally, and in so doing catches his foot in a hole, in the roadway and is struck by a train and injured, can not be held to have assumed the risks of active negligence on the part of the railroad company which lay in the path that he thus chose. City of Dayton v. Taylor, Admr., 62 Ohio St., 11, distinguished.

      Matthews <& Matthews, for plaintiff in error.

      Mattem & Brumbaugh, for defendant in error.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 24, 1921,

   Fernedins, J.

This is an action for personal injuries. The case was tried in the court of common pleas and resulted in a verdict for $15,000. A motion-for new trial was made and overruled and judgment was entered on the verdict. Error is prosecuted to this court to reverse said judgment.

It appears that John 0. Gordon, the injured party, was on his way home about midnight. He walked south on the east sidewalk of Main street in the city of Dayton, until he reached the railroad crossings at Main and Sixth streets when he started diagonally over the railroad intersections toward the west sidewalk of Main street. While in the act of crossing the intersection Gordon claims that he caught his foot in a hole in the roadway, on the north side of the north rail of the track upon which a freight engine belonging to the Pennsylvania Railroad Company was approaching from the east, and that while endeavoring to extricate himself the engine caught and crushed his foot to such an extent as to separate the bottom of the foot from the bones and also break some of the smaller bones of the foot.

Among the acts of negligence charged are the defective condition of the crossing, and failure of the employees of the railway company to use due care to discover Gordon’s dangerous situation and avoid injuring him. Counsel for plaintiff in error claim the trial court erred in refusing to give the following charge requested by plaintiff in error, to-wit:

“If the east sidewalk on Main street, at, and in the vicinity of and across the railroads where they intersect Main street, ■was in such condition that the plaintiff could have safely used it in the ordinary manner of pedestrians, and would have avoided injury from the train which struck him, if he had stayed on said east sidewalk; and if the plaintiff without necessity and for his own pleasure or convenience, departed from said east sidewalk and crossed said railroad crossing diagonally to the , point, where the accident occurred, intending to continue his ' course to the west side of Main street, he must he held to have assumed the risks, if any, from the condition of the crossing, which lay in the path he thus chose.”

This charge is founded upon the authority of City of Dayton v. Taylor’s Admr. 62 Ohio St., 11, the syllabus of which is as follows: ,

“A pedestrian who, without necessity and for his own pleasure and convenience, departs from the sidewalk and street crossings, upon which he would have avoided injury, and crosses a street intersection diagonally, and is injured by slipping into a catch basin which lay between the crossings, must be held to have assumed the risks which lay in the path which he thus chooses. ”

It is claimed by plaintiff in error that when Gordon left the sidewalk and started diagonally across the roadway at Main street he should be held as a matter of law to have assumed the risk which lay in the path so chosen. We think the syllabus and decision in the Taylor case should be limited to the facts of that case, and should not be extended to a case like the one at bar, where there was active negligence charged in the operation of a railroad engine over said crossing, and where there were unnecessary defects in the roadway. We approve the following propositions of the syllabus, and the reasoning of the court in support thereof, in the ease of Durbin v. Village of Napoleon, 21 C. C., 160:

“In passing over a street, at a point where no street crossing is provided, the pedestrian assumes the hazard .of danger ordinarily present in a street kept in ordinary safe condition.
“He does not assume the risk of injury, 'without his fault, from unnecessary defects, or from obstructions and nuisances that are suffered to remain in the street, through the negligence of the municipal authorities.
“These proposition are not in conflict with the doctrine laid down by the Supreme Court in the case of the city of Dayton v. Taylor’s Admr., 62 Ohio St., 11 (43 W. L. B., 209).”

See also Decker v. Mitchell, 10 Ohio App., 438.

We are therefore of the opinion that the trial court did not err in refusing the special charge above quoted, nor in its general charge upon that subject. We have considered all the errors assigned and are of the opinion that the trial court committed no-error in its rulings during the trial prejudicial to the plaintiff in error.

Complaint is made as to the argument of counsel for the plaintiff below, but we think there was no such abuse of discretion of the trial court as would justify a reversal upon that ground. See Ohio & W. Pa. Dock Co. v. Trapnell, 88 Ohio St., 516 and Baird et al v. Detrick et al., 8 Ohio App., 198.

Counsel for plaintiff in error also urge that the verdict was against the manifest weight of the evidence, and, particularly, that the amount of the verdict is excessive. Without 'attempting to analyze the evidence in detail, we are of the opinion that the verdict so far as it finds in favor of the plaintiff is not contrary to the manifest weight of the evidence, but that the amount of the verdict is excessive in the sum of at least $3,000. Gordon, the injured party, was a comparatively young man, and was capable of earning at the time of his injury, according to the testimony, from $35 to $40 per week. He was a machinist by trade and the injury to his foot caused an almost total loss of his earnings for approximately a year, and will materially interfere with his earning capacity in the. future.

If the amount above stated, to-wit, $3,000, is remitted, the judgment as so modified will be affirmed, otherwise the case will be reversed and remanded for new trial.

Kunklb and Adlbead, JJ., concur.


author: Washburn, P. J. Washburn, P. J.

text:
    CHURCH PROPERTY MAY NOT BE ALIENATED.
    Court of Appeals for Cuyahoga County.
    Bakos et al v. Takach et al.

    Decided, July 5, 1921.

      Religious Societies — Church Property Dedicated to Use of a Specific Denomination — May Not by a Majority Vote of Membership be Turned over to Another Denomination.

    Property having been dedicated by way of trust for the use and promotion of a certain specific religious organization a court of equity will enjoin the majority of the members of such religious organization from changing the organization so as to effect an avowed change of ' denominational relations, which would amount to a turning over of the property to another separate distinct denomination and thus work an abandonment of the original purpose of •the society.

      Wilfred J. Mahon, for plaintiffs.

      Rocker & Schwartz, for defendants.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 29, 1921; again overruled on rehearing, January 24, 1922; motion to dismiss petition in error sustained, November 29, 1921.

   Washburn, P. J.

This is a contest arising among members of the St. John’s Greek Catholic Congregation, plaintiffs, claiming that the property of the congregation was acquired to be used for a particular form of worship to which it was dedicated and used for many years, being held by the congregation in trust for such use, and that the defendants, in violation of such trust, are diverting such church and property from the uses and purposes for which it was dedicated and used.

There are involved two welLdefined and distinct forms of worship, or church organization, one the Greek Catholic Uniat Church, and the 'other the Russian Orthodox Church.

Originally, there was the Roman Catholic Church, in which because of differences in language there was used the Western or Latin rite, and also the Eastern or Byzantine rite.

There were differences in ritual, discipline and practices between the Eastern and the Western rites, but in all essentials of dogma, they were one, under the primacy of the Pope.

The differences were- magnified, and later extended to. matters of dogma, and a final separation took place, and thereafter there was what is known as the Eastern or Russian Orthodox Church, under the jurisdiction of the Holy Synod, which in later years was under the complete domination of the Russian Czar, and the Western, or Roman Catholic Church, under the jurisdiction of the Holy See, acknowledging the primacy and supremacy of the Pope.

There were, and ever since the separation there have been, eastern people of the same race and speech as the members of the Russian Orthodox Church who desire to worship according to the Eastern or Byzantine rite, but still owe allegiance and obedience to the Holy See (Roman) instead of the Holy Synod (Russian).

