author: Shields., J.

text:
    INDEPENDENT CANDIDATES AS DISTINGUISHED FROM CANDIDATES OF AN INDEPENDENT PARTY.
    Court of Appeals for Stark County.
    C. S. Westover v. Norman F. Clark.

    Decided, February Term, 1922.

      Elections — Designation of Candidates by Placing .Circles at Head of the Ballots — N.ot Required in Case of Independent Candidates — Jurisdiction of Courts over Action of Election Officials — Estoppel Against a Party ' Seeking to Take Advantage of his own Wrong.

    1. In tbe absence of fraud or mistake committed or objection made by election officers in arranging and determining tbe form of ballot or in furnishing said ballots for use at an election as provided by law, their action in that behalf is not reviewable by the courts.
    2.. 'Candidates for office who have not been put forward by any organized party and are running as independent candidates, as distinguished from party candidates are not entitled to have a circle three-fourths of an inch in diameter, surrounded by the words printed in heavy nonpariel type “For a straight ticket mark within circle,” placed at the head of the column containing their names, and failure to place such a circle and lettering over the names of independent candidates does not render the ballot constructively fraudulent or give a court jurisdiction in the matter.

      Emmons & Emmons, for plaintiff.

      Hart <& Koehler, contra.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 6, 1922.

   Shields., J.

This is a contested election case. The plaintiff in his petition avers that he is an elector of the City of Alliance in said Stark County. That on the 8th day of November, 1921, lie was a candidate on an Independent ticket, having theretofore been duly and legally nominated for the office of Mayor of said city, and that the defendant having theretofore been duly nominated, was a candidate on the Republican ticket for said office of Mayor of said city. That on the 14th day of November, 1921, the Board of Deputy State Supervisors of Elections of said Stark County canvassed said votes and found as a result of said election that said Clark had -received 2,569 votes for said office and that the plaintiff had received 2,460 votes for said office, and declared that said Clark was duly elected to the office of Mayor of said City. .....

He says that said Clark was not duly and legally elected to said office of Mayor at said election and appeals from said declaration of said election upon the following grounds:

- Because the ballots printed and furnished for and used at said election were invalid and not lawful, and not in conformity with the requirements of Sections 5021-5026 and co-related sections of the General Code, in this, that said Independent ticket wholly failed to have a large blank circular space, three-fourths of an inch in diameter, above the list of candidates on said Independent ticket, and wholly failed to have said circle or the space where said circle should have been, surrounded by the following words, printed in heavy faced nonpareil type: "For A Straight Ticket Mark Within Circle,” and thereby wholly failed to give each of the electors a clear opportunity to designate by a cross in said large blank circular space his choice of ticket and desire to vote as contemplated by said section, all of which was in fraud of the rights of the plaintiff as such candidate, whereby the plaintiff was deprived of having a fair, lawful and equal chance with the defendant for said office and whereby the plaintiff was deprived of having a correct count, and that by reason thereof said election was wholly void.

Said petition then recites that notwithstanding said ballots were illegally printed, the plaintiff receivéd a plurality of all the legal votes cast at said election for Mayor of said city and is entitled to receive a certificate of his election thereto from the Board of Deputy State Supervisors of Elections of said Stark County, for the reason that the ballots cast in certain precincts in certain wards in said city (named in said petition) were not properly and lawfully counted, but that in each of said precincts votes were counted for the defendant which should have been counted for the plaintiff, and that as a result of such unlawful count there were approximately 30G ballots cast at said election for Mayor which were not coúnted, tallied or certified. That if all the ballots legally cast for him at-said election had been counted as cast, the plaintiff would have had, and did have, a plurality of all the legal votes cast at said election and would have been declared elected as Mayor of said city.

He asks that an order be issued to said Board of Deputy State Supervisors of Elections, directing it to preserve and produce in court the poll-books and tally sheets returned from each of said voting precincts in said city of Alliance and all the ballots cast at said election, that said ballots be re-opened, counted and the true result of the vote at said election be ascertained, and that the declaration and certification of said Board of Deputy State Supervisors of Elections that said Norman W. Clark was elected mayor of said city of Alliance be set aside, and that the plaintiff, C. S. Westover, be found to be the duly elected mayor of said city. .

.In his answer the defendant admits that at the municipal election held, in the city of Alliance, November 8, 1921, the plaintiff was an Independent candidate and the defendant was the duly nominated and contesting Republican candidate for the office of Mayor of said city of Alliance; that the Board of Deputy State Supervisors of Elections of said county canvassed the .votes east at said election for the office of Mayor of said city and found as a result of said election that the defendant had received 2,569 votes and that the plaintiff had received 2,460 votes as such Independent candidate for said office, and declared that the defendant was duly elected to said office of Mayor of said city and issued to him a certificate of election in due form according to law, and except as in said answer admitted, the defendant denies the allegations in plaintiff’s petition.

In a cross petition the defendant -avers that certain errors and mistakes were made, in the count of the ballots cast at said election (which11 are set-out at length in said cross petition)- and that had all the votes cast for him been properly counted'he would have been entitled, to a larger plurality than 109 votes, and he asks that said ballots be re-counted, that the true result be ascertained and certified, and that said declaration and certification of the election of the defendant to said office of Mayor be affirmed.

■ Acting under the authority granted by Section 5090-1, upon due application made, it appears that the court below issued its order' to the Board of Deputy State Supervisors of Elections to preserve the original poll books and tally sheets and all the original ballots cast by all the voters returned from each of the thirty-two voting precincts of said city until the contest herein should be fully determined.

It likewise appears upon satisfactory evidence shown that said court determined that a recount of the vote east at said election on November 8, 1921, for the office of Mayor of said city was necessary in precincts A and F of the First AVard, in B of the Second AYard, in B, C and G of the Third AYard, and in G, J and K of the Fourth AVard, in said city, and appointed a commission to make said recount in open court, and such recount having been made, and the court having received the report of said commission of said recount, together with other evidence in the ease, found the issues joined in favor of'the defendant, Norman AY. Clark, and that said Norman AY. Clark received 2^693'legal votes at said election for the office of Mayor of the city of Alliance, that the plaintiff, C. S. AVestover, received 2,461 légál votes for said office, and said defendant, Norman AAr. Clark, having received a plurality of the legal votes so cast, was duly elected to said office of Mayor of said city at said election. That said court ordered and adjudged that the petition of the plaintiff be dismissed and that the defendant be declared the duly elected Mayor of said city. A motion for new trial was overruled and a judgment was entered for the defendant in accordance with said finding, from which finding and judgment the plaintiff appeals to this court.

In our analysis of the case, the single and only issuable question in the case is to be found in the plaintiff’s allegation “that sáid Independent ticket wholly failed to' have a large blank circular space, three-fourths of an inch in diameter, above the' list of candidates on said Independent ticket, and wholly failed to have said circle, or the space where said circle should have been, surrounded by the following words, printed in heavy faced nonpareil type: ‘For A Straight Ticket Mark Within .Circle.’ ” And this view was apparently shared by counsel, their sole contention in argument being based on the construction of sections • of the statutes claimed to be applicable to this feature of the case. That the solution of the question raised is determinable by statutory construction is quite evident, for all of our election machinery is of statutory origin and regulated and controlled by statutory legislation. Many of the old forms observed in elections have disappeared and new and other forms have taken their place. The method of nominating candidates has been changed, new boards have been created and almost numberless other changes have been introduced in our voting and election system, all for the purpose of safeguarding the ballot and purifying elections.

Looking to the record, we find that the plaintiff was an Independent candidate for the office of Mayor of the city of Alliance, nominated by petition under favor of Section 4999; that the defendant, Norman W. Clark, was the regularly nominated candidate on the Republican ticket for said office, and that Thomas H. Nichols was the Democratic candidate, for said office, the latter, however, makes no claim to said office and therefore,does not figure in this contest. The plaintiff claims that the defendant Clark was not duly elected to said office, and that said pretended election is null and void because he says the ballots furnished the electors of said city were not as the law prescribes they should have been and were therefore not lawful ballots, and that by reason thereof a fraud was perpetrated upon the plaintiff and upon all the electors in said city, in this, “that . said ballots did not have the circle above the list of names ■ of candidates on the independent ticket so as to give a clear opportunity to each and every voter, intelligent and illiterate alike, to vote a straight ticket.” The record, shows that in addition to the name of the plaintiff, C. S. Westover, on the Independent ticket there was also the name of Raymond A. Wright, a candidate for councilman at large. That the form of the ballot is under the jurisdiction of the officers of the election laws of the state will not be questioned, and that irregularities or mistakes in matters affecting the nomination of candidates for municipal offices is subject to the jurisdiction of the Board of'Deputy State Supervisors of the County, and that its decision shall be final, is provided by Section 5006. While this Section appears to specifically refer to irregularities in nomination papers, it was argued that its terms are sufficiently broad to include any irregularities in the form of the ticket, but in any event the defendant urges that the plaintiff ought not to complain of the form of the ticket because weeks before said election he admitted having caused facsimile ballots to be printed and circulated, all of which charged him with knowledge of the form of the ballot adopted by said Board- of Deputy State Supervisors of Elections of said county, to be voted at said election when he might have made objection thereto, and not having made any such objection, he should not be entitled to base a contest on such irregularity, if it be an irregularity. Allen v. Glynn, 17 Colo., 338; State v. Norris, 37 Neb., 299.

And if the plaintiff made use of such ballot in circulating facsimiles thereof before election, with full knowledge of such alleged irregularity, he should not be heard to complain of its form after the election. In re Contest of South Charleston, 50 Bull., 173.

