text:
    PRIORITY OF COSTS OF ADMINISTRATION.
    Court of Appeals for Hamilton County.
    Klimper v. Klimper, Administratrix.
    Decided, January 19, 1920.

      Sale by Administrator to Pay Debts — Costs of Administration Prior to Claim of Mortgagee, When.

    Proceeds from the sale of realty by an administrator to pay debts of the decedent may properly be charged with court costs and expenses of the sale, the per centum and charges of the administrator in connection with the sale, allowance to the administrator for attorney’s fees in connection with the sale, payment for sale bond, and compensation to the auctioneer, and for special advertising. These payments have priority over a mortgage claim on the land so sold, when the proceedings to sell are in good faith and the mortgagee joins therein and the property is purchased by another than the mortgagee.

      David P. Schorr, for plaintiff.

      Heilker & Eeilker, for defendant.
   Hamilton, J.

Heard on appeal.

This case is heard on appeal from an order of distribution entered in the court of common pleas of Hamilton county.

Dora L. Klimper, administratrix of the estate of Dorothea G-. Klimper, deceased, filed her petition in the probate court of Hamilton county for leave to sell real estate belonging to th > estate, and upon a showing that same was necessary to pay the debts of the estate obtained an order for such sale.

It was alleged that the debts were about $5,230, that the charges of administration would amount to about $350, and that the total value of the personal estate of the decedent was less than $100.

All the heirs at law were made parties to the proceeding and consented to the sale of the property. Plaintiff, Henry Klimper, held the mortgage on the real estate described in the petition, to secure the payment of five notes of $500 each, aggregating $2,500, made in 1899, on which there had been made only one payment of $155. The principal and interest were somewhat in excess of $4,000 at the time of the sale. The mortgagee filed his answer and cross-petition, made no objection to the sale of the real estate, and prayed that his interest as such mortgagee might be protected and his mortgage declared the first and best lien on the preanises; and, if sold, that the proceeds arising from the sale be applied in payment of his claim as a first and best lien on the premises described.

Prior to the sale, the administratrix was required to execute a new bond which necessitated the payment of a premium of $25.

The real estate, upon which the mortgage was held by Henry Klimper, was appraised at the sum of $5,000. The real estate sold in the proceeding for the sum of $3,975, which was somewhat less than the amount of the mortgage claim of Henry Klimper.

It appears from the record that one small piece of unencumbered real estate was offered for sale and no bids received, and is yet unsold.

The two pieces of real estate constituted all the real estate belonging to the estate.

It appears that there is some dispute as to the ownership of six shares of gas stock, as to whether the gas stock is a part of this estate; and that question has not been determined by the lower court.

The record and the agreed statement of facts show that the proceeding to sell was in good faith. The real estate was not purchased by the mortgagee, but was purchased by a third party, and the proceeds paid to the administratrix.

The question here arises on distribution of the proceeds of the sale. The points involved are the court costs and expenses of the sale, the percentum and charges of the administratrix in connection with the sale, the allowance to the administratrix of an amount for attorney’s fees for legal services in connection with the sale, and an allowance for the payment of the sale bond. It is agreed that the amounts asked for, and as shown by the record, if proper charges against the proceeds of the sale, are reasonable.

Without undertaking to lay down a general rule that will apply to all cases, in view of the proceedings and facts above stated and disclosed by the agreed statement of facts and the record, under the provisions of Section 10809 G. C., and upon authority of Stone v. Strong, 42 Ohio St., 53, we hold:

First. That the costs and expenses of the sale are proper charges against the fund arising therefrom.

That the charge for additional bond required of the administratrix for the purpose of the sale amounting to the sum of $25, is a proper charge against the fund arising from the sale.

That the amount of $85.12, in compensation of the auctioneer and special advertising, is a proper charge against the proceeds of the sale.

That the amount of $198.75 is a reasonable allowance to the administratrix for counsel fees, rendered in connection with the sale of the real estate, and is a proper charge against the proceeds of the sale.