Greek Catholic churches which use the Byzantine, or Eastern rite, but acknowledge the supremacy and primacy of the Pope, and differ in no essential dogma from the Roman Catholic Church, are designated as “Uniat,” i. e., united with the Roman Catholic Church. •

“Uniat,” when joined to the name of any Eastern church with a rite of its own, signifies that it is united with the Roman Catholic Church, while “Orthodox,” joined to the name of an eastern church, signifies that it is not under the jurisdiction of the Holy See, but is under the direction of the Holy Synod.

If the name of the church here in question was the “St. John’s Greek Catholic Uniat Church,” and the organization and dedication were in accordance with such name, it would signify a well-defined religion, while if it was a “Russian Greek Orthodox Church” that would signify a separate, distinct and different religion.

This much has been said simply to indicate that we find that while the religions are similar in many respects, they are not branches of the same church, but are two separate and distinct religions or creeds, having different ceremonials, discipline and government.

A church bearing the name and designated in the articles of incorporation as the “St. John’s Greek Catholic Congregation,” as in the case at bar, may be either “Uniat” (connected with the Roman church), or “Orthodox,” that is, a part of the Russian Orthodox- Church, depending upon the intention of the members constituting the congregation. ,

The all-important question of fact in this case is: Which kind of a church organization is the St. John’s Greek Catholic Congregation? Is it Uniat, or Orthodox, or independent?

The church was incorporated on January 15, 1901, at which time the Greek Catholic Uniat Churches in America were, in spiritual matters, in charge of the Roman Catholic Bishops of the various dioceses in which the churches were located, the Roman Pontiff not having at that time appointed a Uniat Greek Catholic Church Bishop in the United States to take charge of the people of his nationality of the Greek Catholic Uniat faith in this country.

Such a Bishop, the Rt. Rev. Stephen Ortynsky, was appointed in the year 1910.

When this church was organized the Articles of Incorporation provided as follows:

“Said corporation is formed for the purpose of to keep religious services and worship according to the Greek Catholic Rites and customs and ways, and to keep a religious school for children of said denomination, and to do works of charity, and to establish and keep up institutions of and for charity. ’ ’

These articles provide for religious services and worship “according to the Greek Catholic Rites and customs and ways,” without indicating whether it is to be “Uniat” or “Orthodox,” and the name of the corporation is equally indefinite on that question and no light thereon is found by a reference to the original by-laws and regulations.

In the ease of Greek Catholic Church v. Orthodox Greek Church, 195 Penn. St., 425, which is a case similar to this, it 'is observed, at page 433, that:

‘ ‘ This then is a case where from the writing creating the trust, we are unable to discover what particular form of worship was intended or to which of the two churches the name of Greek Catholic Church is to be applied. And therefore according to doctrine laid down by Lord Eldon * * * ‘when a house is created for religious worship and it can not be discovered what was the nature of the worship intended by it, it must be implied from the usage of the congregation; and that it is the duty of the court to administer the trust in such manner as best to establish the usage, considering it a matter of implied contract with the congregation.’”

All of the priests since its organization were “Uniat” priests, and the priest in charge when the property was acquired was ordained by a Bishop under the jurisdiction of the Roman Pontiff, and received his jurisdiction of the parish from the Roman Cathx olic Bishop of the Cleveland Diocese; he acquired title to the property and deeded it to the congregation, but there is nothing in the deed which determines or tends to prove whether it is a Uniat or an Orthodox church.

The congregation, previous to its incorporation, worshipped in a Roman Catholic chapel, and, as has been said, we find from the evidence that the priests in charge of the organization from the beginning, until the coming of the defendant, Rev. Joseph J. Takach, were Uniat priests, and that the congregation recognized the Roman Catholic Bishop of the Diocese of Cleveland as having authority over the church in spiritual matters; and after the appointment by the Roman Pontiff of Rt. Rev. Stephen Ortynsky to have charge as Bishop of the Uniat Greek Catholics in the United States the congregation recognized the authority of the Roman Catholic Church over the congregation in spiritual matters by paying fees, sometimes denominated salary, to the Bishop, and at other times denominated as “fee” to the Bishop’s See, and by accepting priests whose jurisdiction over the parish was conferred by the Bishop of the Roman Catholic Church.

In May, 1909, differences arose among the members of the congregation, not concerning matters of faith or doctrine, but as to whether the church should be moved to a new location. Suit was brought by members of one faction against another faction, and in that suit it was alleged that the church was located in the Roman Catholic Diocese of Cleveland, and formed one of the body of catholic churches comprising such Roman Catholic Diocese. That suit was settled, one faction retaining the property, the use of which is involved in this suit, and the other 'faction taking certain funds in bank belonging to the congregation, with which to buld a church at the location at which they desired the church to be moved.

That agreement contained the provision that such funds should be held “in trust for a new congregation of Uniats of the Greek Catholic faith,” and that “it is understood that the word ‘Uniat’ as herein used, means United Greek Catholic, practicing the ancient Greek Catholic Rites and Customs, but, nevertheless, acknowledging the supremacy of the Pope of Rome,” and that i'both the parties to this agreement, enter into the same by the authority and with the consent of Rt. Rev. John P. Farrelly, Bishop of the Diocese of Cleveland, Ohio. ’ ’

In June, 1910, a Uniat priest in charge of the congregation was removed by suit prosecuted by the trustees of the church, because he had failed to secure authority to act as such priest from the Roman Catholic Bishop of the Diocese, and such action of the trustees was formally approved by resolution later adopted and signed at a meeting of the congregation.

In 1910, as has already been said, the Roman Pontiff appointed a Uniat Greek Catholic Bishop in the United States to take charge of the people of that faith in this country, who had theretofore been under the care and charge of the Roman Catholic Bishops in the various dioceses. On August 10|, 1910, a meeting of the congregation was called by a member thereof, by notice published in the “Cleveland Press,” for the purpose of amending the by-laws and regulations of the congregation, which contained no specific statement of religious affiliation. As amended at that -time the by-laws and regulations provided as follows:

In religious services and ecclesiastical functions the St. John’s Greek Catholic Congregation acknowledges the religious authority of Rt. Rev. Stephen Ortynsky, or in case of his death or resignation or cessation of his authority as Bishop in the State of Ohio, that of his successor in the same faith, rite and nationality.

“But nothing in these regulations shall be construed so as to invest any eccleastical authority with the title or control over any of the property of this congregation, nor so as to divest either the Board of Trustees of this Congregation of absolute title and dominion over the same.
“The Right Rev. Stephen Ortynsky during his authority as aforesaid or his successor, as well as the pastor or priest of this congregation shall be members ex-officio of the Board of Trustees.
1 ‘ The Board of Trustees are hereby invested with the authority, at all times, to select and appoint the Pastor of this Congregation, or Priest of said Congregation, and to fix the term of his office, as well as his salary. /
“But no Pastor or Priest or Teacher of the Congregation shall be selected or appointed unless he shall have come from Hungary, and no Pastor or Priest shall be selected or appointed by the Board of Trustees, unless he is or has been duly married, and is duly authorized to hold Mass, make confirmation and render religious services generally according to Greek Catholic rites and customs and ways.”

(It may be noted in passing that plaintiffs recognize that the title to the property should always be in the congregation, but in trust, nevertheless, for the purposes for which it is claimed it was dedicated.)

