author: VOORHEES, J.

text:
    EASEMENTS.
    [Tuscarawas (5th) Circuit Court,
    June Term, 1902.]
    Douglass, Voorhees and Donahue, JJ.
    George F. Mosher v. Enos Hibbs.
    1. Easement — Private Way — Implied Grant.
    Where the owner of a body of land, during his occupancy of it, constructs a private way over one part of it to another, as a means of egress and ingress to the latter from the public highway, which way is apparent, continually used, and reasonably necessary to the use and enjoyment of the land to which the way is constructed, and also adds materially to its value, and afterwards sells and conveys by deed the part with the way to it, and retains the part with the way over it, his grantee takes his part, to be enjoyed with reference to the way as the same existed at the time of the conveyance, with an implied grant of the way to it over that retained by the grantor, as an easement therein.
    X Same — Private Way is an Appurtenance to Tract' Conveyed.
    Such private way is an appurtenance to the tract conveyed, and the right thereto passes without being expressed in the deed.
    8. Grantee’s Tract Need not be Entirely Surrounded.
    It is not required that the grantee’s tract shall be entirely surrounded by the lands of the grantor; it may be partly surrounded by those of the grantor and partly by those of a stranger, and if the grantee’s tract is inaccessible except through the lands of his grantor or those of a stranger, the right to such private way shall pass as appurtenant to the grant.
    4. Grantee’s Right of Way not Divested by Purchase of Other Lands.
    A way by grant or implication is not divested by the after purchase of other lands over which the grantee might have ingress and egress.
    6. Right of Way by Grant not Defeated by Removal of Necessity.
    Where the way in question is by grant, it is not material that it is one of necessity ; it is sufficient if it be reasonably necessary to the enjoyment of the land granted, and materially adds to its value.
    On Appeal.
    A. W. Patrick and Helea & Green, tor plaintiff.

      John S. Graham, for defendant, cited :
    A grant of land which has no outlet to the street except over the grantor’s lot carries with it a right of way over such lot. Kringel v. Nitschmann, 40 S. W. Rep. 68 [15 Tex. Civ. App. 641].
    On the sale of a tract of land surrounded in part by the lands of the vendor and in part by the lands of strangers the purchaser has an implied grant of a way over the other lands of the grantor. Pleas v. Thomas, 22 So. Rep. 820 [25 Miss. 495],
    Where the original owner of adjoining tracts of land conveyed one of the tracts to plaintiff’s grantor, retaining the other to which there was no access save over the lands so conveyed, no right of way being expressly reserved in the deed, such reservation will be implied. Willey v. Thwing, 34 Atl. Rep. 428 [68 Vt. 128],
    Where the owner of eighty acres of land fronting on a highway conveyed to plaintiff’s grantor, a remote twenty acres thereof having no way of egress to any highway, except over the remaining sixty acres, the contemporaneous' conveyance of said sixty acres by said owner “ in trust for himself,” he continuing in possession, does not defeat the attachment of a way to said sixty acre tract. Miller v. Richards, 38 N. E. Rep. 854 [139 Ind. 263],
    On a grant of land to which there is no access except by a private road laid out and used by the grantor o\ er his other lands, a right to use the road passes also. Barnard v. Eloyd, 24 Pac. Rep. 658 [85 Cal. 131].
    This right of way that passes as appurtenant to the land will not be lost or affected if the purchaser should purchase him an outlet over the lands of others. The right of way easement being appurtenant to and remaining with the land is a part of it, and can only be extinguished by merger of the two estates or by other process known to the law to divest real estate. Estep v. Hammons, 46 S. W. Rep. 715, 716 [20 Ky. Eaw 448].
    One entitled to pass over certain lands to reach a parcel of his real property is not obliged to surrender such right on becoming the owner of other realty over which he might pass to the first mentioned land. Zell v. Universalist Society, 13 Atl. Rep. 447 [119 Pa. St. 390; 4 Am. St. Rep. 654],
    For easement and implied grant see Baker v. Rice, 56 Ohio St. 463 [47 N. E. Rep. 653]; National Exchange Bank v. Cunningham, 46 Ohio St. 575 [22 N. E. Rep. 924],
    J. H. Mitchell, for defendant, cited:
    An inconvenience may be so great as to amount to that kind of necessity which the law requires, although it may not be an absolute or irresistible necessity. Lawton v. Rivers, 2 McCord (S. C.) 445q Giauque Road Laws 509, note.
    We think the defendant’s case is completely sustained by Baker v. Rice, 56 Ohio St. 463 [49 N. E. Rep. 653], and cases therein cited by Judge Minshall. Also Meredith v. Frank, 56 Ohio St. 479 [47 N. E. Rep. 656].
    A way by grant or implication differs from a mere way by “necessity” in this, that it is not divested by the after-purchase of other lands, over which the party might have ingress and egress. In short, that having once vested in the purchaser, it remains so vested. Zell v. Universalist Society, 13 Atl. Rep. 447 [119 Pa. St. 390 ; 4 Am. St. Rep. 654, note]; Palmer v. Palmer, 44 N. E. Rep. 966 [150 N. Y. 139; 55 Am. St. Rep. 653].
    Grant of a continuous and apparent easement is implied on severance of heritage, where, though having no legal existence as an easement, it has in fact been used by the owner during the unity of the heritage, or where it is necessary to the full enjoyment of the several ■portions of the heritage, Elliott v. Rhett, 5 Rich. (S. C.) 405 [57 Am. Dec. 750]; Blum v. Weston, 36 Pac. Rep. 778 [102 Cal. 362 ; 41 Am. St. Rep. 188]; Seibert v. Levan, 8 Pa. St. 383 [49 Am. Dec. 525]; Cleveland v. Williams, 29 Tex. 204 [94 Am. Dec. 260]; Lide v. Hadley, 36 Ala. 627 [76 Am. Dec. 338].
    A right of way, appurtenant to land, is appurtenant to the whole and every part of it, and if such land be divided and conveyed in separate parcels, a right of way thereby passes to each of the grantees. Underwood v. Carney, 55 Mass. (1 Cush.) 285 ; Watson v. Bioren, 1 Serg. & R. 227.
   VOORHEES, J.

This action comes into this court on appeal. The nature of the suit is to enjoin the defendant from using a certain right of way over the premises oí the plaintiff. The plaintiff in his petition describes his premises and alleges that the defendant is threatening to use a certain right of -way that extends over such premises.

The situation of the property in controversy is substantially this:

The plaintiff is the owner of a large tract of land, through which there has been in use for many years a road or private way leading from the public highway, known as the New Philadelphia and Uhrichsville road, in a southeasterly direction to a remote portion of his farm, crossing the tracks of the C. L. & W. railroad at a designated farm crossing, and thence continuing in a southeasterly direction to other portions of plaintiff’s premises, owned by him prior to 1893.

In 1898 the plaintiffs sold a portion of said lands, a twenty-two acre tract, to the defendant. The portion sold lies in a southeasterly direction from 'where this road or private way leads into the public highway and south of the railroad. It is surrounded on three sides, at least, by lands owned by the plaintiff; the other side, at the time’of said purchase, belonged to a man by the name of Kinsey. At the time of said purchase this road or private way for at least two-thirds of its distance was enclosed on each side by a fence, and it was a clearly marked roadway for the use and convenience of that part of the farm owned by the plaintiff lying in that remote portion where said twenty-two acre tract was situated. This right of way crossed the tracks of the said railroad at a permanent farm crossing and continued in a southeasterly direction to said twenty-two acre tract. After it leaves the railroad crossing the way was not so distinctly marked by fences as the other portion of the route, but it is contended that there was a distinct, visible, well defined and marked way. leading from said crossing to said twenty-two acre tract. The only access to the twenty-two acre tract from the public highway was through this road or right of way over the lands of the plaintiff. The plaintiff has maintained along this way gates for the convenience of himself and for the use of his farm, and this was its condition when the purchase was made by the defendant.

It is contended by defendant that when this land was sold and conveyed to him there was this distinct, definite right of way, leading from the public road, the New Philadelphia and Uhrichsville highway, through the premises of the plaintiff to said twenty-two acre tract; that it had been used for that purpose by the plaintiff and by any one who had occasion to use that portion of the farm that was remote from the public road, and the defendant claims and insists that he purchased said tract with it in view, although it is not referred to in the deed, and there was no exception in the deed to a right of way, nor was it excluded from the covenants of the deed.

The first question involved is: Whether there was any visible, well defined right of way to this twenty-two acre tract at the time of its purchase by plaintiff. If so, what right, if any, would this purchaser, the defendant, have in this right of way.

The second and principal question involved is: Whether the right to use this right of way vested in the purchaser of this twenty-two acre tract by grant.