Ordinarily a person is estopped from taking advantage of his own wrong, and the defendant here pertinently raises the question as to whether the plaintiff, who instead of remonstrating against the alleged irregularity in the form of the prepared ballot, should hazard the outcome of the election, and after being defeated, seek to nullify such election? The plain logic of the proposition seems to furnish the answer. Back of this proposition, as it seems, is the power lodged in the election officers by the legislature to arrange and determine the form of ballots, and to furnish them as provided by statute, and in the absence of fraud or' mistake committed, or objection made, is such action reviewable by the courts? In State v. Ehrman, 30 Bull., 319, it is held that

“The Board of Deputy State Supervisors of Elections cannot be interferred with in matters of detail pertaining to the arrangement and printing of the official ballot.”

In Pugh Printing Company v. Deputy State Supervisors of Elections, 22 C. C., 584, it is laid down that—

“Courts cannot be substituted for the Deputy State Supervisors of Elections. Neither can the courts control the supervisors in the exercise qf their discretion. It is only- when the courts find present some of the equitable grounds of fraüd or mistake, or find the decision or award to be- wrongful, fraudulent, collusive or arbitrary, that they can be set- aside to restrain the conclusion -or determination of such a board.”

And in State, ex rel. Gongwer v. Graves, 90 O. S., 311-318, it is held that the State Supervisor and Deputy State Supervisors have full and final authority in the matters here referred to, reserving to the courts authority to relieve against abuse of discretion or fraud by such officers.

In view of these holdings we think it clearly appears that the action of the Deputy State Supervisors of Elections is not reviewable by the courts, unless, as stated, it be shown that there was an abuse of discretion or fraud. And this leads us up to the real question in controversy here: Did the Board of Deputy State Supervisors of Elections of said county fail to furnish such a ballot to the electors of said city, at said election for Mayor as the statutes prescribe? The plaintiff claims that it did not; the defendant claims it did. The plaintiff alleges ‘ ‘ a constructively fraudulent ballot” was provided ; the defendant alleges it was a lawful ballot. Let us examine the statutes on the subject which must determine the disputed question. As already stated, numerous statutes are enacted regulating the conduct of elections to which our attention has been called by counsel, but the main controversy here seems to hinge upon the construction to be given Sections 5021 and 5026.

Section 5021 is as follows:

“The ballot shall be so printed as to give each elector a clear opportunity to designate by a cross mark in a large blank circular space, three quarters of an inch in diameter, below the device and above the name of the party at the head of the ticket or list of candidates his choice of a party ticket and desire to vote for each and every candidate thereon, and by a cross mark in a blank enclosed space on the left and before the name of each candidate his choice of particular candidates.”

Section 5026 is as follows:

“The heading of each party ticket, including the name of the party, the device above and the large circle between the device and such name shall be separated from the rest of the ticket by a heavy line, and the circle above the name of the party in which the voter is to place the cross mark, if he desires to vote the straight ticket, shall be defined by heavier lines than the lines defining the blank spaces before the names of candidates, and such circle shall be surrounded by the following words, printed in heavy face non-pareil type: ‘For a straight ticket mark within this circle.”

Counsel for defendant say “Mr. Westover was nominated by petition and was certified and was put on the ballot at the head of the Independent ticket,” but the record does not show that any “Independent ticket” was certified to the Board of Deputy State Supexwisors of Elections," or that any such ballot was formulated or provided by said board to be voted at said election for the office of Mayor of said city. True, the xxames of C. S. Westover for Mayor axxd the said candidate for couxxcilman at large were placed xxpon the ticket to be voted for, not however on an “Independent ticket” but as independent candidates for sand respective offices. Although the names of these candidates were on the same ballot, there appears no connection whatever between them as candidates forming an “Independent ticket.”

As we read Section 5021 it applies only to a party having a device, or to some party organization havixig a name. Party in the sense here used implies organization and said Section is clearly intended to extend to axxd ixxclude party organizations, and not individuals as spch. It refers to an association of persons formed for political purposes, and the device authorized by Section 5014 is one selected and adopted by the party in State Convention. The device selected, therefore, is one designating the name of a party and in no sense applies to an individual. Here the plaintiff was a candidate for said office of Mayor, not of a party, but as an independent candidate, as stated, with no political organization or committee back of his candidacy, but the defendant says that said section provides that “the ballot shall be so printed as to give each elector a clear opportunity to designate by a cross mark in a large blank circular space three-quarters of an inch in diameter, below the device and above the name of the party at the head of the ticket or list of candidates his choice of a party ticket, etc.,” and “list of candidates” refers to candidates on any ticket, with or without any party device. The language of the statute is “below the device and above the name of the party at the head of the ticket or list of candidates.” Section 5017 provides that “every ballot shall contain the names of all the candidates whose nominations for any office have been duly made, arranged in tickets or lists under the respective party or political or other designation.” Construing these two sections together (for they are in the same chapter) we think that the word “lists” as used by the legislature in Section 5021 refers to a political party or organization. But whatever its meaning, it is urged upon behalf of the plaintiff, that although an independent candidate, he was entitled to have the circular space at the head of the column in which his name appeared on the ticket that the electors of said city might share the same privilege accorded to the other candidates on the same ticket, in voting a straight ticket by placing a cross in said circle. The mere absence of the circle, we take it, could work no prejudice to the defendant who had no party or party organization or party emblem. Ballots marked either at the top of the ticket or in the square opposite his name, or otherwise indicating the intention of the voter to vote for him, would be properly counted for him as such candidate. In Bambach v. Markley, 9 C. C. (N. S.), 561, it is held that

“Inasmuch-as a single candidate on a nonpartisan ticket has no party emblem and no one else can go on that ticket, the printing on the non-partisan ticket of words indicating various offices to be filled and voted for with a circle above and blocks outside of the column will be regarded as surplusage; and if a voter makes a mark above or below or on the side or /at the top of the column occupied by the name of the non-partisan candidate, his intention to vote for such candidate is clearly indicated and the ballot should be counted.”

As is common knowledge, the judicial ticket voted is nonpartisan, and is not the independent candidate on the same footing with reference to the absence of a circle on the ticket? In the light of the reasoning in the opinion of the court in the case cited, it is just the same. Counsel for the defendant cite us to the case of State of Ohio, ex rel. Goodhue, v. Ehrman, 30 Bull., 319, although a case in mandamus, it involves the same question as made in the case at bar. In the opinion in that ease, Judge Sayler says:

“In the case at Dar the plaintiff has the clear legal right to have the ticket printed on the official ballot; but he avers that the ticket is about t.n be printed according to law and the prayer of the nomination papers, on the official ballot. He complains, however, that the hoard refuses to print the circular space at the top.
“The board has aetermined, on a hearing had, that a proper construction of the statute precludes the printing of the circular space at the head of this ticket, because this ticket is not a party ticket, but is a ticket containing names of independent candidates as designated in Section 8 and that the list of independent candidates is not entitled to the circular space.”

Although a nisi prius case, the principles of law announced therein harmonize with the views entertained by this court as being applicable to the case before us. As already stated, while we think that the action of the Deputy State Supervisors of Elections was conclusive and final in the matter of preparing the form of the ballot in question, still judicial action having been invoked in this case, we are unanimously of tlife opinion that the absence of the circle, surrounded with the words “Por A Straight Ticket Mark Within This Circle” (provided for in Section 5026) on the independent ticket voted for the office of mayor of said city of Alliance held on the 8th day of November, 1921, did not invalidate the ballot containing the name of the plaintiff as a candidate on said ticket, nor was it necessary that said circle and designation appear thereon to give validity to the form of said ballot.'

A judgment may be entered herein in favor of the defendant, Norman W. Clark, as prayed for in his cross petition, confirming the declaration of his election as miayor of the city of Alliance, Ohio, under the election held in said city on November 8, 1921, and the petition of the plaintiff will be dismissed, at his costs.

Houck and Patterson, JJ., concur.


source: Caselaw Access Project

author: Crow, J.

license: Public Domain

text:
    PROSECUTION FOR RAPE.
    Court of Appeals for Crawford County.
    Edward Driscoll v. The State of Ohio.

    Decided, April 21, 1921.

      Criminal Lato — Elements Necessary to a Conviction of Raye — Charge of Court — Section 12413.
    In a prosecution for rape it is reversible error for the court, in its enumeration to the jury of the elements necessary to a conviction, to fail to include the requisite fact that the person upon whom the rape was committed was “a person other than a daughter or sister of the accused, or a female person under twelve years of age.”

      Edward J. Meyers¡ for plaintiff in error.

      Chester A. Meek, for defendant in error

       Affirmed by the Supreme Court, December 13, 1921.

   Crow, J.

This is a proceeding in error to reverse the judgment of the court of common pleas of Crawford county, Ohio, entered on a verdict of guilt of rape.

The indictment charges rape on the body of a person therein named, “then and there being a female person other than the daughter or sister of plaintiff in error, such person being of the age of fourteen years, to-wit, of the age of seventeen years.”

There is evidence tending to prove all the material ingredients of the crime, and the record does not show any concession by the accused of the existence of any of said elements.

1. The first assignment of error is that the verdict is not supported by sufficient evidence.

The court has carefully read and studied all the testimony, with the result that there is not such unanimity of opinion on this question, as will permit the judgment to be disturbed.

2. Error in the charge submitting the case to the jury'is relied on in two particulars:

(a) In failing to charge that defendant could be convicted of assault and battery.