On November 6, 1910, a meeting was held, which was called by the priest in charge of the congregation by announcing the meeting in church on three successive Sundays, at which meeting the by-laws were further amended as follows:

“Article 1. The aforesaid Congregation will always be connected and united with the One Holy Catholic Apostolic Church, which recognizes the Catholic Archpriest Roman Pope as seeing head on earth in the Church of Christ. The aforsaid Church, however, uses in all its divine services, the Greek Catholic rite, only in the ancient Slav language, and in this it is distinguishable from the Roman Catholics, who use the Latin rite. In this Church let them be keeped all rights and privileges of the Greek Catholic Church, so, as in the old Country. The aforesaid Congregation wants Greek Catholic and married Hungary-Rusynian (English: Ruthenian) or Hungary Slovakish Priest (such as are in old country, in Hungary), who is born in Hungary or in America learned, ordained, appointed by Greek Catholic Bishop of United States in America (who must be duly appointed always by the Roman Pope) or must be descendant of Greek Catholic Hungary-Rusynians (English: Rutheniari) or descendant of Greek Catholic Hungary Slovaks, descendants if Greek Catholic American citizens. ,
“Article II. Said Congregation and its Church, with all belongings thereto, shall always be under the jurisdiction and under absolute supervision o£ Greek Catholic Bishop in the United States, who is appointed by the Roman Pope, which is present Greek Catholic Bishop in the United States of America, Right Rev: Stephen Ortynsky, and in case of his death or resignation, of his rightful succeeding Bishop of the same rite, duly appointed by the Roman Pope and no decision of the Church members, nor trustees of the Church, can deprive him nor his successors from these rights, jurisdiction and authority over the said Church. Said Bishop or his rightful successor hall keep for all the time the church properties entirely in his own trust, so that said Church could not fall into the hands of some people of other religion or nationality and the temporal administration of the church fortune is in the hands of the church officers, under the supervision of the aforesaid Greek Catholic Bishop. Only the whole congregation by a majority of votes shall have a right to borrow money, to sell or transfer the properties of the church but only with the consent, confirmation and sanction of its Greek Catholic Bishop, otherwise every such act will be illegal and invalid.
“Article IV.— * * * Only Greek Catholic Priest, having jurisdiction from his Greek Catholic Bishop, can hold services in the aforesaid Church, and be one among officers without being elected. * * * The Rector is appointed and called away by the Greek Catholic Bishop.
“Article VIII. To make any change of this constitution a written permission from the Bishop is required. * * # This constitution and by-laws bind every member of this congregation from their approval * *

These by-laws were signed by many members of the congregation, and later approved by Bishop Ortynsky and recorded in the records of the county.

While there is a conflict in the testimony, we find that the evidence preponderates in faxur of the claim that these by-laws were duly adopted, and were unquestioned until the coming of the present Orthodox Priest in 1918.

In 1911, the congregation made application to the court for authority to encumber the church property, and it was therein stated that the petitioners desire “in conjunction with the Rt. Rev. Stephen Ortynsky, the Greek Catholic Bishop of the United States, who is appointed by the Roman Pope,” to borrow five thousand dollars.

And a like petition containing a like statement was filed in 1913 to borrow thirty thousand dollars, and Bishop Ortynsky. the representative of the Roman Pontiff, signed the mortgage which was authorized by the court.

In 1913 the present church edifice was duly dedicated, and we find that it was dedicated and the cornerstone laid, as a Uniat church, no Orthodox priest or representative having any part in the ceremonies or being present.

Nowhere in the records of the church does there appear the word “Russian,” or “Orthodox,” up to February 24, 1918, when the present Orthodox priest arrived.

At-the close of his first sermon he announced that a meeting would be held, and the congregation remained for such meeting There is a dispute in the evidence as to how many members remained throughout the meeting, but an attempt was made to change the organization from Uniat to Orthodox, and a paper to that effect was signed by some members, and later by others, so that it finally received the written approval of sixty-nine members out of a total of from three to five hundred members. After this meeting, a new minute book was provided, and therein the church is denominated the “Russian (Uhro) Orthodox Greek Catholic Church of St. John the Baptist.” This book was prepared by defendants in this action under the direction of the present Orthodox Priest, and it is there recorded that “the members of the congregation unisono decide not to be from today on under the Uniat slavery, and submit themself to the Orthodox authority. To the Uhro-Russian Orthodox Greek Catholic Bishop, Stephen, and give power to the rector, Rev. Joseph J. Takach, and to the trustees of the congregation to make all the necessary things which are wanted by the church authority, the Uhro-Russian Orthodox Diocese, with Bishop Stephen at the head of it. Under those things was explained the' changó"of charter to the orthodox charter; and acknowledgment in the'deeds of parochial and church property'as.first trustee the:Bi'sHóp;'aS' second the priest, and four (4) civil members "of Congregation) who also are elected trustees at'the yearly congregational'-meeting, and the members of good standing have at the yearly'meeting' elected new ones, and have the .right' (those four) approve 'fb'r the next year too. By the change of the 'charter powferuiUgiveil to the trustees to make new congregational by-laws Of Orthodox character. '

■. “The salary of priest, Rev. Jos. J. Takach was fixed unisprio $100.00 monthly, and $10.00 for church wine and bread monthly.
“Unanimously decided, that the trustees with the p'riest, Rev'.' Joseph J. Takach at the head,- have power to -take care: of-bury-' ing ground for cemetery. Temporarily the-burials will be at th.e: Russian .Orthodox cemetery.’’ .........

The latter part of this quotation shows that it was unanimously decided that the trustees, with the priest at the head, should’ have power to take care of buying ground for a cemetery.’ (The’ congregation had theretofore used the Roman Catholic Cemetery, which was not allowable if it was an Orthodox church.) ’ "It is in evidence also that the title to the property up to this time had been in the name of St. John’s Greek Catholic Congregation, not having been transferred to the trustees of the congregation; who acted for it from time to time, but in February, 1918, With-' out any formal action of the congregation, and without ány áp'-' plication to the court of common pleas, an attempt was made to-transfer the property by deeding it in the name of the congregation, by deed signed by Rev. Takach, as president, and one 'of the members as secretary to J. P. Ferencik, who immediately5 deeded it to the then trustees of the church and to Rt. Rev. Stephan Dzubay, the Orthodox Bishop, and at about the same’ time an attempt was made to amend the Articles of Incorporation so as to declare that it was an Orthodox church!, ■ ' 1

From the record, only a part of which we have referred to, weiir.d that up to the arrival of the present Orthodox priest this1 congregation was Uniat and its property had been dedicated1 and used as such, and that the Orthodox priest recognized that as a fact and attempted to change this situation and divert this property from the uses and purposes for which it had been acquired, dedicated and used.

It may be that at the present time a large majority of the members are in sympathy with this change, but the heat of the controversy which' has been raging for some time among the membership is not conducive to deliberate and well-considered judgments, and there is no way by which' it may be determined how much of the present opinion is due to the presence and activities of the present Orthodox priest.

If this property was dedicated by way of trust for the purposes of sustaining, supporting and propagating definite religious doctrines or principles, known as the Uniat fath, and there are persons willing to teach such doctrines or principles, and there are members so interested in the execution of the trust as to have a standing in a court of equity, they may invoke the power of such court to prevent the diversion of the property to other and different uses. If there is a trust confided to a religious corporation, even though it be of the independent or congregational form of government, it is not within the power of the majority of that congregation, however preponderate, by reason of a change of views on religious subjects, to carry the property so confided to them in trust to the support of a different doctrine. To justify the application of this rule of law the trust and the abuse of it should be clearly established. We think that has been done in this case. This property was clearly held in trust for the purpose of religious worship and teaching; the form of worship and the doctrine intended can not be discovered from the deed, and in that event we must look to the usage- of the congregation and the nature of. the original in-situation as a guide for the decision of the court between rival factions.