That the administratrix is entitled to a percentum compensation for the sale of the real estate, but that such percentum is to be computed upon the aggregate amount arising from the whole estate, graduated as provided by statute, and that the higher rate prescribed by the statute should be first calculated on all the other property of the estate before making any calculation of percentum on the proceeds of the sale of the mortgaged real estate.

Second. That above payments have priority to the payment of the mortgage claim.

Third. That the balance of the fund be applied to the payment of the mortgage claim of Henry Klimper.

A decree may be taken accordingly and a mandate issued to the probate court to carry this decree into execution.

Shohl and Cushing, JJ., concur.


source: Caselaw Access Project

author: Kunkle, J.

license: Public Domain

text:
    ACTION BY A RECEIVER FOR RECOVERY OF UNPAID STOCK SUBSCRIPTIONS NOT APPEALABLE.
    Court of Appeals for Hamilton County.
    The Union Savings Bank & Trust Company, Receiver, v. The Cincinnati & Columbus Traction Company et al.

    Decided, March 11, 1020.

      Corporations — Recovery of Unpaid Stock Subscriptions — Action for not an Action in Chancery and not Appealable.

    1. An action by a receiver of a corporation for the purpose of recover- ' ing unpaid stock subscriptions is not a chancery case and is therefore not appealable.
    2. Such action is not brought within the jurisdiction of a court of chancery by a prayer which seeks to recover only so much of the unpaid stock subscriptions as is necessary to pay the debts and obligations of the corporation and to equalize such payments among all the stockholders.

      O. B. Matthews for plaintiff in error.

      Murray Seasongood, Robert P. Goldman, Jacob Shroder and John G. Ilealy for defendants in error.

      Motion to require the Court of Appeals to certify ’its record in this case overruled by the Supreme Court, June 22, 1920.

   Kunkle, J.

Heard on error.

This is an action brought by the receiver of the Cincinnati & Columbus Traction Company against such company and numerous stockholders therein to recover from such stockholders certain unpaid stock subscriptions.

The petition was framed upon the theory of a bill in equity to recover such portion of the unpaid stock subscription owing by each of said defendant stockholders, as might be necessary to pay the obligations of said the Cincinnati & Columbus Traction Company, and also to equalize the payments made and to be made by the various stockholders upon such stock subscriptions.

The First National Bank of Norwood, Ohio, filed a cross petition in which it sought substantially the same relief upon behalf of itself as a creditor and upon behalf of all other creditors.

The case was submitted to the trial court upon various demurrers to the petition of plaintiff and also upon various demurrers to the cross petition of the First National Bank of Nor-wood.

The trial court rendered the following judgment upon such demurrers, namely:

“The court upon due consideration sustains the demurrers to the petition filed herein and to the cross petition of the First National Bank of Norwood upon the ground that there is a misjoinder of parties defendant and upon the ground that separate causes of action against the several defendants are improperly joined, and the plaintiff and cross-petitioner not desiring to plead further the petition and said cross petition are hereby dismissed as against all defendants demurring and judgment for costs is hereby rendered in favor of each of said defendants for costs herein.”'

The ease comes into this court upon appeal and also upon a proceeding in error from the judgment so rendered by the trial court.

We have carefully considered the authorities cited by counsel in their very exhaustive briefs. We shall not attempt to review or discuss the authorities in detail, but- will announce the conclusion at which we have arrived after a consideration of such authorities.

Regardless of what the rule may be in other jurisdictions we are of opinion that it is clearly settled in this state that an action by a receiver of a corporation for the purpose of reeovei’ing unpaid stock subscriptions is a proceeding at law and not in equity.

The rule as announced in the syllabus of the case of Smith, Receiver, v. Johnson, 57 Ohio State Reports, page 486, is as follows:

“(1) An action to collect an unpaid subscription to the capital stock of a corporation instituted by a receiver appointed under Chapter 5, Division 7 of Title 1, Revised Statutes, to wind up the affairs of the corporation is a suit at law to recover a money judgment.
“(2) It is not proper practice for such a receiver to join in one action all delinquent stockholders as defendants, those who reside out of the county where the suit is brought, as well as those who reside within such county and issue summons to another county to obtain service upon such non-residents.”