We find as a fact:

(1) That there was this distinct, visible well defined and marked road or .way, leading from the public highway over the land of the plaintiff to this twenty-two acre tract at the time of the purchase by defendant; that said way was continually used and reasonably necessary to the use and enjoyment of, and added materially to the value of, said twenty-two acre tract, and that by reason thereof, when the defendant purchased said tract from the plaintiff, he secured by grant a right of way in such road or way that cannot be interfered with by the plaintiff by injunction or otherwise.

(2) That this right being by grant, rather than a right from necessity, the defendant takes it subject to conditions or burdens that were imposed upon it by the owner at the time of the purchase. That is, the defendant must take it subject to such gates of the plaintiff as were thereon at the time of said purchase, and he is charged with the duty of opening and closing the same in lawful manner while in the use of said way. On the other hand plaintiff has no right to impose any additional or further burden upon the right of way than existed at the time of the purchase.

(3) There is another issue of facts to be considered and that is: It is contended by the plaintiff that after this property was sold he required of the defendant that he pay rent for the use of this right of way. If that were true; if that was the nature of the contract between the parties; if, instead of the defendant relying upon the rights that would be secured to him by the law, he undertook to secure a right to use the way by paying rent for it, then it might be terminated by the plaintiff. But, as a question of fact, we find there was no such understanding or arrangement between the parties, and what was paid by the defendant to the plaintiff was not paid as rent for the right of way, but was paid for the use of a strip of ground that belonged to plaintiff for raising vegetables, etc., and the amounts so paid were not intended and were not paid as rent for the use of said right of way.

(4) There is still another question to be considered and that is: What effect, if any, does the fact, that since defendant purchased this twenty-two acre tract from plaintiff he has purchased an eleven acre tract from a third party, by which he can have access to another way or outlet, from his premises to the public highway, have upon his rights in or to this right of way secured by grant as found when be purchased this twenty-two acre tract. If his right were only such as inured to him from necessity, perhaps he could only use it so long as that necessity existed. But that question is not before us, and it is not necessary for us to pass upon it, for the reason, we hold that this is not a right of way from necessity, but is a grant secured to him by reason of the situation of the property of the plaintiff at the time he sold the twenty-two acre tract to the defendant; and we hold, although the defendant may now have another right of way, it does not divest him of the rights secured to him from conditions and circumstances as they existed at the time the purchase and the conveyance was made to him. Although he may have since acquired another outlet, this will not deprive him of the rights that vested in him when he purchased the twenty-two acre tract.

If these propositions or conclusions are sustained by the law, they dispose of this case.

Where the owner of a body of land, during his occupancy of it, constructs a private way over one part of it to another, as a means of egress and ingress to the latter from his home and also to the public highway, which way is apparent, continually used and reasonably necessary to the use and enjoyment of the lands to which the way is constructed, and also adds materially to its value, and afterwards sells and conveys by deed the part with the way to it and retains the part with the way over it, his grantee takes his part to be enjoyed with reference to the way as the same existed at the time of the conveyance, with an implied grant of the way to it over that retained by his grantor, as an easement therein.

In support of this see Baker v. Rice, 56 Ohio St. 463 [47 N. E. Rep. 653], and authorities cited in the opinion by Judge Minshall. We think the principle of that case applies here.

' If there had been nothing said about a right of way, or if there had been no visible evidence of a way, or of the use of a right of, way to that part of the farm purchased by the defendant, then the legal rights of the defendant would be such as would arise by the law of necessity. But there being this visible right of way, and the purchase having been made with reference to it, and it having been used and dedicated by the plaintiff to the use and convenience of that part of the farm sold to the defendant, although for his own individual use, yet, when he sold this part of the farm to the defendant, the right to use such highway vested as a property right in the purchaser, notwithstanding there is no reference whatever made to it in the deed.

There is no question as to the value of this right of way to the twenty-two acre tract purchased by the defendant, and this right of way is reasonably necessary to the use of the land, and the plaintiff, as the owner of it, and his grantees are entitled to use it for the convenience of the portion of the farm, namely, the twenty-two acre tract. That being so when he made • the deed, although there is nothing said in the deed about the right of way, there is an implied grant to the purchaser, or grantee named in the deed, of the use of this way; and it becomes a vested property right in him, and he takes it subject to the grantor’s use of the balance of the property over and through which it passes.

In Meredith v. Frank, 56 Ohio St. 479 [47 N. E. Rep. 656], it is held:

“ Where an owner of a tract of land has made and maintained a private way over his land to a public highway, and such way is his only means of ingress and egress to his home, sells and conveys to another a portion of it lying on the public highway, and is thereby deprived of all access to the highway except by the way he had previously constructed and maintained, and which passes through the granted part, and-the facts were well understood by both parties at the time in such case, the way is reserved to the lands of the grantor by implication, although the deed contains a covenant against incumbrances.”'

Applying the principle of this case to the case at bar, suppose the plaintiff here had sold a portion of his farm that lies adjacent to the New Philadelphia and Uhrichsville road, and there was nothing said in the deed about the right of way, yet, it would be reserved to him in the use of the balance of his property, although he made a warranty deed warranting against incumbrances.

Therefore, we think the doctrine of these two cases supra very clearly secures to the defendant in this case an implied grant in this right of way, resulting from the surroundings and conditions of this property at. the time the deed was made.

There has been some contention that this doctrine cannot apply in this case for the reason that this twenty-two acre tract was not entirely surrounded by the land of the plaintiff. We think that makes no difference. It is not required that the grantee’s tract shall be entirely surrounded by the lands of the grantor; it may be partly surrounded by the lands of the grantor and partly by those of a stranger, and if a grantee’s tract is inaccessible except through the lands of his grantor or those of a stranger, the right to such private way shall pass as appurtenant to the grant.

See note in Pettingill v. Porter, 85 Am. Dec. 679 and authorities cited, where the author says :

“ When the grantee’s land is wholly surrounded by what had been the grantor’s other land, or partly by this and partly that of a stranger, or is inaccessible except through the lands of his grantor or those of a stranger, a way by necessity over the lands of the grantor is appurtenant to the grant, and passes as incident to it.”

This meets the contention and claim that because this twenty-two acre tract was not entirely surrounded by the lands of the plaintiff that this grant could not arise by implication.

This leaves but a single question, and that is: Whether the fact that defendant has purchased an adjoining tract of eleven acres, since his purchase of the twenty-two acre tract, thereby giving him a right of way in a different direction, destroys his grant or rights in the way over plaintiff’s land ?

This can apply only where the right of way is one arising from necessity. Such a case would be where there was no outlet, or had been none at the time of the conveyance. In other words, where a party is the owner of a body of land and he sells to another a, portion of it which is surrounded by other lands of the grantor, and where there has been no use made of an outlet or way whatever over his lands, in such a case the right of way is secured to the grantee by necessity. But where there is a fixed and open way, such as we have here, and the purchase is made with reference to it, the grant, which is then made, arises by implication in the way as it then existed, and is not lost by subsequent conditions, as by getting a way in a different direction.

We think the case of Estep v. Hammons, 46 S. W. Rep. 715, 716 [20 Ky. Law 448], is applicable, where the court say:

“ We are of opinion that, by the sale of appellee to appellant of the lot not on a public highway, by implication of law he also sold to appellant, as appurtenant to the lot, a right of way for ingress and egress. The fact that appellant’s lot was bounded on the other three sides by the lands of other parties does not in any way relieve appellee from the rule laid down in the cases supra. This right of way to appellant’s lot passing with it by operation of law, it is wholly immaterial whether it be specially named in the deed or contract of sale. We are also of opinion, from the evidence, that, in the sale by appellee to appellant of the lot in question, there was an agreement on the part of appellee that a right of way over appellee’s remaining land should pass to appellant with the lot for the use of appellant and his family. If the particular location of the right of way was specified in the conveyance, of course that would govern ; but an entire absence of the way in the conveyance would not defeat the right, but would" only leave its location uncertain and undetermined. Nor do we think this right of way that passes as appurtenant to the land would be lost or affected if the purchaser should purchase him an outlet over the lands of others. The right of way easement, being appurtenant to : nd running with the land, is a part of it and can only be extinguished by merger of the two estates, or by other process known to the law to divest real estate.”

The following authority is also in point: Zell v. Universalist Soc., 119 Pa. St. 390 [13 Atl. Rep. 447; 4 Am. St. Rep. 654],

Where the way in question is by grant, it is not material that it is one of necessity; it is sufficient if it be reasonably necessary to the enjoynient of the land granted, and materially adds to its value. Baker v. Rice, 56 Ohio St. 463, 478 [47 N. E. Rep. 653], citing Phillips v. Phillips, 48 Pa. St. 178 [86 Am. Dec. 577].

Therefore, we think this meets the contention, that the defendant is not deprived of the use of this right of way over the lands of the plaintiff because he has since purchesed the eleven acre tract and thereby may have an outlet over lands secured by this subsequent purchase.