We hold that the evidence clearly establishes that the congregation has been Uniat from the beginning, and never Orthodox until the coming of the present priest; that the property was so dedicated and used, there being no protest or attempt to change such use until the arrival of the present Orthodox- priest; that to change to Orthodox would be a real and substantial departure from the purposes of the trust, amounting to a perversion of it, A decree may be drawn enjoining defendants from permitting any person to officiate as priest and rector of said congregation other than one duly qualified and appointed as such by the G-reek Catholic Bishop in the United States, appointed by the Roman Pope, and enjoining the defendant Joseph J. Takach from preaching, teaching or officiating in said church as alleged priest or rector thereof, and from occupying or in any way using or interfering with the property of said chureh or congregation, and declaring the alleged sales and transfers of said real estate invalid and restoring the title to the property to the congregation, subject to and charged with the trust hereinbefore found to exist and also declaring void the attempted amendments to the articles of incorporation and the rules, regulations and by-laws, by which it was attempted to change such organization from Uniat to Orthodox. ■

Vickery and Ingersoll, JJ., concur in deeree.

Opinion on Rehearing,

Wilfred J. Mcthon, for plaintiffs.

Rocker & Schwartz and T. S. Dunlap, for defendants.

Washburn, P. J.

Since the foregoing opinion was prepared and announced, defendants have employed additional counsel, and an application has been made for a rehearing of the case.

Additional briefs have been filed, and the questions involved in the ease have received our further consideration, with the result that we adhere to the decision announced.

A rule, which is established by the weight of authority, at least outside of Ohio, is, that the majority faction of an independent or congregational society, whether incorporated or not, however regular its action or procedure may be, can not, as ^ad^Phtj^.faitbfpiLminDJity.di^eit the.property of the society.to ^apht.lrerbde.ftPmmafion,-. or, to. the.iSjip.port of doctrines, radically . áhd fuhdhm«atallyJogpioBe.d,to- the- characteristic doctrines of .the ¿.sypn ■ though ...the property is. subject to ..no ..express or .spepida.frjást, .......■

.....i'Ny.é make, no, attempt, to ..collect the., authorities, which,-support ,-.-this.riule-^Many .of them.will.be found cited in an annotation in 8 A. L. R.,.at-,page..11.3. ,.............

h-ri55fe have, .already. ;fohnd. that, this was..not, a. congregation ..strictly...independent, of other occleastieal. associations, hut that it w a a.-.organized, dedicated .and.conducted'as a Uniat church, and ..thahdifférences exist between the. Ueiat. church and the Orthodox ...church which, are., fundamental and .characteristic, .the Ortho>dox-church being a separate and distinct denomination., ,.-tJ

In. view of..the. early decisions in Ohio, in Keyser v. Stansifer, 6 Ohio, 363; Heckman v. Mees, 16 Ohio., 583, and Bartholomew v. Lutheran Congregation, 35 Ohio St., 567, it is not our purpose to hold that this rule is operative in. .Ohio ,to the full extent as stated above, .but. we do hold that when the change attempted by a majority of such religious organization is not a mere change as to government or polity, but is an avowed change of denominational relations, and. amounts to an attempt to turn over the property to another separate and distinct denomination, and thus work an abandonme.pt,of' the original purpose of the society, the minority has the right to the assistance of .a court of equity to prevent such change being made.

If the congregation in question was organized" as a Uniat church, and the property'was dedicated as such, and up to 1918 ívás: goyferned and conducted as a Uniat church, then it differed fundamentally from the Orthodox' church, for the -former acknowledges the primacy and supremacy of the Roman pointiff, which the Orthodox church denies, and came into being for the express purpose of denying. '■ ■

' The record, discloses not only a solemn declaration by the defendants, made at the time the change was attempted, that the organization was then Uniat,' but an avowed purpose to ' change denominational relations' from “Uniat slavery ”to “O'rthpdox .authority, ”, for the official minutes of the meeting, prepared by the defendants, at which the change was made, record that.it. was resolved that' “the members of the congregation Ainispno. decide not to be from today on under the Uniat slavery, and submit themselves to the Orthodox authority. To the UhroRussian Orthodox: .Greek Catholic Bishop, Stephen, and give power to the rector, Rev. Joseph J. Takach, and to the trustees ..of the congregation to make all the necessary things which are wanted by the church authority, the Uhro-Russian Orthodox -Diocese, with Bishop Stephen at the head of it. ”

•• -A church, founded upon the recognition of the primacy and supremacy of the Roman pontiff, can not be classed as a church strictly independent, having a merely voluntary ecclesiastical connection which may be changed by a majority of the congregation. ' •'

The priest who organized this church was ordained by a Roman Catholic bishop.- The church was dedicated under the áusp-iees of á Roman Catholic bishop. The church, from the- be/ginning, was under the jurisdiction of a Roman Catholic bishop, to the extent that no priest, until the present one, was .allowed to officiate without the sanction of a Roman Catholic bishop.

The acknowledgment of the primacy and supremacy of the Roman pontiff was the ehief, fundamental characteristic which distinguished the church from the Orthodox church, which is now, by the consent of the majority of the congregation, in the possession and control of the property, because the majority have changed, so that they now deny, instead of acknowledge, the primacy and supremacy of the Roman pontiff. Such a change is' not merely a change of synodical relations, as was permitted- in Bartholomew v. Lutheran Congregation, 35 Ohio St., 567, but is rather a change of the very basis of the church — a 'change which destroys the church as a Uniat church, and makes it. into a church of a different and antagonistic denomination.

Neither is it a mere change of creed by a strictly independent church, as in Keyser v. Stansifer, 6 Ohio, 363, was permitted to be made by a majority of the members of the Baptist church, which was “in itself a whole, separate and independent; at liberty to form its own creed, and looking to others for counsel and social intercourse only.”

Such strictly independent Greek Catholic Churches there may be, but if a Greek Catholic church is Uniat, it is not strictly independent — it belongs to a system or organized whole — the great Roman Catholic denomination, founded upon the supremacy and infallibility of the pope, in which organization the pope has bishops especially appointed to exercise his jurisdiction over Uniats.

It has been suggested that plaintiffs are estopped from prosecuting this suit and insisting upon the execution of the trust, because they delayed for some time to object to the change being made. It may be that one of the plaintiffs is so estopped, because he was present at the meeting when the change was made, and signed the paper consenting to the call of Rev. Taka ch, but we do not think that because one of the other plaintiffs attended church thereafter, and another refused to attend church after the change was made but delayed the bringing of this suit for about a year after the change was made, they are estopped from prosecuting the suit.

Our secretary has called our attention to a case decided by this court while sitting in Summit county, in May, 1916, which fully supports and sustains the decision we have reached upon the main questions involved, but the question of res adjudicada, was apparently not raised in that ease, although the opinion in that ease discloses that the change from Uniat to Orthodox had been made for some time, and that a part of the property involved was acquired by the congregation after such change was made. The case is that of Zofchok, etc., v. Archbishop Platon et al., No. 153.

A decree may be entered in accordance with our original opinion.

Vickery and Ingersolb, JJ., concur in decree.


author: LAUBIE, J.

text:
    DEEDS — CONDITION—APPROPRIATION.
    [Ashtabula (7th) Circuit Court,
    October 12, 1897.]
    Laubie, Frazier and Burrows, JJ.