This case was approved and followed in the 94th Ohio State Reports, at page 138, and has not been disapproved nor criticised by any subsequent decision of our Supreme Court.

We think the attempt upon the part of the plaintiff to create an equitable case by asking for an equalization of payments made by stockholders upon their stock and the collection of only so much of the unpaid stock subscription as may be necessary to liquidate the obligations of the company does not change the nature of the cause of action set forth in either the petition or the cross petition of the bank. The cause of action in both the petition and the cross petition is to collect unpaid stock subscriptions.

• We can not escape the conclusion that the action is one at law in which various stockholders were improperly joined, and in which the causes of action against such stockholders were improperly joined.

We think the various demurrers to the petition and to the cross petition of the First National Bank of Norwood were properly sustained upon such grounds and the judgment of the lower court will be affirmed.

The appeal will be dismissed for the reason that the judgment rendered was in an action at law and not in a proceeding in chancery. Case of C. & C. Traction Co. v. Union Savings Bank & Trust Co. (9 Ohio Appellate Court Reports, 414; 31 O.C.A., 121), approved and followed.

Judgment affirmed. Appeal dismissed.

Allread and Ferneding, JJ. ,concur.


author: Adlread, J.

text:
    DAMAGES FOR CHANGE OF GRADE.
    Court of Appeals for Hamilton County.
    St. Bernard v. Gohman.
    Decided, February 6, 1919.

      Municipal Corporations — Street Improvement and Change of Grade — • Effect of Failure of Abutting Owner to File Claim for Damages— May Sue, When— Defenses Available to the Municipality — Whether a Grade is Unreasonable Must be Determined as of the Time of Its Establishment — Misconduct of Counsel — Charge of Court — Measure of Damages.

    1. Section 3830, General Code, relating to filing claims for damages re--suiting from an improvement by a municipality, does not purport to extinguish the cause of action, but is merely procedural; and was -designed to give the city an opportunity to investigate or settle and adjust the claim without cost.
    2. • In an action- for damages resulting from a change of grade in making a street improvement the question of the effect of failure of plaintiff to comply with Section 3830, General Code, must be raised by plea or motion by the city at the outset of the trial, and a failure to make the objection until the court comes to charge the jury constitutes a waiver.
    3. Section 3823, General Code, provides a defense to a cause of action for damages resulting from an improvement to the abutting owner upon the giving of a proper notice and upon failure of an owner to present a claim, and such defense may be made by an amended answer, the right to file which is within the court’s discretion.

      4. The question whether a grade established by a city council is unreasonable-must be determined as of the time of its establishment.
    5. A charge that the jury may take into consideration on the issue of the unreasonableness of an established grade an unofficial survey of the' city engineer made many years prior to the establishment of such grade; and that if the buildings upon- the lot were constructed to a reasonable grade at the time of their construction the owned was entitled to damages if the established grade was found unreasonable, is misleading and prejudicial.
    6. The measure of damages in cases where the established grade is unreasonable is the' difference between the - amount of damages which would have resulted to the property from the establishment of a reasonable and proper grade and that resulting from the grade actually established.
    7. Statements of a trial court in a general charge which would reasonably lead the jury to the conclusion that the measure of damages was the difference between the value of the property before the establishment of the grade and the value subsequent thereto are erroneous and misleading.
    8. Where the trial court in different portions of the charge states a correct and also an incorrect rule upon the measure of damages . and where from the whole charge in connection with the evidence it is uncertain which rule the jury adopted, the verdict and judgment should be set aside.
    9. The latitude allowed counsel in the argument of the case is in some measure a matter of discretion with the trial court. A reviewing court should not reverse upon the ground of misconduct of counsel in the argument of the case unless from the whole record it is clear that the trial court abused its discretion to the prejudice of the complaining party.