Without taking any more time upon the questions presented, we hold that the defendant is entitled to have secured to him, without obstruction, the right to use the right of way over the route that has been used by plaintiff to the twenty-two acre tract, and the plaintiff has no right to interfere with him, but the defendant at the same time has no right to leave open the gates that were used upon the property at the time he made his purchase; and the decree of the court will be in favor of the defendant, as prayed for in his answer and cross-petition, with the costs of the action.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    SCHOOLS.
    [Ashtabula (7th) Circuit Court,
    January Term, 1903.]
    Burrows, Laubie and Cook, JJ.
    Ohio ex rel. Rodgers v. Board of Education of Colebrook Tp. et al.
    Sections 3927-1 Rev. Stat. et seq. Construed.
    Where aboard of education, under Sec. 3927-1 Rev. Stat. et seq., submits to the electors the question of centralizing the schools of the township, but before doing so determines that it will be necessary to issue bonds to secure a fund to purchase a site and erect a building for the purposes of centralization, and upon the ballots, voted at the election, there is printed for centralization of the schools and against centralization of the schools, and also for levying a tax and against levying a tax to purchase a site and erect a building, and at such election the majority of votes cast are in favor of centralization, but against levying a tax: Held, that a writ of mandamus will not be issued to compel the board of education to proceed and centralize the schools when it is shown that theie is not sufficient funds in the treasury to provide the necessary building or buildings to accommodate the centralized schools. Neither will the board be required by such writ to levy the nfhximum tax allowed by law for conducting schools in the township, to make provision for centralizing the schools at some future time.
    Heard on Appeae.
    Hiram E. Starkey, for plaintiff.
    E. J. Betts and A. C. White, for defendants.
   COOK, J.

This action comes into this court by appeal, and is a proceeding in mandamus to require the board of education of Colebrook township to proceed and centralize the schools of such township under the pro* visions of Sec. 3927-1 Rev. Stat. et seq.

Previous to April 6, 1901, more than one-fourth of the qualified electors of Colebrook township petitioned the then existing school board to submit the question of centralization of schools under sections of the law referred to.

The school board passed a resolution to submit the question on April 6, 1901, and also resolved that it was necessary to issue bonds to purchase a site and erect a building for the purposes of such centralization, in the sum of $5,500; and it was also determined to have but one building.

On April 6, 1901, the election was held. There was printed upon the ballots voted by the electors:

“ For Centralization, Yes. For Centralization, No.
“ For levying a tax to purchase a site and erecting a building for centralization of schools, not to exceed $5,500, Yes!
“ For levying a tax to purchase a site and erecting a building for centralization of schools, not to exceed $5,500, No.”

Upon the first proposition to centralize the schools there was a small majority in favor of it, but upon the second proposition t'o levy a tax to purchase a site and erect a building for the purpose of centralizing the schools, there was a small majority against it.

The board of education again submitted the question of levying a tax in May of the same year, to the amount of $5,000, and it was defeated by an increased majority. The board again submitted the question of levying a tax in the following November, to the amount of $3,000, which was again defeated by a still increased majority.

The board that then had control of the schools were in hearty sympathy with the plan of centralizing the schools, and did all in its power to accomplish it. It levied the maximum amount of tax, ten mills, for school purposes, and by April, 1902, had in the treasury $3,000, at least two-thirds of which could be used for the purpose of centralization. It also purchased a site at a cost of $150.

At the spring election in April, 1902, an entirely new board was elected under Sec. 3927-5 Rev. Stat., for the purpose of governing and controlling the centralized schools, and the old board disbanded, and took no further charge of the schools. The new board was elected upon a platform of opposition to the centralization of the schools, and it was determinedly opposed to centralization. It reduced the levy to five mills, which was not much more than one-half the amount required tc sustain the schools, and conducted the schools under the subdistrict plan as before the election upon centralization. The surplus that was in the treasury was exhausted, and the expenses of running the schools increased from $1,800 in 1901 to $2,200 in 1902.

After the alternative writ of mandamus was issued the present board, who are the respondents in this proceeding, submitted to the electors the question of levying a tax to procure a site and erect a building in the sum of $6,000. This was nearly unanimously vofed down by the electors that attended the election, but it is shown that those favorable to centralization generally did not attend the election ; the board of directors being so much opposed to centralizing the schools, and at the election, they as individuals, exerted all their influence against carrying the proposition.

On behalf of the relators it is claimed that it is the duty of the board to proceed with centralization as far as possible, .notwithstanding the adverse vote on the question of levying a tax to pay the bonds that might be issued. That is, it is at least the duty of the board to continue the maximum levy of ten mills until such time as sufficient funds were provided to erect the building, which would take only a few years.

On behalf of the respondents it is claimed that the electors having voted against levying a tax to procure a site and erect a building, that they are not required to take any steps whatever toward centralizing the schools; and especially they are not required to make the maximum levy of ten mills, as that is a matter of discretion so long as they keep the schools properly provided for as they now exist.

We think the respondents are right upon both propositions.

Section 3927-2 Rev. Stat. provides :

(3927-2) Sec. 2. (Submission of question of centralization.) “ A township board of education may submit the question of centralization,' and upon the petition of hot less than one-fourth of the qualified electors of such township district, must submit such question to a vote of the qualified electors of such township district, and if more votes are cast in favor of centralization than against it, at such election, it shall then become the duty of the board of education, and such board of education is required to proceed at once to the centralization of schools of the township and if necessary, purchase a site or sites and erect a suitable building or buildings thereon; provided, that if, at the said election, more votes are cast against the proposition for centralization than for it, the question shall not again be submitted to the electors of said township district for a period of two years.” (94 O. If. 317.)

Section 3927-3 Rev. Stat. provides:

(8927-3) Sec. 3. (Conduct of election.) “ All elections ordered by a board of education in pursuance of section 2 of this act shall be held at the usual place or places of holding township elections, at a regular or special election as may be determined by the board, and notice shall be given and the election conducted in all respects as provided by law for the election of township officers, and the ballots shall have printed thereon: ‘ For centralization — Yes.’ ‘ For centralization — No.’” (94 O. h. 317.)"

Section 3927-4 Rev.. Stat. provides:

(3927-4) Sec. 4. (Submission of question of issuing bonds.) “ Should the board of education deem it necessary to issue bonds to purchase a site or sites or erect a building or buildings for the purposes of such centralization, then the election shall be conducted as provide^ in section three of this act, but in such case the ballots shall have printed thereon: ‘ For levying a tax to purchase-site (or sites) and erect -building (or buildings) for the centralization of schools at a cost not to exceed $-, yes.’ ‘For levying a tax to purchase —.....— site (or sites) and erect-building (or buildings) for the centralization of schools at a cost not to exceed $-, no,’ and if more votes are cast in favor of levying said tax for said purpose than against said proposition, at such election, it shall be the duty of the said board of education, and the board of education is authorized to issue bonds and sell the same as provided by law and to levy a special tax to provide for the payment of the same together with interest thereon; provided, said levy shall not in any one year exceed five mills on the dollar valuation and said bonds shall not bear more than six per cent, interest and shall not be sold at less than their face value.” (94 O. L. 317.)

It will be observed that Sec. 3927-4 Rev. Stat. provides : Should the board of education deem it necessary to issue bonds to purchase a site or sites or erect a building or buildings for the purposes of such centralization, then the election shall be conducted as provided in section three of this act, but in such case the ballot shall have printed thereon: ‘ For levying a tax to purchase -site (or sites) and erect-building (or buildings) for the centralization of schools at a cost not to exceed $-, yes,’ ” and then the same with answer no — so that when the board of education determined it was necessary to issue bonds and levy a tax to pay the same to obtain a site and erect a building that was the proposition that should have been submitted to the electors of the township, and for centralization and against centralization should not have been upon the ballots at all; and the vote being in the negative upon the- question of levying a special tax it was equivalent to voting against centralization. But if we were wrong in this construction of the statute, still the writ should not issue. In State v. Shelby Co. (Comrs.), 36 Ohio St. 326, it is said in the opinion on page 331:

‘ ‘ Mandamus will lie only where there is a plain dereliction of duty upon the part of public officers, and can never be invoked to control discretion which is being exercised in good faith and with’ajsole view to the public welfare.”