This feature can be 'at once disposed of on the ground that no request was maae for such an instruction. 88 O. S., 447, syllabus.

(b) In the enumeration of the elements necessary to a conviction, there was omitted the requisite fact that the person upon

^wliom the rape was committed was a person other than the daughter or sister of the accused, or a female person under twelve years of age.

This assignment of error must be sustained for the reason that such fact was of tne substance of the offense charged; that is, it was matter of description. 11 O. S., 328.

Section 12413 of the General Code defines two distinct offenses, one punishable by imprisonment in the penitentiary during life, and the other by imprisonment in the penitentiary not less than three years, or more than twenty years. The indictment in the present case is for the offense punishable as last stated.

The reasoning of the case in 11 O. S., 328, is as valid now as it was when the decision was announced, and in no reported case has the correctness of that decision been questioned.

The trial court enumerated five facts which if found by the jury, would warrant conviction. One essential of the offense charged was omitted, namely; that the subject of the rape was a female person other than the daughter or sister of the accused, or a female person under twelve years of age.

For this omission the judgment must be reversed, the verdict set aside, and the cause remanded for a new trial and further proceedings according to law.”


author: Alleead, J.

text:
    VALIDITY OF ORAL CONTRACT FOR INSURANCE ON AUTOMOBILE AND EFFECTS.
    Court of Appeals for Knox County.
    The Liberty Mutual Insurance Company v. Lewis B. Houck.

    Decided, 1922.

      Insurance Contracted for with Local Aocnt on Automobile and Personal Effects — Different Contract Embodied in Policy when Issued — Loss Occurs before Insured Becomes Aware of the Change — Company Liable on the Original Contract.

    An agreement entered into between an owner and a local or soliciting agent for fire and theft insurance, covering an automobile and personal effects therein, is a conlract in praesenti and becomes effective immediately. An attempt by the insurance company in issuing the policy to ratify the agent’s contract in part and reiect it in part is without effect.in the absence of consent by the insured, and. without actual notice he is not hound by conditions in the policy inconsistent with the agreement entered into with the agent, nor by limitations in the charter of the insurance company.
    'Allaman, Funkhouser & Muer and L. C. Stillwell, for plaintiff in error.
    F. 0. Levering, attorney for defendant in error.

      Motion to certify record overruled by the Supreme Court May 22, 1922.

   Alleead, J.

The original action was brought by Lewis B. Houck against the Liberty Mutual Insurance Company upon a contract of insurance against loss by fire and theft of his automobile and personal effects therein. The loss by theft of said personal effects from the automobile shortly after the’ insurance contract was made and the value thereof are undisputed. The action was brought to recover $200.00 being the amount insured for personal effects. The plaintiff recovered a judgment in the court of common pleas.

From the undisputed evidence it appears that Judge Houck, plaintiff below, applied to a local insurance agent at Mt. Yernon for fire and' theft insurance upon his Dodge sedan, $1,000 and upon the personal effects therein $200, total $1,200, and that the agent1 assured him that he could place the insurance with the plaintiff in error and agreed to do so. The amount of the premium for said insurance was calculated and agreed upon and the following receipt given:

June 4th, 1920 No.-
“Received of Lewis B. Houck $18.12 Eighteen and 12-100 Dollars for one year premium on auto policy in Liberty Mutual Insurance Company of Dayton, Ohio, $1,000 on car and $200 on personal effects. Fire & Theft Insurance.
Will J. Welsh, Agt.”

Judge Houck authorized the agent to sign for him the application and to leave the policy, when issued, in his office at Mt. Vernon. An application for fire and theft insurance for $1,200 was forwarded by the agent to the Insurance Company. It is not clear from the evidence whether the agent in the application allotted $200 or any other amount to personal effects. The company, upon receipt of the application; issued the policy for $1,000 upon the automobile alone, no amount -being designated for loss of personal effects. Such policy was mailed to the agent at Mt. Vernon and by him deposited in Judge Houck’s office as agreed. Judge Houck had no actual notice or knowledge of the1 terms of the policy issued until after the loss complained of. Counsel for .plaintiff below rest their claim upon the contention that there was a present contract of insurance entered into by plaintiff below and the insurance agent at Mt. Vernon, and the the insurance company was bound thereby. It is well settled that an insurance contract may be entered into by the assured and a duly authorized agent of the .insurer to take effect at once, and that a valid obligation is thereby imposed upon the insurance company. Insurance Company v. Whitman, 75 O. S. 312; Insurance Company v. Kelly, 24 O. S., 345; Machine Company v. Insurance Company, 50 O. S., 549; Eames v. Home Insurance Company, 94 U. S., 621. There is an abundance of authority in this state and elsewhere that a valid insurance contract in praesenti may be made in advance of the issuance of the policy. 14 Ruling Case Law, page 850. The best definition of such, a contract is thus stated by Mr. Justice Bradley in Eames v. Insurance Company and approved in the opinion in Machine Company v. Insurance Company, to-wit:

“It is sufficient if one party proposes to be insured, and the other party agreed to insure, and the subject, the period, the amount, and the rate of insurance is ascertained or understood, and the premium paid if demanded. It will be presumed that they contemplate such form of policy, containing such conditions and limitations as are usual in such cases, or have been used between the parties. This is the sense and reasoning of the thing, and any contrary requirement should be expressly notified to the party to be affected by it.”

We think the undisputed evidence makes it clear that all the essentials of a contract of insurance in praesenii are found in the negotiations and agreement between Judge Houck and the agent of the insurance company. Judge Houck planned to and did leave, the morning following the making of the contract, for an extended automobile trip and the insurance was designed to become operative immediately.

This brings us to the question of the authority of the local agent at Mt. Vernon to bind the company.

Section 9586 G. C., provides:

“A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party, company or association, thereafter issujng a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding.”

This is a statutory declaration of an agent’s authority and cannot be defeated by any limitation imposed by the insurance company. The local agent of the plaintiff in error at Mt. Vernon was a soliciting agent and his authority is measured by the terms 30 O. S., 647; Insurance Company v. Williams, 39 O. S., 584. The purpose of the statute under consideration was to protect parties seeeking insurance and who necessarily are required to deal with local agents and thereby place them upon equal footing with the insurance company and relieve them from secret limitations placed upon the-.agent’s authority. It .is not clear whether the local agent at Mt. Vernon specified in the application the amount of insurance designed to cover personal effects. If tbe agent did not, his failure is not chargeable against the assured. If the local agent at Mt. Vernon properly specified the amount of insurance designed to cover the personal effects then the company had no authority to modify the insurance contract already made by the agent and issue a policy for the amount designed to cover the automobile alone. Such policy could become the insurance contract only by approval and ratification of the assured. This is not claimed. See Fire Insurance Company v. Goldstein, 111, Md. 83.

Whether the insurance company had the right, promptly and before loss, upon notice to the assured, to reject the entire application and cancel the insurance contract, we do not decide.

The insurance company did not attempt to reject the entire application nor cancel the policy. It attempted to ratify so much of the agent’s contract as met its approval and reject the balance.

The insurance company as against the assured was charged with the knowledge of its agent and by affirming the acts of the agent in part it must be held, under the circumstances, to affirm the same in toto. Winpenny v. French, 18 O. S., 469: Rolling Stock Company v. Railroad, 34 O. S., 450.

In the absence of actual notice to the assured he would not be bound to take notice of conditions in the usual form of policy issued by the insurance company inconsistent with the insurance expressly contracted for by the local agent. Nor would the assured, in the absence of actual notice, be bound by the limitations in the charter of the insurance company. No such actual notice on the part of the assured is claimed and the undisputed evidence was that the assured relied upon the agreement and representation of the local agent of the insurance company.

We agree with the trial court that all material facts in this case are undisputed, and that the case resolves itself into a question of law. We are also of opinion that the trial court was right in instructing a verdict upon the undisputed evidence in favor of the.planitiff below.

Judgment affirmed.

Shields and Patterson, JJ., concurring.


author: Ingersoll, J.

text:
    UNLAWFUL POSSESSION OF INTOXICATING LIQUOR.
    Court of Appeals for Cuyahoga County.
    John Ignath v. The State of Ohio.
    Decided, June, 1922.

      Prosecution for Having Intoxicating Liquor in pos'sestsion — Goods ' Seised May be Introduced in Evidence, When — Burden of Proof as to Character of the Premises Raided — Bona Hide Private Residences as Defined by the Miller Law.

    1. - In a prosecution for unlawful possession of intoxicating liquor, it is not error to permit introduction in evidence of the liquor found and seized on defendant’s premises, where no motion or petition was filed for a return of the property to the defendant on the ground of illegal seizure.
    2. The state is not required to allege or prove that the defendant does not come within the proviso or exception of the statute, and in a prosecution for having unlawful possession of intoxicating liquor, it is for the defendant to show that the place where the liquor was found was a bona fide private residence.
    .Error to Justice of the Peace for Euclid Township.

      J M. Kiss, for plaintiff in error.

      L. A. Tucker, for defendant in error.
   Ingersoll, J.

Plaintiff in error was arrested upon a warrant for the violation of Section 6212-15 of the General Code of Ohio, charging him with the unlawful possession of intoxicating liquors thereunder. Trial was had before L. L. Marshall, a justice of the peace for Euclid township, Ohio, on March 27, 1922, wherein the defendant was found guilty and sentence imposed, from which conviction and sentence he prosecutes error in this court.

Upon the trial of the case in the lower court, no evidence whatever was introduced by the defendant, but upon the close of the state’s ease, defendant, after moving for his discharge, rested his case.