      John B. Quane, city solicitor, and Wilson, Fitzpatrick & Jones, for plaintiff in error.

      Otto Pfleger and Renner & Renner, for defendant in error.
   Adlread, J.

(of the Second Appellate District, sitting in place of Jones, J.).

Heard on error.

Elizabeth Gohman is the owner of four lots or tracts of land fronting upon Greenlee avenue in the city of St. Bernard. Her husband, who was her predecessor in title, improved the lots by the construction of dwelling houses, fronting upon Greenlee avenue. These improvements were made prior to the establishment of a street grade. On February 14, 1913, the city of St.. Bernard, through its council, established a grade for Green-lee avenue, extending along the property of Elizabeth Gohman. The effect of the grade and the construction of the street with reference thereto left one lot considerably above the grade and -the other three lots upon the other side of the street from one .to ,five feet, below. Elizabeth Gohman thereupon brought.,this a.cfion;.in the .insolvency court to recover damages.. .

Upon the trial she abondoned her claim for damages as to the lot which lay above the grade and prosecuted the case for the three lots lying- below.

The trial resulted in a verdict and judgment for $2,500, in favor of the plaintiff, and error is prosecuted by the city.

Several grounds are urged for the reversal of the judgment. The court was requested before argument to charge the jury-in substance that if a claim for damages- was not filed by the plaintiff more than sixty days before the bringing of the-action, the verdict should be for the defendant. It. is contended that such instruction should have been given under Section 3830, General Code. This section does not purport to extinguish the cause of action, but is merely procedural. It was designed to give the city an opportunity to investigate or settle and adjust the claim without cost. If the city desired to take-advantage of this provision, it was bound to make the question by plea or motion at the outset of the trial. City of Toledo v. Meinert, 15 C. C., (N. S.), 545. The failure to do so constitutes a waiver. The trial court properly refused such charge.

The defendant below, by an amended answer, invoked the provisions of Section 3823, General Code, which are as follows:

“An owner of a lot, or of land, bounding or abutting upon a proposed improvement, claiming that he will sustain damages by reason of the improvement, within two weeks after the service of the notice or the completion of the publication thereof, shall file a claim in writing wdth the clerk of council, setting forth the amount of the damages claimed, with a general description of the property with respect to which it is claimed the injury wall accrue. An owner who fails to do so, shall be deemed to have wawed such damages and shall be barred from filing a claim- or receiving damages. This provision shall apply to all damages which will obviously result from the improvement, but shall not deprive the owner of his right to recover damages arising, without his fault, from the acts of the corporation, or its agents.”

The amended - answer .-asserts that plaintiff, although duly served -with notice,: failed; to: file:-her claim ..within the.-time specified and therefore waived the same. There was a motion to strike the amended answer from the files, but the motion was overruled. Section 3823, General Code, provides for a complete defense to the cause of action, upon the giving of notice and upon failure to present a claim. This defense might be made by an amended answer, and the right to file such amended answer was within the court’s discretion. It is settled by decisions of our Supreme Court that Section 3823, General Code, is valid and will be enforced in cases clearly falling within its provisions. Railroad Co. v. Defiance. 52 Ohio St., 262, and Cohen v. Cleveland, 43 Ohio St., 190.

There was an issue as to the service and sufficiency of the notice. The burden of proof was upon the city to make out this defense. There was a conflict of evidence upon the question of notice. The clerk testified that he served the notice personally upon the plaintiff, and that he made a record or return at the time. This record was also produced. The plaintiff testified in her own behalf and denied the service.

Counsel for the city called to the court’s attention an affidavit on file in connection with the motion to strike the amended answer from the file. It does not appear from the bill of exceptions that such affidavit was before the jury and it can not be considered by the reviewing court as part of the evidence upon which the jury based its verdict.