While the respondents were determinedly opposed to centralization and did all they could to defeat it, yet no bad faith is shown on the part of the board. The statutes require that the old board should proceed at once to the centralization of the schools, but it could not do so for the want of funds except in the purchase of a site costing $150. The new board was met with the same difficulty. The electors had said centralize if you can do so with what money you can raise with the regular levy; that could not be done except by waiting for a number of years; the board would not be justified in accumulating money year by year for a number of years which was liable to be squandered illegally. Such an act, instead of being “in good faith and with a sole view to the public welfare,” would have been in bad faith. The writ of mandamus must be refused, and the petition of plaintiff dismissed at his costs.


author: SUMMERS, J.

text:
    INSURANCE.
    [Franklin Circuit Court,
    January Term, 1903.]
    Wilson, Sullivan and Summers, JJ.
    State v. Amazon Insurance Company.
    TJneaweui, Insurance by Foreign Insurance Company — Not Necessary to Insure Property in Ohio.
    A fire insurance company, organized under tlie laws of another state, that maintains an office in this state and there enters into contracts of insurance respecting property in other states, or transacts the business of insurance respecting property in other states, is engaged in this state in the transaction of the business of insurance contrary to law, notwithstanding it does not enter into contracts of insurance with citizens of this state, nor insure property in the state.
    Geo. H. Jones, assistant attorney general, for plaintiff, cited:
    What constitutes contract of fire insurance. Commonwealth v.; Wetherbee, 105 Mass. 149 ; Wilson v. Hill, 44 Mass. (3 Mete.) 66 ; Dis-brow v. Jones, Harr. Ch. (Mich.) 48; May Insurance (ed. 1873), Sec. 6; Carpenter v. Insurance Co., 41 U. S. (16 Pet.) 495.
    To have a known place of business in a state where the business oí the corporation is prosecuted, helped forward or managed, is doing business. Solomon v. Webster, 4 Colo. 353, 367; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727 [5 S. Ct. Rep. 739],
    An insurance company in Ohio, aiding in the transaction of its businesss of insurance, is amenable to the laws of Ohio relating to insurance companies., State v. Ackerman, 51 Ohio St. 163, 193 [37 N. E. Rep. 838; 24 R. R.' A. 298]. ,.
    Doing business contemplates a location, having an office, and the investment of some part of its capital within the state. Vaughan v. Righthouse, 71 N. Y. Supp. 799, 801 [64 App. Div. 138]. '

    When the agent of an insurance company sends to the home office in another state premiums, etc., which are there examined and accepted, the contract is made in the home state and not at the residence of the agent. Ramb v. Bowser, 7 Biss. 315, 372.
    An insurance company organized in Pennsylvania had an office and agent in Maryland. This agent insured- property in Virginia. Held that the contract is made in Maryland, and could be sued upon there. 54 Md. 212.
    When an order and note for goods are made in New York for lumber in Alabama, to be accepted finally in Alabama, this is not doing business in New York, but in Alabama. Tallapoosa Rumber Co. v. Holbert, 39 N. Y. Supp. 432, 433 [5 App. Div. 559].
    A foreign corporation which establishes a business domicile here and brings its property within the jurisdiction and mingles it with the general mass of commercial capital, is taxable here. People v. Trust Co., 96 N. Y. 377; People v. Mining Co., 11 N. E. Rep.'155 [105 N. Y. 76].
    The statute meant by “ doing business within the state,” using the state as a business domicile for transacting any substantial part, even though a comparatively small part of the business, which the company was organized to carry on, and in which its capital was embarked. Southern Cotton Oil Co. v. Wemple, 44 Fed. Rep. 24; People y. Wemple, 29 N. E. Rep. 1002 [131 N. Y. 64; 27 Am. St. Rep. 542],
    Establishing a place within the state for doing some part of its corporate business is carrying on business. Judson Taxation, Sec. 181.
    Appointing an agent and sustaining an agency is doing business. Farmers’ Roan & Trust Co. v. Electric Ry. Co., 51 N. E. Rep. 55 [173 111. 439].
    One who in any manner aids in transacting the insurance business of a company within this state, is the agent of such company, even though the policy defines him as the agent of the insured only. Pierce v. People, 106 111. 11 [46 Am. Rep. 683],
    The issuing of policies, the taking of premium notes, collecting or receiving cash premiums, and adjusting and paying, losses, constitute the principal business of insurance companies. Ramb v. Ramb, 6 Biss. 420, 425.
    The statute is for the purpose of regulation as well as protecting citizens of this state. People v. Pavey, 37 N. E. Rep. 691 [151 111. 101].

      The collection of premiums and payment of losses is doing insurance business. Smyth v'. Life Assn. Co., 25 How. Pr. 120; Price v. Insurance Co., 3 Mo. App. 262.
    Taking a note for a premium is doing insurance business. Beneo v. Yesler, 6 West Coast Rep. 809; Hacheny v. Leary, 7 Pac. Rep. 329 [12 Ore. 40].
    In these two latter cases is a full discussion upon the question of what is doing an insurance business.
    Policies written in any state on property outside of the state are contracts of the state where written. Western Mass. Mut. Fire Ins. Co. v. Storage Co., 41 Wkly. Notes of Cases 472.
    The polices issued by the defendant company were made and signed and mailed at Lima, and as soon as mailed the contracts were binding on the insurance company. Huntley v. Merlill, 32 Barb. 628 ; Hyde v. Goodnow, 3 N. Y. 266; Western v. Insurance Co., 12 N. Y. 258 ; Lamb v. Bowser, 7 Biss. 315; May Insurance, Sec. 66.
    The making of a contract is business within the meaning of the Sunday labor acts. Thurman, J., in Bloom v. Richards, 2 Ohio St. 387, 388.
    In support of the proposition that a foreign corporation is subject entirely to the laws and polic3r of a state in which it seeks to do business, we refer to Newburg Petroleum Co. v. Weare, 27 Ohio St. 343; Western Union Telegraph Co. v. Mayer, 28 Ohio St. 521 ; Lewis v. Bank, 12 Ohio 132 [40. Am. Dec. 469]; Bank v. Jones, 16 Ohio St. 145; 6 Thompson Corporations, Sec. 7884; Paul v. Virginia, 75 U. S. (8 Wall.) 168; Hooper v. California, 155 U. S. 648 [15 S. Ct. Rep. 207]; Orient Ins. Co. v. Daggs, 172 U. S. 557 [19 S. Ct. Rep. 281].
    The power to exclude embraces the power to regulate. Hooper v. California, 155 U. S. 648, 656.
    The right of a foreign insurance company to make contracts in this state is a franchise. State v. Ackerman, 51 Ohio St. 163, 194 [37 N. E. Rep. 828 ; 24 L. R. A. 298]; Spelling Extraordinary Relief, Secs. 1807, 1808.
    As containing matters of importance and of interest to be read in connection with the foregoing citations and argument, we cite the following authorities: St. Clair v. Cox, 106 U. S. 350 [1 S. Ct. Rep. 354]; 6 Thompson Corporations, Secs. 7884, 7886, 7887, 7898, 7870, 7996, 7998; Marine Ins. Co. v. Railway Co., 41 Fed. Rep. 643; Farrior v. Security Co., 7 So. Rep. 200 [88 Ala. 275, 280; 12 L. R. A. 856] ; Clay Fire & M. Ins. Co. v. Manufacturing Co., 31 Mich. 346.

      Why insurance companies are required to furnish the statements provided by statute. State v. Insurance Co., 50 Ohio St. 252, 259 [33 N.E. Rep. 1056].
    How can he tell (/. e. the insurance superintendent) whether an old charter company is or is not exercising its franchises and violating its charter, if no statement is required to be made and no examination by him permitted. Chicago Life Ins. Co. v. Needles, 113 U. S. 574 [5 S. Ct. Rep. 681].
    That quo warranto is a proper proceeding in a case of this kind is demonstrated inState v. Ackerman, 51 Ohio St. 163 [37 N. E. Rep. 828; 24 L. R. A. 298],
    H. P. Williamson, for defendant, cited:
    Insurance is a contract whereby the insurer becomes bound for a definite consideration to indemnify the insured against loss or damage to a certain property named in the policy by reason of certain perils to which it may be exposed. Dover Glass Works Co. v. Insurance Co., 29 Atl. Rep. 1039 [1 Del. Rep. 32].
    Foreign corporations, artificial beings, the product of a law not our own, have no constitutional right to pass their own borders and come into ours. The federal constitution has neither granted nor secured any such right. We may exclude absolutely, and in that power is involved the right to admit upon such conditions as we please. People v. Fire Assn., 92 N. Y. Rep. 311 [44 Am. Rep. 380].
    Corporations are residents of the state under the laws of which they were created, and they cannot by engaging in business in another state acquire a residence there. Fales v. Railway Co., 32 Fed. Rep. 673.
    There is certainly no public policy which is contravened by permitting corporations such as the plaintiff here to do business in the state, because the state expressely authorizes them to do so upon compliance with its requirements. The evident purpose of these requirements of the statutes are to protect parties, dealing with foreign corporations, from imposition and to secure convenient means of obtaining jurisdiction in the local courts of the state and information such as will facilitate the service of process upon such corporations. Toledo Tie & Lumber Co. v. Thomas, 11 S. E- Rep. 37 [33 W. Va. 566; 25 Am. St. Rep. 925],
    There must be a doing of some of the works or the exercise of some of the functions for which the corporation was created. Beard v. Publishing Co., 71 Ala. 60.
    A foreign company holding its meetings for convenience in Pennsyh vania at which subscriptions to stock were made and are sued upon -in Pennsylvania, but which is engaged in the business of building a pavilion in New Jersey, is not doing business in Pennsylvania. Wildwood Pavilion Co. v. Hamilton, 15 Pa. Sup. Ct. 389.
    Where conditions are required to be complied with before a foreign insurance company shall do business in this state (Minn.), the business referred to is its ordinary business of insurance. Sullivan v. Sheehan, 89 Fed: Rep. 247.
    The law requiring foreign insurance companies to comply with the terms imposed as a condition of doing business in this state relates to the business of insurance companies as such and does not prohibit a company which has not complied therewith from loaning money on mortgage within the state and prosecuting proper proceedings for the collection thereof. Smith v. Iron Hall, 77 111. App. 469.
    A foreign mining corporation which has not engaged in mining in the state, but which owns land and rents the same, is not engaged in the business for which it was incorporated, within the state. Missouri Coal & Mining Co. v. Ladd, 61 S. W. Rep. 191 [160 Mo. 435].
    A contract of insurance on property in the state with a foreign insurance company, irrespective of where made, is an attempt to do business within the meaning of the statute. Commonwealth Mut. Fire Ins. Co. v. Sharpless, 12 Pa. Sup. Ct. 333; Swing v. Munson, 43 Atl. Rep. 342 [191 Pa. St. 582; 71 Am. St. Rep. 772],
   SUMMERS, J.