The testimony introduced by the state, as appears from an agreed statement of facts filed, herein, discloses that on March 18th, Carl Metta and James Naylor, both of whom were federal prohibition officers, • together with E. E. DeSalm, a constable of Euclid township, by virtue of a search warrant addressed to the constable, made a search of the premises of plaintiff in error located at 4903 Detroit avenue, wherein they found four gallons of whiskey, which witnesses, Metta and Naylor testified, after being properly qualified, was rye whiskey. It further appeared from the testimony of the witness Metta that, the containers holding said liquor bore no revenue stamps, and that in his opinion said rye whiskey was contraband liquor.

Prior to nor during the trial, no motion, application, or- petition for the return of the property seized under the search warrant was made or filed, defendant simply making a formal objection to the introduction of the evidence without specifying the ground of his objection.

Jlpon argument before this court, but two questions were raised:

1. Did the court err in permitting the introduction of the evidence seized under the search warrant?

2. Did the burden of proving that the possession of the liquors seized was lawful or unláwful, rest upon the state or upon the defendant ?

As to the first proposition, it is the law that no application having been made for the return of the property seized prior to the trial of the ease, that the question cannot now be raised in this court, and it was not error for the court to permit its admission in the ease.

This question has arisen and been decided by the courts of appeals in six of the appellate districts of this state; each of them holding that if the defendant wishes to avail himself of his right to object to the introduction of the evidence seized under a search warrant, that he must make a reasonable application for the return of the property in an independent proceeding prior to the trial of the case in which said evidence is to be used.

This question was last before this court in the case of Cor dova v. State, wherein Judge Sullivan, speaking for the court and reviewing the decisions submitted upon this question, held that such procedure was required.

Prior to that, in the case of Hendershot v. State, this court, speaking through Judge Vickery, in an opinion dated March 19, 1921, said as follows:

“We would not notice that in this ease if it were not for the statement of the court below that he was going to hold in that way until the court of appeals held otherwise, because the record nowhere shows that a motion was made or the proper proceedings taken to get this property from the officers’ possession. In order to avail one’s self of this right to object to the use of the testimony thus obtained when no writ was issued, or a defective writ was issued, it seems to be necessary that a petition for the return of the property sworn to by the defendant should be filed at some time before the final adjudication of the case, or before the evidence is sought to be introduced, and as this was not done in the case at bar, or at least the record does not show that it was done, the defendant below might have been deemed to have waived this right.”

In the present' ease, no such application or petition for the return of the property has ever been filed, and relying upon the previous attitude of this- court alone, the court is convinced that the first question above set forth should be answered in the negative.

In further support of this contention, the court calls attention to the case of Ankenbrandt v. State, decided by the court of appeals sitting in Lucas county, on February 13, 1922, wherein the court, passing upon a somewhat similar question, stated as follows:

“No demand was made at any time upon the mayor for the return of the property in question. We have no difficulty in arriving at the conclusion that the demand for the return of goods alleged to have been illegally taken from the possession of the owner must be made upon the court, prior to the time of trial and not upon the individual officer in whose custody the property is. Manifestly this is true because the rightfulness of the demand is a question that must be tried before the court before whom the proceeding is pending.
“It is a question of fact which should ¡be presented to the court in advance of and separate and apart from the trial of the case itself, in order that the trial court may have the opportunity to pass upon the application, and either order the return of the property or refuse to order the return of the property* as the facts determined should be done, prior to the commencement of the trial itself.”

An other Ohio case that has been widely discussed upon this question, and frequently misunderstood and misinterpreted, is that of Kovacs v. State, decided by Judge Snediker of the Montgomery County Common Pleas Court, and published in the Law Bulletin and lieporter of March 27, 1922* wherein the court says:

“Where evidence is offered, if it be otherwise competent and relevant, an objection to its admission on the ground that it has been secured by unreasonable search and seizure, will not be entertained by the court.”

In the ease of Adams v. United States, 192 U. S., 585, the court, in passing upon this question, says:

“A 'defendant who thinks himself wronged by the seizure oí property belonging to him which he expects will be used against him later as evidence on a criminal charge, is not without adequate remedy. He should apply to the court for the return of the property alleged to have been illegally seized, and the issue of the legality of the seizure can then be determined in accordance with law and in an orderly manner.”

One of the latest cases dealing with this question* and one to which frequent reference is made, is that of Wiggins v. United States, reported in 272 Federal Reporter, p. 41, wherein the court states that:

“It is established law that collateral inquiry in the mode in which evidence has been obtained, will not be allowed when the question is raised for the first time at the trial.”

We feel that the previous attitude of this court is the correct one, and should and will be followed in deciding this question in.the present case,

As to the second proposition- to-wit: Did the burden of proving that the possession of the liquors seized was unlawful rest upon the state or was it a matter of defense f We find, in view of the authorities hereinafter cited, that it was strictly a matter of defense, and that the burden of alleging or proving the same did not rest upon the state.

This is by far the most important question raised in this case, and because of this, we are taking advantage of this occasion to set forth fully the general prohibitory provision of the Crabbe act as found in the first sentence of Section 6212-15, of the Oeneral Code- which reads as follows:

“No person shall, after the passage of this act, manufacture, sell, barter, transport, import- export, deliver, furnish, receive, give away, prescribe, possess, solicit- or advertise any intoxicating liquors, except as authorized in this act. ’ ’

From the above section it is clear that it was the intention of the Legislature to outlaw the liquor traffic, except in certain instances wherein a privilege or a permit is granted. The only exceptions contained in the act are as follows:

“Liquor and liquor preparations and compounds for non-beverage purposes, and wine for sacramental purposes may be manufactured- purchased, sold, bartered, transported, imported, exported, delivered, furnished, received, given away, possessed, prescribed- solicited, and advertised, but only in accordance with the above provisions of Title II of the act of Congress known as the ‘National Prohibition act passed October 28, 1919.” ’ ,

and paragraph 2 of Section II of the same act, reading as follows:

“The term ‘given away’ and the term ‘possess’ shall not apply to intoxicating liquor in a b-ona fide private dwelling.”

It is clearly evident that, if the defendant lawfully had possession of intoxicating liquor, it must have been held under one of the preceding exceptions specified in the act. There is nothing contained in the evidence in this ease that could by the wildest stretch of the imagination justify one in believing that the rye whiskey seized was possessed for non-beverage or sacramental purports, and therefore, if it was lawful, it could be only by virtue of being possessed in a bona fide private residence as defined by the laws of Ohio.

There are two provisions of the Ohio code which go towards defining what premises may be regarded as a bona fide private residence. The first is contained in Section 4 of the Crabbe act and reads:

“No Search warrant shall issue to search any private dwelling, occupied as such, unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as store, shop, saloon, restaurant, hotel, or boarding house.”

The above provision was for approximately one year the only definition of a bona fide private residence in Ohio. It soon became apparent that such definition was defective in that it only took from premises their right to be considered a bona fide private residence when liquor was thereon being sold. The law making possessing, manufacturing, etc., equally a violation of the law was powerless to enforce those provisions of the law because of the strictness of the definition above set forth. After one year’s efforts resulting in a failure to make any substantial headway in enforcing the law against the liquor traffic, the Legislature saw fit in the exercise of its prerogatives to further and more correctly define for the enforcement of the prohibition laws, a bona fide private residence,, and in the emergency clause of the Miller bill is found ample evidence of the above contention, wherein they say:

‘ ‘ This act is hereby declared to be an emergency act, necessary for the immediate preservation of the public peace and safety. Such necessity exists because of the reason that flagrant violations of the law prohibiting the liquor traffic prevail in some parts of the state which is encouraging the .commission of other crimes1 all resulting in the loss-of life and property to many citizens.” ■

In Section 7, paragraph 3 of the Miller bill, it is stated that:

“No place shall be regarded as a bona fide private residence under the laws prohibiting the liquor traffic, wherein liquors are possessed which have been illegally manufactured or obtained. ’ ’

The above section is still law in the state of Ohio, and has been upheld by the courts in every instance wherein it has been invoked.

It is the contention of the defendant in error that if plaintiff in error seeks to show that the liquor seized upon the premises occupied by him, was possessed in a bona fide private residence, it is first necessary that he show that the premises were not used for any business purpose’ such as store, shop, saloon, restaurant, hotel, or boarding house; secondly, that the liquor being found upon said premises, he must prove that it was lawfully acquired and possessed.

■This brings us directly to the question of whether or not it is necessary for the state to allege or prove matter contained in a proviso or exception to a general statute.

This court in the case of Petro v. State, speaking through Judge Ingersoll, and construing the same identical provisions of the Crabbe act on which the defendant in error relies’ spoke as follows:

“The complaint made by defendant in error is to the effect that the affidavit does not contain the negative allegation. that the ‘possession’ charged was not in his bona fide private dwelling house, and that therefore no offense was charged.
“The question before the court for decision, then, is: whether it is necessary to set forth the negative averment to the matter of a proviso in a statute in an information or affidavit charging an offense.
‘ ‘ Our conclusion, after reviewing carefully the. authorities' in, the state.of Ohio on this proposition, is: that a negative averment to the matter of a proviso in a statute is not requisite in an information, unless the matter of such proviso enters into, and becomes a part of the description of the offense’ or is a qualification of the language defining or creating it, and that the provision contained in Section 2 of the Crabbe law above cited does not enter into and become a part of the description of the offense or qualify the general language defining the offense.
“The language of Section 3, which is the enacting clause of the law as to the offense of ‘possessing,’ is general, and makes it an offense for any one to have intoxicating liquor in his possession. Section 2 simply creates an exception to the general provisions of Section' 3, charging the offense and excepts from the operation of the law the possession of intoxicating liquor by anyone in his own private dwelling-house.”