We have reached the conclusion that while there is some doubt as to the weight of the evidence, the verdict is not so manifestly contra^ to the weight of the evidence as to justify a reversal upon that ground. The form of the notice and the ordinance for the improvement conform substantially to .the requirements of the statute, and it was not necessary to serve more than one notice upon the plaintiff in the Case at'bar,-'

The trial court refused to give charge No. 4 before argument. This charge was based upon the provisions of Section 3823, but we think it did not clearly emphasize the controverted question of fact, to-wit, the service of notice upon the plaintiff below. The jury might have been led by the giving of that.charge to overlook the” importance 'of the - preliminary ■ finding ,a.s -. -to whether the notice had been served. We find no error in the refusal to give charge No, 4. The law upon this subject was clearly and correctly stated in the general charge.

This brings us to the question of. the alleged unreasonableness of the grade of February 14, 1913.

In the ease of The City of Akron v. the Chamberlain Co., 34 Ohio St., 328, it is held:

“The owner of a lot abutting on an unimproved street of a city or village, in erecting buildings thereon, assumes the risk of all damage which may result from the subsequent grading and improvement of the street by the municipal authorities, if .made within the reasonable exercise of their power.
“Whether a grade be unreasonable or not, must be determined by the circumstances existing at the time the grade was established, and not by the circumstances existing at the time abutting lots may have been improved.”

This ease has been approved in the ease of the City of Akron v. Huber, 78 Ohio St., 372.

Considerable evidence is found in the record tending to prove an unconfirmed survey in 1893 or 1894 of a proposed grade of the street in controversy by Daniel S. Hosbrook, the village engineer, and of an opinion by him that such grade was a reasonable one; also that the then owner of the property relied thereon in the improving of his property. In the general charge the trial court says:

“In this connection you can take into consideration the testimony of the plaintiff in this case, tending to show at the time they consulted the city engineer, Mr. Hosbrook, as to the grade, and what he said to them. You can take that into consideration wrhen you come to determine the question of what is a reasonable grade. If the buildings were put up at that time to a reasonable grade, then the plaintiff would be entitled unquestionably to damages, provided, of course, you find that this which was subsequently established some twenty-one- years after-wards was an unreasonable grade under all circumstances.”

This charge is misleading in that it emphasizes too strongly • the significance of the survey and opinion of the' village engineer in. 1893, and would call for some definite charge by the trial court to the effect that the reasonableness or unreasonableness of the grade established in 1913 was to be determined as of the time when the grade was actually made.

As to the measure of damages, we think the rule is:stated in Hurst v. City of Akron, 23 C. C., (N. S.), 591:

“The measure of his damages in such ease will be the difference between damages which would have resulted to his property from the establishment of a reasonable and proper grade and that resulting from the grade as actually established.”

While there is one sentence, or perhaps two, in the general charge of the court, which correctly states the measure of damages, yet there are other statements of' a .misleading and, we think, prejudicial character. Among the statements we quote the following:

“The real question being what was the value of the property before the grade was established, and before the improvement was made, and what was the value of the property after-wards. ’ ’

Also the following:

“So if you find the owner’s grade,.that is to say, the grade they built the house on, and that grade was reasonable, and the grade established by the city of St. Bernard was unreasonable, then you must allow such damages as will accrue on account of the difference of the property.”

Also:

“If you find this grade unreasonable, the amount yon award to the property owner, the plaintiff in this case, is to be such an amount that when she leaves this court room she is no richer or poorer than when she came into, this court room, so that she can still say: my property has been injured, but I have received such an amount at the hands of the jury, I am as well off now as'-before.”

These statements do not actually state the measure of damages in .the case .at bar, and would have a- prejudicial effect upon the jury in estimating damages.

The correct rule in other parts of the charge is not so prominently or clearly stated as the opposite rule in the -charges above quoted. It is well settled in this state that where both a correct and an incorrect rule are given to the jury, and where from the whole charge it is uncertain which rule the jury adopted, the verdict and judgment should be reversed. The Pendleton Street Rd. Co. v. Stallman, Administratrix, 22 Ohio St., 1; The Aetna Ins. Co. v. Reed, 33 Ohio St., 283, and The Little Miami Rd. Co. v Wetmore, 39 Ohio St., 110.