The averments of the petition, filed.May 16, 1902, are as follows:

“The relator is the duly elected, qualified and acting attorney-general of the state of Ohio. Said relator avers that Ihe defendant, The Amazon Insurance Company, is a corporation organized under the laws of the state of West Virginia; that said company is so incorporated as a stock company for the purpose of making insurance upon houses, buildings and all other kinds of property against loss or damage by fire or lightning; that said defendant corporation has exercised franchises, privileges and rights in this state in contravention of law, and especially in the following particulars, to-wit:
“1. Said defendant company has located and now has its principal office or place of business in the city of Lima, Ohio, and is now and for a long time past has been transacting its said business of insurance within this state.
“2. Said defendant has not procured from the superintendent of insurance oi this state a certificate of authority as required by Sec. '3656 Rev. Stat. of Ohio.
“3. Said defendant is not possessed of the amount of actual capital required of similar companies organized under the provisions of the laws of Ohio.
“4. Said defendant company has not filed with the superintendent of insurance of this state, a certified copy of its charter, nor has it filed a statement under the oath of its president, vice-president or other chief officer and the secretary of the company, stating the name of the company, the place where it is located, and the amount of its capital with a detailed statement of the lacts and items required from the companies organized under the laws oi this state by Secs. 3653 and 3654 Rev. Stat.
“5. Said delendant company has not complied with any. of the laws ol the state of Ohio, regulating and applying to companies organized under the laws of other states, and transacting the business of insurance in this state. ”

Wherefore the attorney-general prays that said company may be ousted from transacting such business within this state.

For amended answer, the defendant says:

“That it has never done nor attempted to do any business in the state of Ohio; that it has never solicited nor attempted to solicit any business of any kind or nature in the state of Ohio, and that it is not engaged in business in said state; that it denies the allegation first made in plaintiff's petition, to-wit, ‘That it is now and has been for a long time past transacting its said business of insurance within this state.’
“Delendant admits each and every other allegation contained in plaintiff’s petition.”

A special master was appointed to take the testimony and to report the same, together with his findings of fact and conclusions of law thereupon.

Among his findings of fact are the following:

“2. That the defendant has appointed a statutory attorney to comply with the laws ol West Virginia, and some of the records showing corporate capacity of the company are kept at Charleston, West Virginia; but that the defendant company for the purpose of transacting all business contemplated by its charter has, since its organización, been located at Lima, Ohio, and now has its principal office or place of business in the city of Lima, Ohio.
“7. That the defendant company in conducting its business is managed and controlled entirely by the secretary of the company who resides at Lima, Ohio; that this secretary receives all premiums, disburses all the money of the company, keeps all the accounts of the company, and pays all the losses of the company at Lima, Ohio.
“8. That the total number of policies issued by the defendant company is lour hundred and ninety-seven, ninety-nine of which have been issued by the secretary direct from the office of the defendant company at the city oi Lima, Ohio, and three-hundred and ninety-eight of which have been issued from brokers, to whom blank policies were delivered by the secretary trom the Lima office of the defendant company ; and the average amount of each policy issued is a risk for the sum of $300.
“10. That the defendant company never issued any policies on property of any kind situate within the state of Ohio; but its secretary in charge of its office at Lima, Ohio, received applications by mail for insurance, had authority to accept or reject the same, and in iact did accept a 1 arge number of such applications, collect the premium therelor, and deposit the policy addressed to the applicant in the post-office in the city of Lima, Ohio.”

The special master concluded as a matter of law that the defendant was engaged in the transaction of the business of insurance contrary •."*» law. The defendant excepts to each of the master’s conclusions of law, but to none of his findings of fact. ■

Section 289 Rev. Stat., as amended May 12, 1902, 95 O. L. 553, provides that it shall be unlawful for any corporation, “whether organized in -this state or elsewhere, either directly or indirectly, to engage in the business of insurance, or to enter into any contracts substantially amounting to insurance, or in any manner to aid therein, in this state, * * * unless the same is expressly authorized by the statutes of this state, and such statutes and all laws regulating the same and applicable thereto have been complied with.”

Section 3656 Rev. Stat., provides that no insurance company, other than life, organized under the laws of any other state, shall “do any such business in this state, until it procures from the superintendent a certificate of authority so to do; nor shall any person or corporation act as agent in this state for any such company, directly or indirectly, either in procuring applications for insurance, taking risks or in any manner transacting the business of insurance, until it procures from the superintendent a license so to do.”

The contention by counsel for the defendant is, that these statutes were enacted for the protection of citizens of Ohio only, and that inasmuch as it has not entered into a contract of insurance with any citizen of this state, nor into any contract of insurance respecting any property in this state, it has not, within the provisions of the statute, transacted any business of insurance within the state.

The following citations are made in support of this contention:

In the case of Commonwealth v. Long, 1 Pa. Co. Ct. 190, McPheisoh, J., says:

“The test” of doing business “is, whether the acts done were a part oi the necessary work ior effecting the object for which the association was created.”

And in case of Beard v. Publishing Co., 71 Ala. 60:

“There must be a doing of some of the works or the exercise of some of the functions for which the corporation was created.”

A foreign company holding its meetings for convenience in Pennsylvania, at which subscriptions to stock were made and are sued upon in Pennsylvania, but which is engaged in the business of building a pavilion in New Jersey, is not doing business in Pennsylvania. Pavilion Co. v. Hamilton, 15 Pa. Supr. Ct. 389.

“The Minnesota statute * * * providing for the conditions upon which foreign building and loan associations may transact business in this state and prohibiting under penalties the transaction of business by such foreign corporations unless those conditions have been complied with, I think necessarily refers to the ordinary business of such associations. The same rule applies to any foreign insurance company where similar conditions are required to be complied with before it shall do business in this state, and the business referred to is its ordinary business of insurance. * * * The prohibition of the statute is only against transacting their ordinary peculiar business in this state so long as the statutory conditions are not complied with.” Sullivan v. Sheehan, 89 Fed. Rep. 247, 249.

The law requiring foreign insurance companies to comply with the terms imposed as a condition of doing business in this state relates to the business of insurance companies as such, and does not prohibit a company which has not complied therewith from loaning money on mortgage within the state and prosecuting proper proceedings for the collection thereof. Smith v. Iron Hall, 77 Ill. App. 469.

A foreign mining corporation which has not engaged in mining in the state but which owns land and rents the same is not engaged in the business ior which it was incorporated within the state. Missouri Coal & Min. Co. v. Ladd, 61 S. W. Rep. 191 [160 Mo. 435],

These cases need not be further noticed, for none of them, so far as appears from the statement of counsel, militates against the conclusion we reach.

The contention of counsel ior the defendant ;s not sound. The fair name of the state and the good of the people of the state may be injuriously affected by the manner of transacting insurance business here, although transacted solely with non-residents of the state and wholly respecting property located outside the state.