From the foregoing opinion of this court it is evident that it is not incumbent upon the state to prove that the premises were not a bona fide private residence, but that the burden rests upon the defendant of proving that he comes within the exceptipn or proviso of the statute, and to do this he must prove the premises to be a bona fide private residence as defined by the laws of Ohio.

The court in its review of the authorities in Ohio quotes with approval Hirn v. State, 1 Ohio State, p. 15; Billingheimer v. State, 32 O. S. p. 435; Hale v. State, 58 O. S., 676, and Brinkman v. Drolesbmogh, 97 O. S., 171.

In the last case above cited defendant in error contends there is ample warrant for the position taken by it, in that part of the decision quoted with approval by this court in reaching its decision, wherein the Supreme Court says: . .

“If the acts complained of in this case were within the exception, the defendant’s rights were fully protected by permitting him to set them up in defense. These were matters as to which he had particular and special knowledge, and no harm can come to him nor to the state by imposing upon him the duty of bringing himself within such exceptions.”

We think that the rule laid down by the Supreme Court, in .the above cited paragraph applies with full force to the facts of the case now before this court. A search of the defendant’s premises is made. The law prohibits the possession of intoxicating liquors. Liquors are found upon the premises. The defendant claims the benefit of a proviso or .exception contained in the law. The burden rests upon him to show that he- comes within the proviso or exception. The facts “were matters as to which he had particular and special knowledge, and no harm can come to him nor to the state by imposing upon him the duty c.t bringing himself within such exceptions,” and proving that the liquor was not unlawfully acquired, if such is the case.

On this point this court in its previous decisions has shown and quoted with approval an unbroken line of decisions from the 1st Ohio State to the 97th Ohio S'tate, holding that where one claims the benefit of a proviso or exception, the burden is on him to prove that he comes within such proviso or exception. In the present ease, the defendant claims the benefit of paragraph 2 of Section 2 of the Crabbe act, which this court has held to be such an exception that need not be averred or proven by the state, but should be proven by the defendant.

This court, in its concluding paragraph, and summing up its decision in the Petro case, says:

“In view of the doctrine so clearly laid down by the foregoing authorities, we are of the opinion that it was not necessary for the affidavit on which the arrest was based in the ease at bar to contain the negative allegation that the possession of the alcohol by the defendant was not in his private bona fide dwelling.”

The law in this respect has not changed, and it is still encumbent on the defendant to prove that he comes within the exception provided. The only thing that has changed is the definition of what is a bona fide private dwelling, and we hold that a change in the definition of a private dwelling does not transfer this duty or burden from the defendant to the state, but that the defendant must prove under the definition as it now exists that the premises were a bona fide private dwelling. In this case the defendant introduces no evidence whatever, and there is nothing before the court that would tend to bring the defendant within the exception provided in paragraph 2, of Section 2, of the Crabbe act.

In passing upon this question, the court of appeals of the fourth district of Ohio in the case of Callahan v. State, after quoting the definition of a bona fide private residence as contained in the Miller apt, says:

“The Legislature in this sentence undertook to define, for more efficient enforcement of the law, what places should not be considered bona fide private residences. The Miller law takes out of the category of bona fide private residences those places where liquors are possessed which have been illegally obtained. ’ ’

And in the case of State of Ohio v. Tunis Elson, from the court of appeals, Coshocton county, Ohio, we quote the following:

“It will be observed that the offense defined in said Section 6212-15 consists in possessing intoxicating liquors, and when the proof establishes that fact it is all that is required under said statutory provision. If the intoxicating liquor is possessed lawfully, that may be shown as a matter of defense.
“We do not think it necessary to aver in the affidavit that said intoxicating liquor was for beverage purposes for the further reason that the ‘Crabbe act’ simply outlaws intoxicating liquor for beverage purposes, and the force and effect of said act is that one who possesses it is guilty of an offense, unless such possession comes within the exceptions thereto, and which exceptions must be affirmatively established as a defense.”

In summing up the Ohio law applicable to this case, the following is seen:

The Crabbe act outlaws intoxicating liquors except in certain ways therein specifically exempted from the operation of the law.

Secondly, that if a defendant wishes to avail himself of the exception provided in a statute, he must affirmatively show that he comes within such exception. In this case the defendant is claiming the benefit of an exception contained in paragraph 2 of Section 2 of the Crabbe act, and it is the holding of this court that the burden rests on him to show that he comes within said exception, and that to prove that he comes within said exception he must show his premises to be a bona fide private residence within the meaning of that term as defined by the Miller act.

In conclusion, we wish to again emphasize these two things:

First, no demand having been made for the return of the property seized under tbe search warrant, it was properly admitted in evidence.

Second, that the defendant claims the benefit of an exception in the statute, and that the burden rests on him affirmatively to show that he comes within such exception. To do that in this case he must prove that the premises whereon the liquor was seized were a bona fide private residence under the laws of Ohio, and to do this he must establish the fact that the liquors found in'his possession were lawfully obtained.

Both of these questions we feel have been decided in favor of this construction by this court. "We feel that the previous finding and decision of this court was correct and sound, and that in accordance therewith, the judgment of the court below is correct, and should be and the same is hereby affirmed.

Vickery, P. J., and Sullivan, J., concur.


author: Shields, J.

text:
    VALIDITY OF LIEN ON AN INHERITANCE IN REAL ESTATE.
    Court of Appeals for Coshocton County.
    Perry Loos et al. v. The Buffalo-Springfield Rubber Co.

    Decided, May Term, 1922.

      Wills — Failure to Probate a Will Where There is Knowledge of Its Existence — Validity of Levy on Interest of an Heir — Application of the Statute of Limitations.

    1. Where persons interested in the will of a decedent neglect to cause it to be offered for probate within three years following the death of the decedent or of becoming informed of its existence, the will becomes inoperative so far as vesting title to real estate in such persons is concerned, and realty devised to persons thus in default descends to the heirs of the testator.
    2. Dp to the time of probating a will the title held by the widow and heirs is one of inheritance, and the priority and validity of a levy during that interval upon the interest of one of the heirs cannot be questioned.

      Pomerene & Pomerene, for plaintiffs.

      Judge G. B. Hunt, contra.

       Motion to require the Court of Appeals to certify its record in this case .overruled, by the Supreme Court, May 2, 1922.

   Shields, J.

This action was commenced in the court below to enforce a judgment lien upon the undivided interest of Perry Loos, one of the plaintiffs in error, in his deceased father’s real estate.

The facts appearing of record are as follows: August 18, 1910!, one John Loos, died testate, owning certain real estate in Coshocton county, Ohio, leaving his widow, Elizabeth Loos, and the said Perry Loos, Martha E. Rehard and Mary E. Loos, his children, surviving him.

By the terms of his will, the said John Loos, deceased, devised his real estate to his said widow for and during her natural life, and at her death, certain tracts thereof and therein described, to his said children: Martha E. Rehard, and Mary E. Loos, and one Jessie C. Loos, the latter being the wife of the said Perry Loos. No property was devised to the said Perry Loos.

On October 16, 1919, Elizabeth Loos, widow of the said John Loos, died.

On March 19, 1921, Henry Rehard, husband of the said Martha E. Rehard, produced and offered for probate a paper writing purporting to be the.last will and testament of the said John Loos, deceased, which was admitted to probate on May 16, 1921.

On September 30, 1910, judgment was obtained against the said Perry Loos and others in the common pleas court of said Coshocton county, by the defendant in error for the sum of $1,-001.801 on which there is due and unpaid the sum of $584.90, on a debt created' before the death of the said John‘Loos, and subsequent thereto executions were issued on said judgment from time to time and levied on the interest and estate of the said Perry Loos in said real estate, and that said lien thereby became and is a good and valid and subsisting lien thereon. That the said Perry Loos has no other property subject to execution out of which said judgment can be satisfied.

After reciting the foregoing facts in its petition, the plaintiff avers that the “said Martha E. Rehard, Mary E. Loos and Jessie G. Loos each had knowledge of the existence of said will and each had it within her control and each failed and neglected to .cause the same to be offered for or admitted to probate within the term of three years from the time she had knowledge of its existence and had it in her control. By reason of the premises, the plaintiff avers that no title to any part of said real estate passed to or vested in any of said parties under said will and the title to said real estate at the death of John Loos passed to and vested in his three children, subject to the interest of his said widow.”

The prayer in said petition is that the one undivided third of said real! estate be declared to be the property of the said Perry Loos, that his title thereto be quieted as against the claims of the other defendants under said will and that the interest of the said Perry Loos in said real estate be sold to satisfy said judgment.

In their amended answer, and for a first defense, the defendants admit the recovery of said judgment by the plaintiff, that there is an unpaid balance due thereon of $584.90 and that executions were issued thereon as averred in the plaintiff’s petition; that the said John Loos died testate, seized of the real estate in said petition described and left surviving him his widow, Elizabeth Loos, and the defendants, Perry Loos, Martha E. Rehard and Jessie C. Loos, his only children and heirs at law; that on or about March 19, 1921, Henry Rehard, husband of the said Martha E. Rehard duly offered for probate the last will and testament of the said John Loos, deceased, and on Miay 16, 1921, the same was duly admitted to probate and record by the probate court of said Coshocton county; that by the terms of said will, said real estate was devised as in said petition set forth; that the defendants, Martha E. Rehard, Mary E. 'Loos and Jessie C. Loos, each had knowledge of the existence of such will, and the defendants deny all the other allegafcions in plaintiff’s petition, not admitted in said answer to be true.