The court in its general charge correctly stated the issues and then proceeded to discuss each branch.

On page 511 the court says:

“The pivotal question, the point in this ease, the amount of damages, revolves around the question of the- reasonableness of the grade.”

The court most likely intended this statement to be confined to the branch of the case involving damages, but nevertheless it was capable of being differently construed by the jury.

There are also some, sentences in the charge in reference to lateral support,, etc., which, after the withdrawal of the claim for damages as to the fourth tract, were not relevant to the case as presented.

The evidence as to the construction of a retaining wall or a fill was incidental. Such facts might be brought out as elements to be considered under certain circumstances, but they do not form the measure of damages.

The alleged misconduct of counsel in the closing argument is urged as ground for reversal.

We have considered that the closing argument of counsel for plaintiff below is a part of the record.

In the case of The Ohio & Western Pennsylvania Dock Co. v. Trapnell, 88 Ohio St., 516, it is held that the control of counsel during the trial of the case is in some measure a matter of discretion of the trial court. The reasoning is especially applicable in the case at bar. We do not have before us the argument of all the counsel. The scope of a closing argument depends somewhat upon those which precede. The trial court was, therefore, in a better position to determine whether any of this argument was provoked or justified by anything said by opposite counsel. The ease of Driscoll v. the Cincinnati Traction Co., 88 Ohio St., 150, eliminates as ground for reversal improper remarks of counsel upon general subjects We think' that the statements referred to in the closing argument of counsel do not of themselves constitute ground for reversal.

We have gone into the question argued somewhat fully to aid counsel and the court in retrial of the case.

For errors in the charge, above referred to, the judgment of the insolvency court is reversed, and the cause remanded for a new trial.

Hamilton and Shohl, JJ., concur.


author: Vickery, J.

text:
    PROPRIETOR OF HOTELS NOT SERVING MEALS LIABLE AS INNKEEPER.
    Court of Appeals for Cuyahoga County.
    Kanelles v. Locke.
    Decided, November 28, 1919.

      Innkeeper — Proprietor Liable for Loss of Valuables — Deposited with One Pretending to Act as Olerk — Application of the Doctrine of Agency by Estoppel — Status Before the Law of Hotel Proprietor not Furnishing Meals.

    A guest arrived at a hotel in the nighttime, was assigned to a room and deposited his money and valuables with a person who was apparently in charge as clerk or cashier, who issued a receipt to the guest but later absconded with his property. In an action by the guest to recover the value of the stolen property, the proprietor of the hotel denied the agency of the person who received the property and issued the receipt. Held-.

    1. The proprietor is liable under the doctrine of agency by estoppel, which is based upon the principle that where one designedly or negligently permits another to act as an apparent agent, any' loss, as "between two innocent parties, will fall upon tbe one whose conduct brought about the situation.
    2. The fact that the hotel did not furnish food or meals, but was conducted solely for lodging purposes, does not relieve its proprietor of the legal status of an innkeeper.

      Siegel & Siegel, for plaintiff in error.

      T. J. Boss, for defendant in error.
   Vickery, J.

Heard on error.

This cause comes into this court on petition in error from the municipal court of the city of Cleveland, the relation of the parties being the same as in the court below, where D. Kanelles brought an action to recover the sum of $744, being the amount of money and valuables that he deposited with a man in charge of the Hotel Ohio, owned and operated by Mrs. Ida J. Locke, the defendant, in which action he failed.