The lottery could not escape upon such ground. Our criminal laws are enacted in the exercise of the same power that energizes laws regulating the business of insurance, and acts in violation ot the criminal laws are not excusable on the ground that the victims are nonresidents of the state. "

In State v. Ackerman, 51 Ohio St. 163, 193 [37 N. E. Rep. 828], Williams, J., speaking of the statutory provision pertaining to foreign insurance companies, says:

“They are reasonable and just, and were adopted for the laudable purpose of protecting the public against imposition by unreliable and untrustworthy companies and associations.”

Some of the statutory regulations apply only to insurance on property in this state. Section 8643a Rev. Stat. But with few exceptions they are general, and apply to the transaction here of the business of insurance, and Sec. 3641 Rev. Stat. provides that:

“A company organized under this chapter may insure houses, buildings and all other kinds of property against loss or damage by fire and lightning and tornadoes, in and out of the state, and make all kinds of insurance on goods, merchandise and other property in the course of transportation, whether on land or water, or on any vessel or boat wherever the same may be. ”

Such a company would be transacting business of insurance in this state if it did not insure any property located in the state, but in this state entered into contracts of insurance on property outside the state, and so does a company organized under the laws of any other state.

In none of the cases we have examined is a rule laid down for determining what is transacting business in the state. Many of them determine that the doing of particular things is not the transaction of insurance business, but the reasoning in each is upon the assumption that such business is done in the state where the contract is made. Hyde v. Goodnow, 3 N. Y. (3 Comst.) 266; Western v. Insurance Co., 12 N. Y. (2 Kern.) 258; Columbia Fire Ins. Co. v. Kimyon, 37 N. J. Law 33; Franklin Ins. Co. v. Packet Co., 72 Ky. (9 Bush) 590.

In some states it is held that the issuing of a policy of insurance on property within the state is transacting business of insurance in the state where the property is, irrespective of the place where the contract is made and the policy delivered.

Swing v. Munson, 43 Atl. Rep. 342 [191 Pa. St. 582; 71 Am. St. Rep. 772]; Rose v. Kimberly, 62 N. W. Rep. 526 [89 Wis. 545; 27 L. R. A. 556; 46 Am. St. Rep. 855]; but it may be doubted whether a state can make it unlawful merely to effect insurance on property in the state, the contract being made with a foreign company and made and to be performed in another state. Allgeyer v. Louisiana, 165 U. S. 578 [17 Sup. Ct. Rep. 427]. So that it is possible for the defendant company to insure property iu a state without transacting the busi'--\ss of insurance there, and if the contention of its counsel is sound that such business transacted here is not insurance business, then it is transacting the business, but not at any place.

The business of insurance is, principally, contracting. Strictly speaking, it is not insuring property. No precautions need be taken to secure or preserve the thing said to be insured.

The business is contracting with a party to indemnify him in case of loss of a particular thing, the contract is a personal contract of indemnity, and is not incidental to or transferable with the thing insured. May Insurance, Sec. 6; Carpenter v. Insurance Co., 41 U. S. (16 Pet.) 495; Clay F. & M. Ins. Co. v. Manufacturing Co., 31 Mich. 345.

It appears from the evidence and also from the findings that the defendant company enters into contracts of insurance in this state, all of its contracts are Ohio contracts and are valid here, and the company may, because they are Ohio contracts and because of the comity shown her, enforce them in the courts of every other state, the policy of whose laws is not contravened by the contract.

The facts of this case very clearly disclose the importance of regulating the manner of doing such business in this state, regardless of the situs of the property. It appears from the evidence that the defendant company was incorporated in May, 1901, under the laws of West Virginia, for the purpose of doing a fire insurance business. Its authorized capital is $1U0,000, but, less than $3,000 has been paid in. It has an attorney in West Virginia, in order to comply with the laws of that state, but no 'office. The office of the company since its organization has been at Lima, and there, so testifies its secretary, he has transacted in its name the ordinary business of fire insurance except only that no property situate in Ohio has been insured. Himself and company are the general agents for the United States for thé insurance company and he testifies that the company is a fiction. He receives all premiums and deposits them to his own credit, the company keeping no bank account, and if any losses have been paid he has paid them. The company has issued 497 policies, ninety-seven of which have been issued direct from the office of Lima by the secretary, and the average amount covered by each policy is $300. The secretary testifies that he has received about $3,000, and that he has paid it all out, so that it all of these policies aie still outstanding there is a liability of $150,000 and no assets.

It is ruled in State v. Ackerman, supra, that an insurance company carrying on its business here without obtaining permission so to‘ do is unlawfully exercising a franchise and may be ousted, and it is so ordered.


text:
    EQUITY — CANCELLATION OF DEED — MENTAL CAPACITY — UNDUE INFLUENCE.
    [Morrow (5th) Circuit Court,
    June Term, 1902.]
    Douglass, Voorhees and Donahue, JJ.
    Emma Kime v. John Addlesperger and Mary Ellen Addlesperger.
    I. Deed Given Upon Consideration op Life Support op Grantor and Support op Grantor’s Daughter and Payment op Debts op Grantor is Upon a Valuable Consideration.
    A deed executed and delivered by a father to a son in consideration that the son will care for his iather, furnish him the necessaries of life, and all that his condition required, and also furnish a home and the necessaries of life for his daughter, M, who was living with her father, and pay all the debts then owing by the father, is a conveyance upon a valuable consideration.
    S. Facts Constituting Sufficient Mental Capacity to Execute Deed.
    In the absence of fraud or undue influence, mere weakness of intellect, resulting from old age or sickness, is no ground for setting aside an executed contract, The measure of mental capacity in such case is, that the contracting party be capable of comprehending the condition of his property, bis relations to those who are the natural objects of bis bounty, and to reasonably understand the nature and effect of what he is doing.
    J. Rule as to Burden op Proof in Such Case.
    Where the act of making the deed is in itself reasonable and proper and furnished no intrinsic evidence of mental incapacity, the burden is on the party assailing the act to show the incapacity of the grantor at the time the deed was made.
    4. Same — The Rule as to Burden op Proof is not Changed in Case op Parent and Child, When.
    The fact that one of the parties to the deed or contract is old, and the father of and living with the grantee, does not raise a presumption of inequality between them, as to impose upon the latter the burden of proving affirmatively that no fraud was practiced, or undue influence used, and that all was fair, open, voluntary and well understood. While these relations are, as matter of fact, consistent with weakness and confidence on the one side, and strength and undue influence on the other, this is not necessarily presumable from the relations themselves, and fraud'and undue influence must be shown in order to cast the burden of proof upon the grantee.
    Heard on Appeal.
    F. O. Levering and W. D. Mathews, for plaintiff, cited:
    Parental or quasi parental relation will raise the presumption of fraud or undue influence. Nor does this presumption cease when child becomes of age, but continues until there is a complete emancipation. See Clark Contracts, 366, 367; Berkmeyer v. Kellerman, 32 Ohio St. 239, 250, 254 [30 Am. Rep. 577].
    That the term parental relations extend to all cases in which one member of a family from age, character or circumstances, exercise a substantial preponderance of authority in the family councils. Clark Contracts 367.
    The same influence of child over an aged and feeble parent is presumed to exist, or may exist, of parent over child. 2 Beach Contracts 1824.
    That in order to establish this alleged fact, a fair preponderance’ of evidence is all that the plaintiff is required to produce. / ,
    And not as in criminal cases, in order to convict a person of crime that the evidence must satisfy the mind of the jurors beyond a reasonable doubt, and in such cases the burden of proof shifts to the defendant. Davis v. Bartlett, 12 Ohio St. 534, 546 [80 Am. Dec. 375] ; Kelch v. State, 55 Ohio St. 146 [45 N. E. Rep. 6 ; 39 E. R. A. 737 ; 60 Am. St. Rep. 680],
    Duty cast upon the grantee of showing, affirmatively, that the grantor clearly understood the nature and effect of the transaction, and voluntarily executed the instrument. Baugh v. Buckles, 1 Circ. Dec. 607 (2 R. 498); Tracy v. Sacket, 1 Ohio St. 54, 55 [59 Am. Dec. 610] ; Cowee v. Cornell, 75 N. Y. 91, 99 [31 Am. Rep. 428] ; 2 Pomeroy Eq Jurisp. 943.
    As to undue influence where confidential relations exist. 1 Story Eq. Jurisp. 314, n.
    And the burden shifts to the grantee to show that all was fair, etc. Deeds of insane persons are absolutely void. 2 Beach Contracts, Sec. 1390.
    An advancement to husband and wife jointly cannot be charged against the wife in severalty, unless it is shown that she knew intention of the- ancestor, and acquiesced therein. Boyer v. Boyer, 7 Dec. 525 (7N. P. 153); See Digest Circuit Dec. 14; Needles v. Needles, 7 Ohio St. 432 [70 Am. Dec. 485] ; Staynér v. Bower, 42 Ohio St. 314; Dittoe v. Cluney, 22 Ohio St. 436.
    L. K. Powell and J. W. Barry, for defendant, cited :
    Consideration other than that mentioned in the deed may be shown by parol. Jamison v. McNally, 21 Ohio St. 295.
    Undue influence is an issuable fact and must be proved by the party alleging same, except where they are not on an equality, when the burden shifts to the party receiving an advantage from the transaction. For cases on this subject see Robinson v. Allbee, 4 Circ. Dec. 185 (12 R. 663) ; Pepple v. Pepple, 7 Circ. Dec. 102 (13 R. 43); Keck v. Sayre, 4 Dec. 195 (3 N. P. 45); Baugh v. Buckles, 1 Circ. Dec. 607 (2 R. 498) ; Tracey v. Sacket, 1 Ohio St. 54 [59 Am. Dec. 610]; Hardy v. Van Harlingen, 7 Ohio St. 209, 216; Berkmeyer v. Kellerman, 32 Ohio St. 239 [30 Am. Rep. 577] ; Vanzant v. Davies, 6 Ohio St. 52; Christmas v. Spink, 15 Ohio St. 600; Brice v. Myers, 5 Ohio 121; Corbit v. Corbit, 7 Re. 692 (4 Bull. 1006).
    Gifts to son-in-law intended as an advancement to the daughter will be so charged. Dittoe v. Cluney, 22 Ohio St. 436.
    The value of the life estate of William Addlesperger calculated at seventy-eight years of age, according to the American experience table of mortality, in said lands was $838.80. The value of the life estate of Mary Hilen at fifty years was $2,095.20. The debts to be paid estimate $500, making a total of $3,434, as consideration paid by John Addlesperger for said land. Kinkead Probate Haw & Practice 492.
   VOORHEES, J.