For a second defense defendants set up two grounds of defense :

(1) The cause of action did not accrue within six years next prior to the time of the commencement of this- action.

(2) The cause of action did not 'accrue within one year next prior to the time of the commencement of this action.

A demurrer was filed to said petition- raising substantially the defenses pleaded in the second ground of defense in defendant’s answer which' was overruled by the trial court.

In the court below the defendant in error recovered a judgment and decree as prayed for in its said petition and by a petition in error it is here sought to reverse said judgment.

An inspection of the pleadings shows that there is little or no controversy between the parties hereto as to the material facts alleged inosaid petition, but the contention arises as to the construction of Section 10542, General Code, the provisions of which section it is claimed govern a case of this character under the admitted facts.

Said Section 10542 (Effect of Devisee Withholding Will) prof vides that

“No lands, tenements or heriditaments, shall pass to any devisee in a will, who for three years knows of its existence, and has it in his power to control it, unless, within that time, he causes it to -be offered for, or admitted to, probate. By such neglect, the estate devised to such devisee shall descend to the heirs of the testator.”

That the rights of beneficiaries under a will may be saved and not lost, the Legislature of this state has wisely provided in Sections 10511 and 10514, General Code, a method by which a will known to exist may be produced, after the death of the testator, for the purpose of probate, and in default of producing the same, the person having the custody or control of sireh will, in the absence of reasonable cause, may be cited and punished therefor. Section 10541, General Code, likewise provides that

“Unless it has been duly admitted to probate or record as provided in this chapter, no will shall be effectual to pass real or personal estate.”

'It will thus be seen that under the foregoing statutes “if real or personal estate be devised or bequeathed by one’s last will, the executor, or any person interested therein may cause it to be brought before the probate court.” And until it shall be admitted to probate, such will shall be ineffectual to pass either real or personal property. Said Section 10542 then prescribes a limitation, of time of three years when it shall be offered for probate and any neglect to do so, etc. Here it appears of record that the said John Loos, deceased, executed his will July 18, 1910, and before his death delivered his said will to Henry Rehard, his-son-in-law and the executor named therein, who, with the knowledge of the devisees named therein, retained the same in his custody until March 19, 1921, before the same was offered for probate. With this information and under the circumstances appearing of record, the defendant in error contends that the case clearly falls within the provisions of said Section 10(452 and that the estate of the said John Loos, deceased, descends to his heirs, including Perry Loos, one of the plaintiffs in error. This contention is opposed by the plaintiffs in error on the ground that the provisions of said Section 10542 do not apply under the facts in this case, and on the further ground that the claim of the defendant in error is barred by the statute of limitations.

(1) That the statutes already referred to place it in the power of a person interested in a will, known to exist, to compel the person having the custody or control of the same to produce it by process, if necessary, that it may be admitted to probate seems clear, and construing the language used in said Section 10542 to mean what it says, it is equally clear that where a person interested in a will neglects to take such action within three years after the known existence of the will, such will becomes inoperative as to vesting title to real estate, and the real estate devised to such person descends to the heirs of the testator. Here it appears that each and all of the plaintiffs in error knew of the existence of said decedent’s will, if not of its contents, from the time it was first placed in the custody of Henry Rehard in the year 1910.

(2) It is contended on the part of the plaintiff in error that the cause of action is barred by the statute of limitations. The record shows that said judgment was recovered September 30, 1910, and' that executions were issued thereon September 30, 1910, December 3, 1914, and October 21, 1919, the last two being levied on the interest and estate of the said Perry Loos in the real estate of which his father died seized. Up to this time said will had not been filed for probate, hence the title held by the widow and heirs of said decedent was one of inheritance, and the priority and validity of the lien of the defendant in error on said Perry Loos’ interest therein would not then be open to question. Afterwards, on March 19, 1921, the will was offered for probate and admitted to probate on the 16th day of May, 1921. It will scarcely be claimed that the statute of limitations began to run before that time, namely, March 19, 1921, hence the six years statute of limitations interposed could not apply, nor would the one year statute of limitations apply for the reason that the action was brought within three months after the will was offered for probate and even before the will was in fact probated.

Upon a review of the entire record, we find no error in the proceedings of the court below and the judgment of that court will therefore be affirmed.

Patterson and Houck, JJ., concurring.


author: Houck, J.

text:
    CLAIM BY PRESCRIPTION OF AN EASEMENT FOR AN ALLEYWAY
    Court of Appeals for Muskingum County.
    Lee D. Dutro v. M. O. McCammon.
    Decided, January 2, 1922.

      Easement in Another's Land — Not Acquired by Use for. Twenty-one'.. Years as a Passageway — Where the Owner of the Estate Also Made. Use of the Strip as a Way and for Other Purposes.

    An. easement for an alleyway is not acquired in a strip of ground running along side of plaintiff’s property and claimed by bim by prescription, where the evidence discloses that the strip forms a part of the improved adjoining lot of the defendant, and that for'moré' than seven of the last twenty-one years he maintained a building on the said strip and at one time a fence across the front, and that, he has used the strip as a means of access to his store building and has left his wagons and teams there at will.

      L. J. Weber and Perry Smith, for plaintiff.

      II. W. Kuntz, for defendant. .
   Houck, J.

This case is before us on an appeal from thé common' pleas court of Muskingum county.

The suit is one for injunction against the defendant, the plaintiff claiming that defendant is seeking to and will obstruct his free use and that of the' public in and to a certain alley or driveway lying between the lots of plaintiff and defendant'. The pleadings raise the following issues of fact:

The plaintiff brought suit to procure an injunction against the defendant and to prevent the said defendant from building a stairway "on the north side of the defendant’s building on Lot No. 6 in the.I. N. McCoy addition to the village of East Fultonham, in'Muskingmu county, Ohio. The plaintiff owns a part of the south side of lot No. 5, to-wit, 26 feet'wide'by 85 feet long, and has a business building thereon which entirely covers his holding.

The plaintiff claims in his petition that there is an alley or right of way on the south side of his building and along the north side of defendant’s building and on and over Lot No. 6, and asks that defendánt be restrained from .building a stairway in the strip of ground between the building of the defendant located on Lot No. 6 and the building' of the plaintiff, the strip of ground in question being about nine feet wide and extending in length along the entire north side of Lot No. 6.

The defendant by his answer denies the existence of an alley or right of way between Lots No. 5 and No. 6, and in his cross-petition says that he is the owner of all of Lot No.' 6 and asks that his title be quieted against the claim of the plaintiff.

The plaintiff in his answer to the cross-petition avers that for more than twenty-one years last past, the plaintiff and his predecessors in title and the public have used, without let or hindrance, said strip of ground in question, and that they have bad the open and uninterrupted use of same as a road or driveway during all of said twenty-one year period and more.

The cause 'was submitted on the pleadings and the evidence, the latter being in the form of a' typewritten transcript of the testimony taken in the trial in the common pleas court and supplemented by oral testimony taken in this court.

We have carefully read all. the transcript testimony and with the oral proof analyzed and weighed the same.

The solution of the question presented embraces but a single question of fact, viz.: Did the plaintiff-and his predecessors .in title and the public, or either of them, have a prescriptive right over the strip of land involved in this s.uit?

In the light of the proven and conceded facts and the- well known principles of law: governing -them, we must and do answer this question in the' negative. . .

The plaintiff has failed in fact and law to sustain the claims made in his petition and the affirmative allegations of fact set forth in his answer to the cross-petition of defendant.

It was necessary for plaintiff to establish by that degree of proof required by law', in order to maintain his alleged prescriptive right or easement in the tract of land in controversy, the following -facts:

. (a) Continued .and uninterrupted use or enjoyment of the premises for a period of at least twenty-one years.

(b) A certain and definite road travelled.-

(e) A claim of right and of such nature and character as to be adverse to the owner of the soil, which must be known to and acquiesced in by said owner.

There is an utter failure in the proof to establish these facts or either .of .them. . .

The evidence fails to show that the claimed right- of way was open and visible to the owner or owners of the servient estate for a period of twenty-one years; and there are no facts or circumstances that warrant us in finding that there has been.such a continuous use of said strip of ground, for the time required by law, as to charge said servient owner or owners with constructive notice or knowledge of said use as would charge-them-with same.

We think that counsel will concede that where an owner of land and those from whom he obtained title have had the free use for more than twenty-one years, without let or hindrance, over and upon a certain well defined strip, of ground of adjoining lands to a public street or highway, it constitutes an easement in and a right of way over such strip of ground so used.

The evidence in the present case is: that during the p.ast twenty-one years, on said aP-jged right of way and for a period of more than seven years, a building stood on and over same; that .on many occasions, and for weeks at a time, the owners of the servient estate would and did use same for their own per-, sonal benefit and to the exclusion of all others; .that they placed, posts and fencing across same, which remained there for weeks,, and no one made complaint by reason thereof;. that said, owners of the servient estate used same as a means of getting to and from the store room located on said Lot No. 6 and on the south side of the right of way in question, and left their horses and wagons on said strip of land at will and for such time as they desired so to do.

Measuring these facts by the rule of law just laid down, we must and do find that the plaintiff is not entitled to the relief sought in his petition.