       Mary L. Field and Albert T. Field v. Lake Shore & Michigan Southern Railway Co.
    1. Condition Subsequent does not Operate oe Itsele.
    A condition subsequent .in a deed of land does not of itself operate to revoke the conveyance and the title to land so conveyed. Notwithstanding a failure to comply with the condition the title remains in the grantee until some action is taken by grantor, or by the court, whereby grantee is ousted. A mere declaration by grantor that the condition upon which the land was sold has not been complied, effects nothing.
    S. Waiver oe Right to Forfeiture.
    Where lands were deeded to a railway company in consideration of one dollar and “ the express condition subsequent” that the road should be constructed and in operation within two years, otherwise the lands were to be reconveyed to the grantor, and the condition was not complied with, the failure to commence proceedings upon the condition for more than seventeen years after the time within which it was to be performed and not until the railway company had made large and valuable improvements and expended large amounts of money thereon, the grantor standing by and permitting it to be done without making any claim whatsoever to the land, constitutes a waiver of the right to insist upon forfeiture and is a bar to the enforcement of the condition or a recovery of the property.
    8. No Action Lies Under Sec. 6448, Rev. Stat.
    Where property was deeded to a railway company in consideration of one dollar and a condition subsequent that the railroad should be constructed and in operation within two years, and the railway company failed to perform such condition, and by reason of having permitted the company, for a period of seventeen years, to retain the property and make expensive improvements, without a claim to the property, grantor has lost the right to claim forfeiture, he is not, though no further compensation was paid him, entitled to recover the value of the property under Sec 6448, Rev. Stat., authorizing actions, as for appropriation, for land taken without compensation and not under cons tract in writing. The contract or the deed is the sole measure of the right- or remedy of either party. Whether action for damages for breach of contract, under circumstances stated, would lie, quaere.

       Affirmed by the Supreme Court, without report, 62 Ohio St. 633.

   LAUBIE, J.

The case of Mary F* Field and Albert Field against the Fake Shore & Michigan Southern Railway Company and William K. Vanderbilt, has been submitted to us in the arguments of counsel and extensive briefs, wherein the plaintiffs ask to have the judgment of the court below reversed for various claimed errors as stated in the petition in error.

The court below charged the jury that the plaintiffs could not recover in that action the value of the lands claimed as upon an appropriation, and if that direction of the court to the jury is correct, that ends all questions in this case. It is entirely immaterial what other errors may have been committed, if that was not erroneous.

Now the action was brought, according to the ninth amended petition before us, to recover the value of certain lands in this county, which were deeded to the railway company or its trustees (the same thing) in 1871, by the plaintiffs, in consideration of the sum of one dollar in hand paid and upon the condition that was provided in the deed for the con* struction of the road within the period of two years. It was alleged that this condition has not been complied with, but that the plaintiffs have not enforced it, except as they seek to enforce it now. That is, they seek now to recover the value of the lands conveyed, because the condition was not complied with, as to the building and operation of the road, and the court instructed the jury, as I have said, that the action could not be maintained.

Why might a recovery be had, as claimed by the plaintiffs? They say that they are entitled to recover because of the fact that this condition in the deed was not complied with, and that this was the condition: “Nevertheless, the above conveyance is upon the express condition subsequent, that if the Fake Shore & Michigan Southern Railway Company shall not within two years from this date have constructed and in operation its Ashtabula and Jamestown branch railroad, having its main business line running from the east side of the harbor of Ashtabula to Jamestown, in the state of Pennsylvania, then upon the demand of the said Mary F-, her heirs and assigns, the said Clark shall reconvey the above granted lands to said Mary F., her heirs and assigns.’’

That the plaintiffs had in 1890 commenced an action by ejectment to recover possession of these lands and damages for their retention, and that that action is this one, — this being the ninth amended petition in the case; that they abandoned the right to recover by ejectment and they now seek to recover the value of the premises, by alleging that this condition was never performed; that it is true they stood by and saw the railway company occupy the land and make large and valuable improvements upon it, but that they are now entitled to charge the defendant company with having taken the lands as by an appropriation, at least an appropriation in fact; and,'therefore, that they should have compensation for the value of the land, which they declare .to be six hundred thousand dollars. This, in short, is this ninth amended petition.

I need not recite the defenses. It is sufficient to say, as solely bear' ing upon what I shall pass upon in this case, that they deny that this condition was not performed. They allege in their answer that the company did perform it; that it built and operated its road and has been running it ever since; that it built it and operated it within the time mentioned, the two years specified in this condition subsequent, or whatever it may be, and that they did expend, as alleged in the petition, large sums of money in making large and valuable improvements and changing the aspect of the land, and -they claim the plaintiffs are estopped from any relief by reason of. the fact that they never made, up to the time of the commencement of the action, any claim of recovery of the land, nor any objection to the railroad company’s using it, or that the condition had not been performed.

The rights of the plaintiffs to recover I have simply stated as they make it, that is, that under the facts and circumstances of the case they were entitled to charge the company with the value of the premises, because compensation has never been paid and the company have appropriated in fact, the land; and as I have said the court below held that action could not be maintained by the plaintiffs and so charged the jury.

It is entirely immaterial, as we think, and as viewed by the court below, what the condition was, whether it was a covenant or a condition subsequent; but we are not disposed to hesitate about the matter, and consider it in the light claimed by the plaintiffs, that it was a condition subsequent and the performance of which might avoid the estate. If a condition subsequent, however, the thing did not work of itself, it had to be worked by, somebody. A plow is a good thing to plow up land with, but it won’t do much effective excavation unless some body uses it with some kind of force. So a condition subsequent is a very good thing to rely upon, but it don’t work out any one’s rights of itself; the grantor in the deed must do something. If he wants to recover the land on the ground that the condition subsequent has not been performed, he has either got to enter the premises and take possession on that ground for the reason that the condition was not performed, or else be has to apply to a court that can grant him that relief and have the forfeiture declared and a reconveyance ordered of the premises. They commenced an action for that pnrpose upon ejectment in this instance, and finding that would not hold, they abandoned it; that is, we assume so, because it would not hold. An action of ejectment under .the circumstances stated here, was not a remedy open to these parties, and we assume that it is the reason they abandoned it; but the title remains in the grantee until some act is done by which he is ousted from the premises, either by the act of the party or by an act of the court, and the mere saying that the condition has not been complied with, works nothing for either party; it does not disturb title or possession of the grantee in any sense or form.

It seems to be assumed by counsel in argument here, that the mere declaration on their part that the condition was not performed works a forfeiture all right and that they are entitled to recover the land. That is the assumption, and yet in these same briefs, counsel for the plaintiffs in error, says this: “ A conveyance upon a condition subsequent passes a present estate in the land subject to be defeated by non-performance of the condition and the estate continues until avoided for breach of the condition by one having a right to avoid it.” It is expressed in a little different language from mine, but it includes what I have said, that some one, who has a right to avoid it, must in some way avoid it, either by taking possession of the premises and ousting the grantee, on the ground that he has not performed the condition, or else by application to a court of justice upon that proposition. They say: “If devised, the condition is transmitted, for the condition endures until performed, destroyed, released, waived or barredand the same admissions are substantially made in this long brief of our Brother Jones; and yet, after all, as I have said, the arguments proceeded upon the proposition all the way through, that the mere claim on the part of the vendor or the grantor, that the condition has not been performed, avoids the estate and we are entitled to recover the full value of it, if the party don’t give it up, without entering into the estate and dispossessing the grantee or without having an order or decree of the court to confirm it.