It seems that Mrs. Locke was running the Hotel Ohio, in 1627 Prospect avenue, Cleveland; that on December 23, 1918, at the hour of one o’clock in the morning, Mr. Kanelles applied, with a friend, and was received as a guest in said hotel, and paid the $2 for a room, to which they were assigned; that in the hotel were notices posted as is required of innkeepers under the law of Ohio; that after they were shown to a room Kanelles told the man who appeared to be in charge, and who showed them to the room, that he desired to leave his money and valuables with the hotel proprietor for the night, whereupon they all returned to the office and the man in charge wrote out a receipt describing $484 in currency, a diamond stickpin and two checks for $5 each; that the man signed this receipt with the name of the proprietress of the hotel, Mrs. Locke, by him, and gave it to Kanelles, after which he, Kanelles, retired; that in the morning he presented the receipt to Mrs. Locke, and requested the return of his money and valuables, whereupon he learned that this man who apparently was in charge of the office was not in the employ of Mrs. Locke at all, and, as she claimed, had no authority to receive the money or valuables; that upon going to the room -of" this man Mrs. Locke found that he had absconded, taking the money and valuables with him-; and that Mrs. Locke refused to make good the loss to her guest and the action was brought, resulting in a verdict for the defendant.

We have gone over this bill of exceptions carefully, and it shows that this man who signed the receipt, J. C. Clemons, was and had been for some time a roomer in this hotel. We further find that the hotel was open to receive visitors at this time in the morning, or night, and that no one was in the office to take charge of guests who might arrive except this persons Clemens and. a young lady who was also a boarded or lodger in the hotel; that when the plaintiff entered with his friend and asked for a room, Clemens, who appeared to be in charge, got up and went behind the counter, had them register, got .the bey from its proper place, assigned them to a room, and took them to their room; and that after they had gone to the room, when the plaintiff requested that the hotel take charge of his valuables, they went down to' the office, and with the help of the young ladv wrote a receipt which at first was not satisfactory, and. then wrote the receipt of which the following is a copy:

“Mir. D. Kanalos, Man in Room 111 Gave me 1 Diamond pin and $484.00 in bills and. 2 $5.00 cheeks. ■ ■

“Mrs. Locke

“Hotel Ohio

“per J. C. Clemens/’

During this time the only person who appeared in charge of th,e office was this man Clemens. Whether Mrs. Locke had turned over the office to him to do these things we are not able to determine; but the fact remains that he was the only person there, apparently in charge of a public office that was receiving guests at that time in the morning or night, and that plaintiff became a guest and had a right to turn his valuables over to the hotel for safe-keeping, in accordance with the notices published in the hotel. We think the plaintiff was warranted in believing that this man in charge was the duly authorized agent for the purpose of receiving guests axid receiving for safe-keepixxg valxx•‘ables' of the guests. : ....." ' ' ”

It is claimed by.the defendant that this man was not her agent and had no authorityto receive valuables or do anything around the. hotel, and that therefore she was not responsible for any money or valuables that might be deposited with him. We can not acquiesce in this doctrine. An agency may be created by estoppel, and that estoppel ma.y be allowed on the ground of negligence or fault on the part of the principal, upon the. principle that when one of two innocent parties must suffer loss, the loss will fall on him whose conduct brought about the situation. 2 Corpus Juris, 462, and eases cited.

Here the proprietress of this hotel left this man in the office either designedly or negligently, clothed with apparent authority to do what hotel clerks usually do, and one who came in for the purpose of becoming a guest, and did become a guest, might reasonably conclude that he had apparent authority to do what clerks under similar circumstances would have a right to do.

, In Curtis v. Murphy, 63 Wis. 4, we find this doctrine:

“A traveler who goes to a hotel at night'and finds a clerk in Charge of the office, assigning rooms, etc., has the right to assume ■that such clerk represents the proprietor and has authority to take charge of money which may be handed him for safekeeping. ’ ’

And in that case the Supreme Court of Wisconsin held the hotel keeper responsible under circumstances similar to those in the ease at bar.

In 34 Ruling Cas Law, 533, we find this doctrine:

“A delivery of goods to one not authorized to receive them is not a delivery to the innkeeper, but a person need not be expressly authorized to receive the property. A guest is .justified in assuming that a clerk in charge of the office of the inn represents the proprietor and has authority to taire charge of money which may be handed to bim for safekeeping, and a deposit with an employee of the innkeeper, who by his conduct and position in the hotel, leads one to infer that he represents the innkeeper for the. purpose of receiving property 'for safekeeping, is deemed a deposit with the inkeeper for which he is responsible as such.”