This action comes into this court on appeal; and the object of the plaintiff’s suit is to set aside a deed that was made by one William Addlesperger to his son, the defendant, in 1898.

The grounds on which it is sought to set aside the deed are:

First. That the grantor, at the time the deed was made, in December, 1898, was not of sound mind, or had not mental capacity sufficient to make a contract.

Second. That by reason of his age, infirmity of body and mind, he was easily influenced, and the defendant, taking advantage of his physical and mental condition, induced him to make the deed to him, without consideration, and as a fraud upon the grantor and those who were the proper objects of his bounty.

The contention of the plaintiff is, that by making this deed, the old gentleman had deprived himself of his property, and the son who received it (they living together in the same family) exercised such influence over his father that it was undue influence and fraud, and undue influence would be presumed, from the relation they sustained to each other. And ío more concisely state the issue, the plaintiff claims the grantor, at the time the deed was made, was not ol sufficient mind to make a contract, and that the deed and contract were not his free act, but was the result of undue influence exercised over him by his son, who was the grantee named in the deed.

The defendant denies that his father was not ol sound mind and memory, but on the contrary, that he was at the time the deed was made, able to and did comprehend the business in which he was engaged; that it was his free act and deed, voluntarily entered into, and the grantor, by making this arrangement, secured to himself what would be an adequate and fair consideration for the premises conveyed.

Taking up the case in this order: The first inquiry is, was the old gentleman, at the time this deed was made, capable mentally to make a contract ? A good deal of evidence has been introduced by the respective parties, bearing upon this issue. In addition to the testimony that has been introduced, it is necessary to look at the circumstances surrounding the parties at the time the deed was made, for the reason that the circumstances and the purpose lor which the contract was entered into throw light upon the transaction as to whether it is reasonable or otherwise; and the situation of the parties at the time the contract was executed is important and bear upon the question involved. as to mental capacity.

Briefly referring to the situation of these parties: Some years before this transaction occurred, the old gentleman’s wife had died, leaving him alone, excepting for a daughter who was, it seems from the proof, while physically well and able to take care of herself, mentally she was not up to the average; and therefore the father was concerned as to her welfare, and had reason to provide for her future in any disposition thalt he might make of his property . After his wife died, the plaintiff, who had been married perhaps about a year, went with her husband to live in the home of her father; they lived there some twelve years, during which time the plaintiff’s husband managed and had charge of the farm upon which the old gentleman lived, and which is the same property that is here in controversy. During the series of years that the plaintiff and her husband lived with the old gentleman, there were changes made in their arrangements and contract as to the occupancy of the premises; the last change that was made, it was agreed that Mr. Kime was to pay the old gentleman fifty dollars a year as rent. In the year 1898, by reason of the failing health of Mrs. Kime, the plaintiff, they were unable to longer continue to live under the arrangement that had been made theretofore, and she became unable to longer take care of her father and render him the assistance necessary for his comfort.

It does not appear from the evidence that there was any trouble between the father and daughter, but by reason of her physical inability to longer discharge the duties they had assumed, they voluntarily left the place.

The old gentleman was unwilling, or at least did not wish that his daughter should leave, but desired they should remain on the place and discharge the duties they had assumed. When they were about to leave, and before they did so, the old gentleman and Mr. Kime went to the defendant, a brother of plaintiff who was living at that time some fourteen miles away from where the old gentleman resided, and their mission was to see if he would move upon the farm and fake charge of his father and farm the place. If such arrangements could not be effected with the son, the defendant, the old gentleman had in mind and intended to select some stranger to live with him and manage the farm. But when his wishes were made known to the defendant, he promptly and willingly said he would move on the farm, live with his father and take care of him, all of which he did.

To this time, and up to this point in the history of the case, there is no evidence that the defendant ever sought this position. It was not a position that he was seeking; he had no object or purpose in moving on the place whereby he could secure influence over his father, but when he found his sister and brother-in-law were about to leave he was willing to go and assume the obligations of looking after the wants of his father and manage the farm rather than have a stranger do so.

Soon after defendant had moved with his family on the farm the old gentleman called his attention to the condition of the farm; that it needed repairs and there would have to be some expenditure of money on the farm, in order that it be useful and serve the purpose for which he desired, namely, to secure for himself a comfortable home, care and support. ,

The old gentleman wanted defendant to make the needed repairs; the defendant informed him that he would not, as he didn’t desire to put his money into the farm unless it was secured in some way. The old gentleman then proposed he would make him a deed, provided the defendant would enter into a contract with him agreeing to take care of his father, furnish him the necessaries of life, and all that his condition required; and furnish a home and the necessaries of life for his daughter, Mary Ellen, who was living with her father, and pay all the debts then cwing by the old gentleman.

The proposal made was accepted by defendant, and in consideration thereof the deed in question was executed and delivered, and the defendant executed a writing which is equivalent to a life estate in this property in favor of the father as long as he lived, and also in favor of the daughter, Mary Ellen, as long as she lives.

Some discussion occurred between the father and the son, as to who should do this business or get up the necessary papers. The old gentleman selected a friend, an acquaintance that he had, who lived some distance from his home; but at the time the papers were to be executed the weather was unfavorable, and a suggestion was made by the defendant that another friend and acquaintance of his father, who lived more convenient than the first, might be secured if satisfactory to his father. The other person suggested was a justice of the peace by the name of Van Buskirk, who was accordingly selected. He was sent for, the defendant going for him; a circumstance that may be considered in cases of this character; where a beneficiary of a conveyance is instrumental or an active agent in bringing it about, is a circumstance that may be properly noticed in connection with the whole transaction. Mr. Van Buskirk, the justice of the peace, went to the old gentleman’s home, prepared a deed and lease; and they are executed bel ore him as such officer. There is a circumstance that occurred between the officer and the old gentleman I will call particular notice to as bearing upon the two questions: First, as to capacity of the ol^ gentleman, and also upon the question of undue influence, or free agency of the old gentleman in making the deed.

After the papers were prepared the old gentleman had a private conversation with Mr. Van Buskirk, which shows what was in his mind at that time. After he had executed the deed he said to the justice that he was not certain that he had done just right by Emma, his daughter, but expressed no desire to change what he had done.

This is briefly the history of the transaction that preceded and immediately followed the making of the deed. The question is whether or not, at the time the deed was made, had the old gentleman capacity to comprehend his situation and the business in which he was engaged. It would seem from the circumstances referred to that he unquestionably had in mind the objects of his bounty.

He also had in mind and contemplated the effect that the deed and lease would have upon himself, as well as the objects of his bounty, and he knew the condition of his property ; and the testimony shows he secured for himself care and attention during the remainder of his life, the contract, or life lease to himselt, and the support of his daughter Mary, and he had also in mind his other daughter Emma, the plaintiff, when he said he did not know whether he had done just right by her.

These are circumstances and elements tending to show capacity to make a will; and while we cannot take any one case and say it furnishes a distinct and clear rule, as each case must largely depend upon its own surroundings and circumstances, yet there are some general principles that apply and are applicable to all cases of this character, and among them is the rule, that the degree of mental capacity to make a contract or will is that, one who is capable ot comprehending the condition of his property, and his relations to those who are the natural objects of his bounty, and is able to collect and retain in mind, without prompting, the elements of his business, possesses capacity to make a testamentary disposition of his property.