As I have read from their own briefs, the right to, enforce a forfeiture in such a case may be waived and barred. It is expressly waived in this case, waived in the petition. They were compelled to waive it, I suppose, from the knowledge of the fact that the deed was made early in 1871 and the condition subsequent was to be performed within two years, and from that time on to 1890 — seventeen years after the condition was to be performed (the road to be built and operated) — the plaintiffs remained quiet, allowing, as they say, the railroad company to be in possession and make large and valuable improvements and expend a large amount of money upon the land; and it is evident from these undisputed facts, that they waived the performance ol that condition and they were barred from enforcing it. The facts show that they waived it and were barred from enforcing the condition subsequent, and therefore the estate remains in the grantee, the title is there, the railroad company is the owner in fee of the land ; and I say these facts not only appear uncontroverted and undisputed, but it is pressed as a ground for recovery in this ninth amended petition, that they did in fact waive the performance of the condition, waive it as a forfeiture, but they say that the condition was not in fact performed, and by reason of that, they still have the title and they offer it and deposit a deed with the clerk of the court of the lands to the defendants and ask to recover the value of the land as upon appropriation, alleging that the company was not entitled to the land under the deed by reason of the failure to perform the condition, and therefore they must be considered as having appropriated it in fact wrongfully and without a right.

That is getting into a muddle or contradictions that I am not able to properly extricate. If, by way of error, the grantee becomes absolutely vested with the title to the premises, I do not see what title there is left in the plaintiffs to convey, and if that is so, I am at a loss to know what remedy they have. If they have a remedy, what is it ? What else is left them, if they have waived the condition and the estate has become absolute in the vendees ?

As I have stated, the court below held that in all events they could not maintain this action and that is sufficient for us to determine whether the court was right in that or not. We are not called upon to determine whether there is any possible remedy left open to the grantors, the Fields’. It is time enough to decide cases when they arise. The question is whether they were entitled to maintain this action ? If they were not, that ends the question before this court at this time.

Is it true, or is it the law, that under such circumstances, being unable to recover or enforce a forfeiture of a condition subsequent, if there was one, unable to do that by reason of their own conduct, if for nothing else, if the condition had not been performed to the letter, unable to enforce it by reason of their own conduct — standing silently by for seventeen years and uttering no word of complaint — never suggesting to this railroad company “ you do not own that land, here was a condition subsequent, you should have performed it but you have not periormed it” — standing quietly by and perceptibly reaping the benefits to their other land of the construction of the road as it was run — :or, according to the evidence, an immense traffic had been upon it — not by way of carrying passengers but by freight, they reaping the benefit of it and standing by, I say, are they entitled now to maintain this action to recover as upon an appropriation, in tact, upon the assumption that the facts in the case show that the company got possession, or is holding possession of the land under its power of eminent domain, an appropriation in fact, although not in law ? It is somewhat difficult to grant them that proposition, that they are entitled to anything like that, and say they may recover six hundred thousand dollars for the value of these premises.

As I have said, I need not undertake to decide whether they have any remedy at all or not. If they have any, perhaps it would be an action for damages for a breach of contract, if there is anything left, but I am at a loss to see how they can maintain this action, or in what respect the position assumed by the court of common pleas was wrong.

The much larger part of these briefs are devoted to the question of the construction of this deed, whether it is a condition subsequent or a covenant, and but little is said in regard to the right to maintain this action in its present form, so far as I could make out, and I have examined the authorities submitted by counsel for the plaintiffs in error upon that question. That is the only question we have in the case, because, as I have already said, as the court below said, it is entirely immaterial what you call that condition, whether you call it a covenant or a condition subsequent, if it is one, by reason of the waiver, from the fact that they are barred from enforcing it as such, so it is entirely immaterial what you call it, the name gives no sanctity to it in any way or form.

They rely and cite to us Chapman v. Railway Co., 6 Ohio St. 119, as sanctioning this action. It is a long case and I am not going to take up much time with it. I will read but two paragraphs of it, and I take that from the opinion ; on page 139 the court say: “ The analogies, spirit and policy of the statutes before quoted, seem to point to such a remedy, and we are strongly impressed with the conviction that the equities of the case demand it.

“The particular injunction prayed for by the complainants in this, case, is in the nature of, and is sought by the complainants, in order that it may operate so as to enforce a specific performance of the contracts between them and the railroad company.

It seems to be well settled, that where it is found that a complainant was originally entitled to a specific performance, but pending the litigation, the very subject matter of the agreement, to which the complainant is found to be entitled, is abstracted or destroyed, a court of equity will not turn him over to seek his damages in a court of law, but will afford a remedy by compensation.”

We concede that law to the fullest extent. No doubt it is true and beyond question, that where a party commences a proceeding for a specific performance of a contract, or, as the court here puts it, for an injunction, and looking to that remedy and pending that litigation, finding that he was originally entitled to a specific performance, the defendant abstracts or destroys the property in controversy, so' that specific performance cannot be decreed, a court of equity will afford him a remedy by compensation for the property which he ought to have received. That is good law or good equity, if you please, which is enforced in courts of equity. Whether it is appropriately applied to Chapman v. Railway Co. supra. I will not say, but it was an action commenced originally for an injunction, as the court declares, and they find the parties were entitled to that injunction originally and that the property became destroyed in litigation. If that has any bearing upon this case before us, to show that these parties are entitled to recover the value of ■these premises, why we are not able to see it.

A quite recent case is next cited; and in this connection I may say. that it is a little difficult to understand from the petition and from the arguments submitted by some counsel for the plaintiffs as compared with the arguments of others of them, whether the argument is predicated upon the statute of the state, or whether they claim the right to exist independent of the statute. As to Fries v. Railway Co., 56 Ohio St. 135 (46 N.N.Rep.516), Spear, J., delivering the opinion, on page 136, says this: “ It appeared by the second amended petition, among other things, that the land taken (three and acres) was part of a farm in Huron county, to which plaintiff, April 3,1880, acquired title, with every claim and right of action of the former owner; that prior to that date the Wheeling & Fake Erie Railroad Company, without the consent of the owners, took possession of the strip and constructed its railroad thereon; that June 25,1886, the Wheeling & Fake Erie Railway Company, the successor of the said rail, road company, without any grant or conveyance from, or agreement with-the plaintiff; without any right or title, legal or equitable thereto, and with the verbal consent of plaintiff on condition of compensation never performed, took possession of said strip, and has since used and now uses it as an integral part of its permanent railroad.” It was originally taken possession of without the consent of the owner, not under a deed conveying the title transferring the title and the possession both as in this case — but it was a case where the defendant had taken possession without right or authority of any character, without the consent of the owner, and Judge Spear says further along in regard to this : “ As to the right of ejectment we suppose the law is entirely settled. He could not have that remedy. His consent to the entry would estop him. Goodin v. Canal Co., 18 Ohio St. 169; Penna. Co. v. Platt, 47 Ohio St. 366 (25 N. E. Rep. 1028). Thereason for the rule lies in considerations of public convenience.”

Then again, who are they that are entitled to the benefit of this statute ? The court says, “Why, all owners whose lands have been taken by such a corporation and have not been appropriated and paid for, or are not held by any agreement in writing with the owner, shall have the benefit of this statute.” And again, “ If an agreement in writing has been executed by which the land is held, that is the measure of the owners’ rights and such owner cannot have the benefit of the statute. Verbal agreements are not recognized as binding, for the same reason, doubtless, that induced the enactment of our statute of frauds with respect to verbal contracts for lands, viz: to prevent frauds and perjuries. The natural effect of the words used is, that, if the owner has a contract in writing, on which he may refy, that must be his sole reliance.” It would hardly be worth while to read any more of that. That excludes the plaintiffs in this case from any such remedy, at least undet the statute referred to, by which parties whose lands are taken withour right or held without contract in writing, may compel an appropriation or may sue for compensation as upon appropriation. Sec. 6448, Rev. Stat.