We cite the law as laid down in the following authorities and cases, when applied to the facts in the instant suit, as being decisive of the issue herein in favor of the defendant:

“In order, however, that the enjoyment of an easement in another’s land may be conclusive of the right, it must have been adverse, that is, under a claim of title, with the knowledge and acquiescence of the owner of the land, and uninterrupted ; and the burden of proving this is on the party claiming Ihe easement.” 2 G-reenleaf on Evidence, Section 38.
“When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription to its use as an incident to his land; and the right will pass by a conveyance or descent of the land.” Second syllabus. Pavey v. Vance et al., 56 Ohio State, 162.
“Title by prescription to»a public-street can be shown only by adverse user by the public, under a claim of right and uninterrupted for twenty-one years.” Fourth syllabus. Railroad Company v. Village of Roseville, 76 Ohio State, 109.

We have carefully considered all of the facts presented in this law suit and examined all of the authorities referred to in the briefs of counsel, and we are fully satisfied that the proven facts fall far short of making out a case for the plaintiff.

It follows that the petition of plaintiff must -be and hereby is dismissed, the injunction dissolved, and a judgment is hereby entered as prayed for in the cross-petition-of defendant and his title is quieted in and to the land involved in this action.

Judgment for defendant.

Shields, J., and Patterson, J., concur.


author: Sayre, J.

text:
    WHEN THE BUILDING OF A PARTITION FENCE MAY BE REQUIRED.
    Court of Appeals for Vinton County.
    David A. Jennings v. Fred W. Wilson et al, Trustees of Wilkesville Township, Vinton County, Ohio.
    Decided, December, 1921.

      Fences — Construction of the ¡Statute Relating to the Building of Partition Fences — Benefits.
    Landowners must build partition fences as required by Section 5908 unless sucb fences will be of no benefit to their lands.

      David A. Jminings, plaintiff, appearing on behalf of himself.

      John E. Blake, prosecuting attorney, on behalf of defendants.
   Sayre, J.

This is an action for injunction to prevent the trustees of Wilkesville township from proceeding in accordance with Section 5908, et seq., to compel, the plaintiff to build or pay in taxes for the building of a partition fence.

Before the last amendment Section 5908 then R. S'., Section 4239) read in part as follows:

“The owner * * * of land, adjoining a fence of whatsoever material constructed, in all respects such as a good husbandman ought to keep, erected by the owner * * * on the line of his -land, who makes or causes to be made an inclosure adjoining such fence "so that such fence answers the purpose of inclosing his land, shall pay * *

The decision in Kingman v. Williams, 50 O. S., 722, rests upon the statute just quoted as it read in 1893. But except as a matter of history Kingman v. Williams is of no consequence now, because by the amendment of April 18, 1904, 97 O. L., 138), the statute was changed tq read as it does now:

‘ ‘ The owner of adjoining lands shall build, keep up and maintain in good repair, in equal shares,.all partition fences between them, unless otherwise agreed upon by them in writing * *

The decision in the case of The Alma Coal Co. v. Cozad, 79 O. S., 348, holds that such act—

“may not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a line fence for the sole benefit of the adjoining owner. ”

This decision has given rise to much confusion and' discussion. It was admitted by the demurrer in that case that the lands of the plaintiff were—

“wild, uncultivated and unfenced and that it (the plaintiff) has no desire or intention to improve, fence or cultivate any portion thereof, and that said fence is of no value or benefit to it whatever.”

What has caused the confusion, perhaps, is the statement of the law in the second paragraph of the syllabus that if the lands are, and are to remain unenclosed then the owner cannot be lawfully charged with the expense of constructing and maintaining a partition fence.

Was the matter of enclosure alone to determine whether an owner could be charged with the expense of such construction? If so, the amendment of 1904 was a nullity. That amendment leaves out the matter of enclosure and requires the adjoining owner to keep up and maintain partition fences under all circumstances except in case of an agreement..

The matter is further complicated by two decisions rendered subsequent to the Cozad case. In Roth et al., Trustee, v. Beech, 80 O. S., 746, unreported, it did not appear that the land was unenclosed. In McDorman v. Bullard, 94 O. S., 183, it did not appear that the land was unenclosed. In the former case the land owner, objecting to the improvement, won on the authority of the Cozad case. In the latter case, McDorman v. Bullard, the land owner lost on the same authority. The facts are identical in each case.

The last word on the subject, so far as we know, will be found in Zarbaugh, Treas., v. Ellinger, 99 O. S., 133-138, where the history :.of Section 5908' and the decisions thereon are reviewed, and 'is as follows: ‘‘ 1 • •

“From the fact that for so long a time the statutes required an owner to contribute to the cost only where the ‘fence answered the purpose of enclosing his land,’ it would seem to be apparent that at that time the general assembly felt, that the only benefit conferred on a farmer’s land by a fence was by its making a complete enclosure. The amendment to the statute in 1904, now Section 5908, et seq., General Code, evidences a different view by the Legislature and a determination to impose a larger duty, namely, the view that there are conditions and circumstances in which a partition fence is of advantage and value to a landowner, even when it does not make a complete enclosure. When such a situation is presented the enforcement of the-requirements of the statute is not a violation of rights guaranteed by the constitution.”

So we take it that the question in this case is not whether the .partition fence when constructed will inclose the lands of the plaintiff, but whether his premises will be benefited by such fence — whether such fence will be of advantage and value to the farm. For if só, then Sections 5908, et seq., must govern, like any other statute that is not contrary to the state or federal constitutions.

The agreed statement of facts reads as follows:

“It is admitted that there are 53% acres of land in the tract set out in his petition and that the lands of Rebecca Williams join said land on the north and that the said Rebecca Williams has constructed half of the line fence between her land and the said 53% acres of land belonging to the plaintiff * * *.
“It is admitted that there are 30 acres of land in cultivation of the 53% acres; that seven acres of the same are in com and six acres are in oats and fifteen acres are in meadow; that neither the said oats, corn or meadow.are enclosed; that the said corn and oats land lies adjacent to the land of the said Baird and adjacent to the fence already constructed by the said Baird. It is admitted that the said Baird is using his land adjacent to the said 53% acres of land on the south for pasturing pur; poses and that if the land- of the said Baird be pastured that there are no fences to prevent the stock of the said Baird from destroying the said crops of the said Jennings. It is also admitted that the said Jennings, plaintiff herein, intends to cultivate his land in the future, to-wit: the said 53y2 acres of land, to the same extent that he is now cultivating the same #*#>>■•

That the building of the partition fence will benefit the land of the plaintiff we entertain no doubt. If land is cultivated or to be cultivated, no one can deny that a fence is beneficial to it. A fence which partially encloses cultivated land is beneficial to some extent. If it encloses the field adjoining, it will prevent injury from stock in that field. Even if it does not enclose such field it will prevent in some degree encroachment by stock kept therein. Besires, -when a farm is fenced on one side it requires just that much less exercise of muscle and outlay of money to complete an entire enclosure, which is generally necessary to the proper cultivation of the tract. Every rod of partition fence added to a tract of land which is, and is intended for cultivation, adds that much to the value of the -farm; It is no argument' for the land owner to say that because he does not want a fence and that he will take all chances from straying live stock, the fence will be of no benefit or value to his land. Except in cases where the partition fence will be of no benefit, as when the land is wild and uncultivated and is to remain so, the owner must build his fences whether he regards them as of any benefit or not.

"We adopt the suggestion of Judge Johnson in the case last referred to, because that comports with.our view of the statute under consideration. The statute makes no mention of enclosures and is intended to operate in all cases and must do so. except in ease of land which will not be benefited by a partition fence — an exception written into the statute by the Supreme Court.

The decree will be in favor of the defendants.

The petition will be dismissed at plaintiff’s costs.

Middleton and Mauck, JJ., concur.


author: Cushing/J.

text:
    JURISDICTION OVER CUSTODY OF CHILDREN.
    Court of Appeals for Hamilton County.
    Cohen v. Judge.
    Decided, October 4, 1920.

      Divorce — Jurisdiction of a Foreign Court — Service by Publication — • Custody of Children Resident in Ohio. .

    1. A foreign court, in divorce proceedings, on service by publication against a defendant in Ohio, lias no jurisdiction or control over 1 ' defendant’s children domiciled in Ohio, and an award of the custody of the children by such court is of no effect. Such court cannot acquire jurisdiction over the children by their being temporarily in that state, their domicile remaining in Ohio.
    2. In a habeas coryvis proceeding to determine the jurisdiction of a ' foreign court, in divorce proceedings, over children domiciled in Ohio, the insolvency court of Hamilton county is without au- ■ thority to award the custody of such children.
    Error- : Court of Appeals for Hamilton County.
    . A. C. Fricke and Spangénberg cfe Spangenberg, for plaintiff in error.'

      Littleforcl cfe Ballard, for defendant in error.
   Cushing/J.

■ ' December 21, 1907, plaintiff and Francis E. Judge were married. Two children were born to them. In 1913 they separated. At that time plaintiff took up her residence in Chicago and has resided there. ever since. Francis E. Judge became a resident of' Hamilton county, Ohio, in 1913, and is a resident of this county now. In May, 1913, plaintiff gave her two children to Miss Eva Viola Judge, sister of Francis E. Judge. They have lived in this county continuously, and have been supported by Francis E.. Judge.

In 1915, on service by publication, plaintiff secured a divorce from Francis.E. Judge in the court of Cook county, Illinois. The decree, which gave plaintiff the custody and care of the children, was made in the absence of the father and the children from the state of Illinois, and without service or jurisdiction over them other than the service by publication in the divorce case.

July 25, 1917, plaintiff was married to Harry C. Cohen. They have been and are now residing in Cook county, Illinois.