It is not expected that men, when they become advanced in years, retain the same mental powers that they possessed when young; that cannot be expected, and the law does not contemplate such conditions; if that were required, it would be impossible ior a large proportion of men to dispose of their properly in the latter part of their lives when such dispositions are usually made. A person’s memory may be impaired, his body weak and teeble; he may not be able to labor, or do business as when young; he may ask foolish questions, repeat questions and conversations, and, in the language of some of the books, he may not be always able to recognize his neighbors and friends; yet that does not determine whether he has capacity to transact ordinary business, or such business as we have here under consideration. And we further recognize the rule, that to make a contract requires more ability than to make a will, for the reason, in a contract there are two parties and their interests are antagonistic; hence the rule is that it requires more capacity to make a contract than a will. Yet, there is another principle not to be overlooked, and that is, that a deed, often, is, in a sense, testamentary in its nature, and when such is the case the act is to be tested by the degree of capacity required to make a will. We think in this case the deed is of a testamentary nature.

The old gentleman, at the time he made this deed, had reached a point in life that it was necessary for him to make some disposition or change as to his property; that is, his property must lurnishhim support, and he needed some one to take charge and care for him, and his property must be the means for furnishing support, care and attention. The favored daughter, the plaintiff, was the one, no doubt, he desired should live with him during the remainder of his lile, but she was unable to discharge that duty, and left him alone, and he had to look elsewhere for some one who was able and willing to discharge that duty.

Coming more directly to the question of his mental capacity, and believing the rule does not require that high degree of capacity that a man’s memory must be just as perfect as it ever was, or that his physical ability as good as it was in former years; but that he may be enfeebled in mind and body so that he will not be able to fully, at all times, comprehend his situation or surroundings, and at times forget his neighbors and lriends, those witJb. whom he was well acquainted in former years; nevertheless when it comes to a question ol capacity to dispose of his property, a subject upon which he may have reflected much when in full vigor of mind and body, these failures of memory and infirmities of age are not sufficient to overcome the principle that he has a right to dispose of his property, if he is competent and able to comprehend his situation, the purposes and objects of the business in which he is engaged and recognizes and knows the objects of his bounty, and the condition of his property.

If this is a correct test of capacity we think there is no evidence whatever in this case to show that this old gentleman, when this deed was made, had reached a condition of mental weakness that incapacitated him from making th,e disposition of his property that he did make to his son, the defendant.

Second. Was there undue influence? ks a general rule fraud and undue influence must be proved by him who alleges them, but they may, in certain cases, be inferred from circumstances, as in the execution of a deed, where the grantdr was partially incapacitated by mental infirmity, or was subject to the controlling influence of the grantee, if it appears that the deed was without valuable consideration, or that the grantee acquired an undue advantage by its execution. Under such circumstances the burden is upon the grantee to show affirmatively that the grantor clearly understood the nature and effect of the transaction, and voluntarily executed the instrument.

The evidence in this case fails to show any of these conditions or circumstances, unless it be that the grantor, William Addlesperger, at the time he made the deed in question was mentally and physically infirm; and from the relation between the grantor and grantee, that of father and son, the burden is cast upon the defendant, the grantee, to show that the grantor clearly understood the nature and effect ol the transaction, and that he voluntarily executed the deed.

Whenever the relation between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side Irom superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, then the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood. This doctrine is well settled, but there is often great difficulty in applying it to particular cases.

The law presumes in the case of guardian and ward, trustee and cestui que trust, attorney and client, and perhaps physician and patient, from the relation of the parties itself, that their situation is unequal and of the character defined; and that relation appearing itself throws the burden upon the trustee, guardian or attorney of showing the fairness of his dealings. But while the doctrine is without doubt to be extended in many other relations of trust, confidence or inequality, the trust and confidence or the superiority on one side and weakness on the other, must be proved in each of these cases/ the law does not presume them from the fact that one party is father and old, and the other a son and young. The question as to parties so situated is a question of fact dependent upon the circumstances in each case. There is no presumption of inequality either way from the relationship shown in this case.

It cannot be said that from the fact the defendant lived on the farm with his father under the contract of life lease, and cared for him, paid his debts, furnished support for the daughter Mary Ellen, as provided for in the lease, or at the time the defendant went to live with his father, that the father needed some one to take charge of ,,his farm, and care and provide for himself and his said daughter, or that at the time he was old, forgetful, and in conversations would dwell on events of his early life and did not engage actively in any business, and, on the other hand, the defendant, his son, lived in the same house, going there at the solicitation of his father and the son-in law, Kime, taken separately or together raise a conclusive presumption of law that their situation was unequal and fiduciary. These relations, as matter of fact, may have led to or been consistent with controlling influence on the part of the son or weakness and confidence on the part of the father, but this was to be shown, and is not necessarily presumed from the relations themselves, as in the case of trustee, guardian or attorney.

There is not a particle of evidence that the old gentleman, after this deed was made, ever complained about it, or that the defendant did not faithfully perform the contract on his part. There was no secrecy about the execution of the deed; it was placed on record without delay; no effort to conceal the transaction from the plaintiff or any one interested in the grantor or his estate.

We find as a fact that there was no undue influence used by the defendant to procure the deed, and the execution thereof was the free and voluntary act of the grantor. It was contended that there was not a sufficient consideration for the lan I conveyed, and, therefore, the deed is fraudulent and should be set aside. The fact that the deed was made to the son of the grantor is a circumstance to be considered in connection with the sufficiency of the consideration. If the old gentleman had mental capacity sufficient to transact ordinary business, and was free from restraint and undue influence, he had a right to make such disposition of his property as he thought proper.

A father has a right to dispose of his estate in any way he may deem best. He is not required to make an equitable distribution of his estate, among even the objects of his bounty. He may, if he choose, exclude his ‘children, or divide his estate among them unequally. The question in all such cases is, was the act the free act of a competent party?

On the other hand, while a son or daughter has no legal demand upon the parent as to how he will distribute his property; yet courts of equity will not vacate a deed obtained by means of influence or importunity unless it has been unduly or improperly exercised. Fair argument and persuasion, or appeal to the conscience or sense of duty ol the grantor, especially by those having claims upon his justice or his bounty, if fairly made, lay no loundation for vacating a deed, although the grantor would not have executed it, but for such appeal, argument or persuasion. Truman v. Lore, 14 Ohio St. 144-156.

The defendant in the case at bar assumed to pay the debts of his father, the amount ot which was uncertain; he was to furnish his father with support, care and attention as long as he lived, and a home and maintenance for his sister Mary so long as she lives. The extent of any one or all of these assumed burdens on the part of defendant was uncertain, and will continue so long as Mary lives, yet the defendant assumed them and secured the faithful performance thereof, by executing an instrument in writing called a life lease to his father and sister, which are a lien upon the farm as much so as if he had executed a mortgage. There is no pretense or claim made by plaintiff that defendant has not faithfully carried out his part of the contract so far as the father was concerned, and the sister, although a party to this action, makes no complaint that he is not doing the same so far as she is concerned.

We think under these circumstances there is not such want of consideration as to be evidence of or raise any presumption of undue influence against the defendant.

This case is clearly distinguishable lrom the cases cited by counsel for plaintiff, not only as to the facts, but as to the application ol the law to the facts.

In the case of Tracey v. Sacket, 1 Ohio St. 54 [59 Am. Dec. 610], the grantee was a stranger to the grantor. He failed ignominiously in carrying out the contract he had entered into with the grantor.

In the case of Allore v. Jewell, 94 U. S. 506, the grantee was a stranger to the grantor. The grantor was an old lady of great mental weakness and the consideration was grossly inadequate.

The case of Corbit v. Corbit, 7 Re. 692 (4 Bull. 1006). The lacts in that case are so materially different fiom the facts in the case at bar it can hardly be considered an authority in this case. The principles of law there announced are correct, and when the facts warrant, their application should be controlling.

We have gone over the main features of this case; and it will be observed we have confined ourselves largely to circumstances, rather than a repetition of the testimony of witnesses, in which there is much conflict. Lawyers know that in cases of this character, and upon such issues conflict in the evidence is naturally expected. Witnesses, non-experts, come in and give their opinions, and it is pretty difficult to arrive at a conclusion that will harmonize with all the evidence, the transaction itself and the circumstances must furnish the rule for the solution of the question. Courts are not expected to make wills or contracts for parties if they have capacity to make them, and are free from undue influence.

When the plaintiff’s father recalled to his mind the fact, whether he had done just what he ought to have done for her, he did not see proper to change his arrangements, therefore the court cannot change it for him. The decree will be for the defendant; the plaintiff’s petition - dismissed.