In this case the land was taken possession of under an agreement in writing, under a deed conveying the legal title and has evidently been held ever since in the same way.

The next case they refer to is Longworth v. Cincinnati, 48 Ohio St. 637 (29 N. E. Rep. 274), and I do not mean to take up much time with that case. Spear, J., delivered the opinion in that case also, and he says on page 640: “ It was shown by the pleadings that the city had wrongfully taken possession of the plaintiff’s property, and had devoted it to the purposes of a street, a public use. No appropriation in accordance with law had been made, nor had compensation in money, or otherwise, been awarded the owners. The city simply took the property by force and was continuing its unlawful use, refusing to yield it up to the owners and also refusing to make any compensation for it; thus disregarding the plaintiff’s natural rights, and violating their constitutional right secured by that section of the constitution which provides that private property shall ever be held inviolate but subservient to the public welfare, and where taken for public use, a compensation therefor shall first be made in money.”

It is hardly necessary to say anything more about that. Where a city had taken possession without any lawful authority by force and held the property for street purposes, there, undoubtedly, this statute would apply, because the city was not in possession under a contract in writing and had paid nothing, and in that character of a case it is well settled that the party may have one of the two remedies. He may sue for compensation for the value of the property, bringing in a deed and offering to convey the title, so when he gets the compensation the other party will have the title if it has not in the beginning, or he may compel an appropriation under Sec. 6448, Rev. Stat., the statute, which the court say is a cumulative remedy only, but it affords'no aid to us here, where the parties are in possession under a conveyance.

The next case is Platt v. Pennsylvania Co., 43 Ohio St. 228 (1 N.E. Rep. 420). Now that was a peculiar case. Originally the Rake Shore Company had commenced appropriation proceedings and had by appro-pi iation proceedings obtained possession of the strip in question, one hundred feet wide. Many years thereafter, not desiring to hold the whole strip, not using it all, they conveyed twenty-five feet of it to the Pennsylvania Company, who thereupon entered against the protest of the former owner or the owners, and built its road and tracks and raised them up above the level of the Rake Shore, so as to cut off his communication to other parts and in that original appropriation, not a dollar was paid tor the land. Under the old constitution, they could set off benefits against the damages and so it was fixed in that case, they just balanced the thing up, and the owner of the land got nothing at all- in compensation for his premises, when it was appropriated by the Rake Shore road. In addition thereto the Pennsylvania Company took an additional amount of land and this action grew out of those facts. “ The Rake Shore Company acquired an easement only, though an easement in perpetuity, and where there is an abandonment of such easement, the interest acquired reverts to the owner of'the fee;” and it was held by the court that the action of the Rake Shore Railroad Company was an abandonment of that portion of the land originally appropriated to its use, having been abandoned by that company as not being necessary or needed for the operation of its road, and that by reason of such abandonment, the title and the fee and the right of possession all reverted to the owner.

Now you see what a different state of facts that presents from the one before us. It was an appropriation proceeding for which he had not received a dollar, therefore the owner who owned the fee was entitled to recover it, but he acquiesced in the appropriation, in fact made of it by the Pennsylvania Company and tendered the deed and asked for the value of it and he got it, and it has no more application to the case at bar than any of the other cases I have referred to.

There is one case cited or referred to in the brief of counsel in that case and commented upon by the court, that is Junction Railroad Company v. Ruggles, 7 Ohio St. 1. “ It appeared that Ruggles executed to the Ohio Railroad Company an instrument in writing, under seal, agreeing that, if the company would locate its road through any lands possessed by him, he would quitclaim to it so much land as the company was authorized to take, to-wit, a strip one hundred feet in width through such lands, for the purpose of location and construction of the road, with the right to immediate possession, and of taking and converting to their own use stone, gravel, etc. The company located its road through the lands of Ruggles, but before the road was completed, the state, which had its credit to the company, took possession of and subsequently sold the road, under the act of 1837 and a joint resolution passed in 1845. Ebenezer Lane became purchaser, who conveyed his title to the Junction Railroad Company, and that company proceeded to build the road through the lands of Ruggles, on the strip so located by the Ohio Railroad Company. Ruggles objecting and threatening to bring suit, the Junction Railroad Company commenced an action and obtained an injunction restraining him from interfering with the construction of the road, and this court-made the injunction perpetual. Stress is placed by the court, and properly placed, on the fact that the rights, as against Ruggles, were acquired, not by invoking the power of eminent domain, but by contract, and the case really turned on the assignability of the contract, in view of the terms of the agreement, the legislation and the existing facts.”

So here the possession acquired by the defendant in this case was not under the power of eminent domain, or any claimed exercise of any such power, but was by deed conveying title to it and confessedly, it has that‘title now and it has possession and has ever since retained possession under that deed.

Now under this statute of the state [See Secs. 6448, Rev. Stat., et seq. — Ed.] authorizing a compulsory appropriation proceeding, certainly this proceeding could not be maintained, for the reason that possession is held under and by virtue of a writing or a contract between the.parties, and that contract is the sole measure of the remedy or rights of either, although this was the precise point upon which the case went off below, the court charging that this kind of a case or this particular case, seeking for a recovery of the value as upon an appropriation in fact, could not be maintained; no case has been cited by counsel, wherein it .ever said it could be maintained, not one; I mean a case anything similar in facts to this, where the land was taken possession of, nor under the exercise of the'power of eminent domain, whether in fact or in law they shall appropriate, not under that, but where possession was taken and given under tbe deed, under tbe title; any sucb case as tbat, where tbe remedy is left to the party — where he is barred of claiming the forfeiture and cannot rely upon the condition subsequent; any case that holds that in such an instance or under such a state of facts he may maintain an action [See Sec. 6448, Rev. Stat. — Ed.] to recover the full value of the premises as if no contract had ever been made; no such case of that character has been submitted to us and we can conceive of no such right vesting in the party.

If there is any remedy at all, it may be, as intimated by the court below in the fore part of its charge, an action for damages for a breach of contract, but it is time enough to pass upon that question when it arises. Suffice it to say, that here it is clear to us that this action cannot be maintained and that the court below did not err in so charging the jury.

This disposes of the case and we need not refer to the second proposition which the court charged the jury also prevented a recovery, that this condition was substantially performed, because it is entirely immaterial in this case whether it was performed or not. There is no right to maintain this action upon any principle of law or equity that we are aware of, and none certainly has been given to us, which shows that the party has any such right.