June 6, 1918, plaintiff, Nellie G. Cohen,. secured a. writ of habeas corpus from the court of insolvency of Hamilton county, Ohio, claiming the custody of the children under the decree, above referred to, of the court of Cook county, Illinois, by .virtue of which she asserted the children were unlawfully detained. At the hearing upon that writ the court of insolvency held that the decree of the Illinois court, in so far as it related to the custody and care of the children, was void for want of jurisdiction, over .them or their father. .

" The court of insolvency then proceeded to- and did award the custody and care of the' children to- defendant, Eva Viola Judge, and provided that the plaintiff, the mother, could have them during the school vacation period in the summer. Plaintiff consented to that decree. . July 31, 1919, the court of insolvency modified said decree by eliminating that part of it allowing the mother to have the children during the school vacation period. This proceeding is prosecuted to reverse the judgment as modified.

Two questions are presented.

1. Did the court of Cook county, Illinois, in the divorce proceeding, on service by publication against the father, when both the father and children, resided in Ohio, have power over the children ?

2. What was the extent of the jurisdiction of the court of insolvency over these children when.they were before it on the writ of habeas corpus?

’ The 'court of insolvency was Correct in determinating that the Illinois court did not -have power to award -the custody of the children to anyone.

The law is settled that in granting a divorce' on substituted service, where defendant and the infant children are not within the jurisdiction, the court has no power to award the custody of the children to plaintiff. 19 Corpus Juris, 341; De La Montanya v. De La Montanya, 112 Cal., 101, and Seeley v. Seeley, 30 App. D. C., 191.

The children being ■ domiciled in Ohio; a foreign decree of divorce, awarding their custody, entered when neither the defendant nor the children were within the jurisdiction of the court, is of no effect for want of jurisdiction, so far as the award of the custody is concerned. 19 Corpus Juris, 369.

Should it be contended that the Illinois court acquired jurisdiction of the children by reason of their going to their mother during the school vacation period, that contention could not be sustained. The decree of the .court speaks from the date of its entry, and the children were not there until after it had been entered. The Illinois court could not acquire jurisdiction over these children while they were temporarily in the state. The domicile of the father and the children controls. Kenner v. Kenner, 139 Tenn., 211. See 1 Bailey on Habeas Corpus, 580.

The question of the jurisdiction of the court of insolvency has been before this court on a number of occasions. That court is a statutory as distinguished from a constitutional court. It has only such jurisdiction and powers as are specifically conferred by the General Assembly creating it. For some years prior to December 31, 1914, it had jurisdiction in divorce and alimony cases. Incident thereto, it had jurisdiction, in such cases, to award the custody and care of infant children, as the facts in the case before it warranted. Since that date it has not had jurisdiction in such eases except in those previously pending. Kelly, Judge, v. State, ex rel. Gellner, 94 Ohio St., 331.

It should, therefore, have dismissed the habeas corpus writ. People, ex rel. Tappan, v. Porter, 1 Duer, 709.

The conclusion is that the jurisdiction of the court of insolvency ended with its judgment on the writ, and as it was not authorized to award the custody of the children in the proceeding before it this court will enter the decree which the court below' should have entered.

An entry may be presented accordingly.

Judgment accordingly.

Shoi-il, P. J., and Hamilton, J., concur.


text:
    NOTICE AS TO PROVISION FOR A STREET OF A SPECIFIED WIDTH.
    Court of Appeals for Knox County.
    D. Clarence Parrott v. C. L. Daugherty et al.
    Decided, March 25, 1922.

      injunction — Against Encroachment by Abutting Owners upon a Street Stipulated in a Recorded Agreement to be of a Certain 'Width.

    A recorded plat will be presumed to be correct, and where with the plat there is placed on record a contract with the original owner of the land wherein it is stipulated that a street shall be built in a certain location and of a specified width, purchasers of lots along the line of such proposed street are put on notice as to the stipulation with reference to the street and its width and may not encroach thereon.

      C. L. Bermont, for plaintiff.

      B. E. Sapp and B L. Carr, for defendant.
   Houck, J.

This case comes into this court on appeal from the common pleas court of Knox county.

The petition in substance avers that on the 23d day of February, 1906, plaintiff, as guardian of Edna M. Parrott, Lida A. Parrott and Clarence Parrott, entered into a contract in writing with the Tri-State Land Company, whereby he sold to said land company certain real estate located in Clinton township, Knox county, Ohio; that he is one of the owners and in control of twenty-five acres of land lying immediately south of the tract sold to the Tri-S'tate Land Company, and had the management and control of same at the time the contract herein referred to was entered into with said land company.

Plaintiff further says that by the terms of said agreement the Tri-State Land Company was to open up a public road forty feet wide across the premises herein bargained for, and leading to the premises lying south thereof, of which this plaintiff has the management and control. Plaintiff says that the land herein mentioned', purchased by said land company, was laid out into lots and factory sites, and known as Yernonview, and on or about the 23d day of April, 1906, a plat thereof was filed with the recorder of Knox county, Ohio, which plat shows the lots, streets and alleys, and that lots were afterwards sold according to the plat herein, mentioned; that one of the-streets that was opened and dedicated to the public, as shown on said plat, was Union street, which was opened on the line as provided for in the contract of purchase,' and ■ the same was opened up-forty feet in width, as shown on said plat. ‘

Plaintiff sáys that his most convenient mode of access to the twenty-five acre tract on the south is over Union street from Melick street, and plaintiff says that the defendants have recently purchased lots No., 10, 11, 12 and 13, in Block D, in Yernonview, and -also the east one-half of the north.,one-half of Factory Site No. 3, as the same are designated-, on-said-plat. Plaintiff saj^s that the defendants are encroaching,, upon said Union street, and obstructing and plowing it. up, and will continue to do so unless restrained by order of the court; that the plowing of said Union street by the defendants interferes with and prevents his ingress and egress' to his’ land lying' on the south of said defendants, and if not prevented from plowing up said street it will result in great and irreparable injury and damajge to this plaintiff, for which he has no remedy at law. Wherefore plaintiff prays that the said, defendants may be enjoined from obstructing said Union street, or in any way interfering with plaintiff’s travel thereover, and for such other relief as equity may require.

' The defendants filed an amended answer to this petition, and in substance' aver that said land company failed to dedicate said, plat'and lots, as required by law, and.that the same has never been accepted by the county commissioners; that plaintiff has no right in or over the property described in said petition, and prays that the petition of the plaintiff may be dismissed.

Upon the issues raised by these pleadings the cause was submitted to this court.

The évidence clearly shows that the lots in question- were platted by the Tri-State Land Company; that said lots,, with others, located in said Vernonview addition, and the land of what is now known as Vernonview Addition, were purchased of this plaintiff and others, as set forth in his petition; that' a written contract was entered into between plaintiff and his associates and the Tri-State Land Company, and it was agreed therein that the street in question should be forty feet wide, in order that plaintiff- and his associates might have ingress and ■ egress to the- real estate lying south of said Vernonview addition and now owned by this plaintiff and his associates.

This written contract between plaintiff and his associates and the Tri-S’tate Land Company was duly filed and recorded in the recorder’s office of Knox county, Ohio, on November 2d, 1906, as appears in Plats Record Vol. 12, page .579, of the Record of Leases in and for Knox county, -Ohio; that some time thereafter said.plat of Vernonview was duly-recorded on-the plat records of the recorder’s office of Knox county, Ohio.

The evidence further shows- that the lots owned by defendants were conveyed to them by warranty deed of Frank M. Cochran and wife, bearing date of April 12, 1919, and that said de.ed is recorded in Deed Boob No. 138, page 382, of.the deed records of Knox county, Ohio. The description in said deed is as follows:

“The following described real estate, situated in the "township of. Clinton, county .of Knox and state of Ohio, and more particularly described as being lots located in Block D, in the Vernonview subdivision of Clinton township, and being lots No. 13, 12, 11 and 10, except a strip 10x14 feet in width- off of the west side of said lot No. 10, and also the east half of the north half of Factory Site No. 3, as the same is designated on plat record in Plat Record of Knox county, Ohio, Vol. 2, at pages 162 and 163.’’

It will be observed that the description of the lots in the deed just referred to refers to said plat record of Vernonview Addition and an examination of the plat of Vernonview Addition clearly shows that said Union street is platted forty feet wide. It therefore follows that in view of the contract entered into between the plaintiff and his associates and the Tri-S'tate Land Company, and which was duly recorded and is of record, and the further plat of Vernonview Addition and its record, and ' the further fact of the description contained in the deed of the defendants hereinbefore referred to, and its reference to said plat, that said defendants have, in fact and law, only such rights • in and to said lots owned by them as would not interfere with plaintiff and the public’s right in and to the free use of Union - street as it is laid out, to-wit, forty feet wide.

As a matter of law the defendants were put on notice by said written contract and said plat of Vernonview as to the width of said Union street, and therefore in the purchase of their lots they took title thereto subject to the use of plaintiff and the pub- ■ lie in and to Union street as it is platted, to-wit, forty, feet wide.

We hold the rule to be that where there is a recorded plat, it is presumed in law to -be correct, and thereby not only the correctness of the plat, but the width of streets and alleys, as shown thereon, are correct, and that purchasers of lots, designated on such plat are bound to -take notice of and respect the width of streets and alleys shown in such plat, and be governed thereby.

It follows from what we have already said that it is our- judg- ■ ment that the plaintiff is entitled to the relief prayed for in his petition.

Judgment for plaintiff, as prayed for, and injunction made perpetual. . '

Shields, J., and Patterson, J., concur.