The judgment of the court below is therefore affirmed.


author: FRAZIER, J.

text:
    EXEMPTION — ESTATES—DOWER-
    [Ashtabula (7th) Circuit Court,
    October Term, 1897.]
    Laubie, Frazier and Burrows, JJ.
    F. R. SIMMONS ET AL. v. ADMR. OF SARAH J. MOORE ET AL.
    1. Exemption Arrowed asat Time of Finar Distribution:
    Tbe finding in an order to sell real estate upon petition by an administrator making the heir, mortgagees of deceased and persons claiming liens as judgment creditors of the heir parties, that such creditors of the heir had a lien on his interest by virtue of the levy of executions, after the death of the ancestor (neither appealed or reversed), is not a bar to an allowance in lieu of a homestead under bee. 5441, Rev. Stat.,.if at the time the sale is made and proceeds distributed, he, by reason of changed circumstances, is entitled to the exemption, although at the time the order of sale was made he was unmarried and not entitled to the exemption.
    2. Exemption Superior to Judgment Lien.
    The debtor’s right to homestead exemption under Sec. 5441, Rev. Stat., is superior to a judgment lien. Therefore, it is not necessary to change the findings and order of sale against the property of a debtor, if he be iound entitled to an exemption in lieu of a homestead.
    . Rure as to Merger of Estates.
    A merger of two or more estates, which, by the rules of law may merge, will be held to have merged only when justice will be promoted thereby. A dower estate does not merge in and is not extinguished by the estate inherited.

      4. Husband Inherits Subject to Incumbrances, etc.
    A husband inheriting real property from the estate of his wife, takes it encum> bered with all the indebtedness of the wife and the expenses of administering upon her estate. If the estate is insolvent, a judgment creditor of the husband reaches nothing by levying an execution upon the property descended to him.
    5. Levy on Unassigned Dower is Void.
    A levy upon the unassigned dower of a husband is unauthorized and void»
    Heard on Error.
    Hoyt & Munsell, for judgment creditors.
    G. W. Belknap and C. A. White íor U. A. Moore.
   FRAZIER, J.

Proceedings in error are prosecuted by E. R. Simmons and others, claiming to have liens by reason of levies made after the death of Sarah J. Moore, of executions issued on judgments against A. U. Moore.

A. U. Moore, as administrator of his wile’s estate, commenced proceedings in the probate court for the sale of the real estate of his deceased wife. It is an uncontroverted fact that Mrs. Moore was insolvent at her decease.

The administrator made not only himself, as heir, but the mortgagees of his wife, parties, and averred that certain other parties claimed an interest in these premises, as creditors of the surviving husband, who was also administrator.

The case was disposed of in the probate court, which, under our statute, had full jurisdiction in the matter and authority to determine the validity and priority of the liens. The case was then appealed to the court of common pleas and was submitted in that court upon an agreed statement of facts. The case was disposed of by the learned udge of the court of common pleas, and his opinion is published in Moore v. Moore, 6 Dec. 154. We only propose to remark upon such matters as are urged in this hearing as do not appear to be directly alluded to in that opinion.

By the agreed statement of facts, it is shown that A. U. Moore received an order of sale from the probate court in this proceeding for the sale of all of the real estate of which Sarah J. Moore died seized on November 18, 1895, and that on said date he received an offer for tract 1 of said property from Richards Brothers, to purchase said tract for $3,500, the appraised value thereof.

That on March 14, 1896, the defendant Moore was remarried, and since that date has been a married man, the head and support of a family; that he is a resident of Ohio, and neither he nor his wife own a homestead.

That on March 19, 1896, he accepted the offer of said Richards Brothers for said tract 1, and reported to the probate court, the sale, which was confirmed and deed made and delivered and said $3,500, paid

That on August 26,1895, the creditors of A. U. Moore caused exe_ cutions to issue and they were levied and return made by the sheriff; “ No goods or chattels of the within named A. U. Moore being found to levy, I did, on the 26th day of August, A. D. 1895, at the hour of two o’clock P. M., levy the annexed writ upon the following described real estate (describing the same real estate described in the petition filed by the administrator to sell lands in the probate court in this case). No further proceedings by me under and by virtue of the annexed writ and the same is returned, no money made, not satisfied.”

It is now inquired, what was brought into the court of common pleas by the appeal, and it is urged that the order and finding in the probate court, upon which the premises were sold, was not appealed.

One thing I apprehend is certain : There can be no question but the order of distribution in this case was appealed from. The appeal was perfected within the time prescribed by statute from the making of that order.

It is contended that the finding of the amount due each creditor, and the priorities, is in.effect a judgment, and the finding that the creditors of A. U. Moore had obtained liens upon his dower interest by their levies not being opened up by the appeal, the proceeds of sale must be distributed as there found. We think the same rule prevails in this action, as would prevail in an ordinary proceeding to foreclose a mortgage, where other mortgagees and judgment creditors are made parties to marshal liens, and a finding of amount due each, and the priorities, with an order to sell, to satisfy the sums found due. If a party is found to be entitled to an exemption in lieu of a homestead under Sec. 5441) Rev. Stat., it is not necessary to change the findings and order of sale. The mere fact that a lien exists, does not bar the right to an allowance of homestead or exemption in lieu of it. It is allowed because in law the debtor’s right to it is a higher and better right, a right more favored, and superior to a judgment lien.

In McConville v. Lee, 31 Ohio St. 447, 450, it is said: “ Nor can it make any difference that previous to the sale, an order had been made that the proceeds of the sale should be applied first in payment of costs> then in satisfaction of the mortgage debt, and then in satisfaction of the judgment. The decree in that respect was within control of the court until there was actual distribution.”

The only effect, so far as creditors are concerned is, that there is that amount less to distribute under the order, and they are affected just as they would have been had the premises sold for that sum less than it brought. A lien may exist, but it is only valuable to the lien-holder if the property is not consumed in payment of prior liens or superior claims.

The demand for exemption was made by motion filed in the probate court on the day before sale. The court has authority to make or refuse an allowance under Sec. 5441, Rev. Stat., out of the proceeds of sale as warranted by the facts or changed circumstances of the parties, as they exist at the time the surplus is disposed of.

The order appealed from and in question here is only the right of A. U. Moore to have an allowance in lieu of a homestead.

The authorities appear numerous upon the question to which I have referred, especially Niehaus v. Faul, 43 Ohio St. 68 [1 N. E. Rep. 87], where it is held: “The right to demand an allowance in lieu of a homestead under Sec. 5441, Rev. Stat., out of the proceeds of the second sale, is to be determined by the state of facts at the time the surplus arising from such sale was finally disposed of by the court.”

It is claimed also that it was a fraud upon the creditors for him to get married, and put himself in a state to make a demand in lieu of a homestead. We have upon that subject the case of Mortley v. Flanagan, 38 Ohio St. 401, the syllabus of which is : • Where the members of a firm acting in good faith, dissolve the partnership, and one member sells his interest in the partnership property to the other, the latter will not be deprived of the right to hold such property exempt from the payment of a debt thereafter asserted against him, on the ground that such debt was a partnership debt due at the time of the dissolution, nor will the fact that the partners knew the firm to be insolvent at the time of such dissolution, make any difference. Gaylord v. Imhoff, 26 Ohio St. 317, distinguished.”

Judge Okey, in the opinion, comments as follows: “ The denial in the reply seems to be as broad as the averments in the answer; but if we construe the reply as admitting that one of the reasons which induced the dissolution and the sale to A. C. Flanagan was to enable him to claim an exemption from execution, the result would be the same. A sale fairly and honestly made by one member of a firm of his interest in the partnership property and effects to the other partner, will not be rendered invalid by the fact that it was expected such partner would thereafter avail himself of the provisions of the statute to hold such property exempt from execution. Such a purpose where the purchase is bona fide is not the subject of averment or proof.”

If it is a fraud for a man to put himself in a position to demand a homestead, the whole right to have a homestead would be a fraud.

Having said this much we are content to affirm this case on the other questions made in the record, upon the reasoning of Judge How-land, in Moore v. Moore, supra. Judgment will be affirmed with costs, no penalty.