•■'•Above authority cites niay eases,- among which is Houser v. Tully, 62 Pa. St., 92, where we find the doctrine laid down that an innkeeper is bound to pay for goods stolen in his house from a guest unless stolen by the servant or companion of the guest. And in the same ease: “In case of a.loss at an inn, the innkeeper is liable, although sick or absent. ’ ’

Again, in the same ease:

“An innkeeper is not liaible for the loss or embezzlement of his guests’s money when he does not deposit it on the security of the inn, but intrusts it to another guest or inmate in whom he reposes his confidence.”

These authorities, and others, show that where an innkeeper has permitted one to occupy a position which would tend to mislead the public, he can not divest himself of the liability; for the agency of the person presuming to act under such circumstances is created by estoppel, and cases of estoppel are limited to those in which there is no real, but only apparent agency, and here was an apparent agency. Accordingly we think the principle alluded to above, namely, that where one of two innocent persons must suffer loss, the loss will fall on him whose conduct brought about the situation, is applicable here. In the case, Pittinger v. Alpena Cedar Co., 141 N. W. Rep., 535, this doctrine is again established and elaborated upon.

But it is said that the defendant in this action was not an innkeeper within the meaning of the law of innkeepers, because, forsooth, the Ohio Hotel does not furnish food as well as lodging. We can not accede to this doctrine, for, if it were established, po hotel run under the European plan would come under the law of innkeepers, nor would it be liable for loss of goods delivered to a person apparently representing the hotel. It is true that early in the history of law an innkeeper furnished all sorts of entertainment, including liquid entertainment, and food especially; but the modern custom of conducting hotels would necessarily create a departure from the rigid doctrine of the early law eases.

In the case at bar Mrs. Locke, the defendant, had complied with all the requirements of the statute to relieve innkeepers from liability by posting the notices required by law, and we think that she was an innkeeper within the meaning of the law; we think that she by her voluntary act or by her negligent act, had placed someone in a position where it would appear to anyone coming in to become a guest at the hotel that he was properly in charge, and that therefore she made herself by her conduct responsible for his acts, acting within the apparent scope of a clerk or employee in a hotel, to receive property of her guests; and we think the court was clearly wrong in holding that there was no responsibility and in rendering a judgment against the plaintiff for costs. For these reasons the case will be reversed and remanded to the municipal court for further proceedings in accordance with law.

Dunlap and Washburn, JJ., concur.


author: Shohl, P. J.

text:
    DEFINITION OF “SPECIFIC GOODS” UNDER THE SALES ACT.
    Court of Appeals for Hamilton County.
    Judge Richards of the Sixth District sitting in the place of Judge Hamilton.
    W. N. Clark Co. v. Banner Packing Co.
    Decided, December 15, 1919.

      Contracts — Condition Subsequent — Sow Pleaded — “Specific Goods” are Goods Already Made, and not Goods to be Manufactured to Specifications — Buyer Need not Allege Readiness to Pay for Goods not Delivered, When.

    1. A condition stipulated in a contract, on the happening or performance of which the contract already in effect may be defeated, constitutes a condition subsequent. In an action on a contract containing such a condition, the plaintiff need not allege that such condition has not happened. If the defendant relies upon it as a defense, he must allege and prove that it did happen.
    2. Under the sales act, “specific goods” are existing goods agreed upon and identified at the time the contact to sell or a sale is made. The fact that goods to be made in the future must accord with specification does not make them “specific goods.” ' _ . ""

      3. Where a buyer is not required under the terms of the contract to pay until ten days after delivery, he is not obliged to prove that ho was ready and willing to pay for goods that were never delivered.

      Milton Clark and P. H. Rue, for plaintiff in error.

      Howard W. Ivins and Elzroth & Maple, for defendant in error.
   Shohl, P. J.

Heard on error.

In December, 3915, plaintiff in error, which was also the plaintiff below, entered into a contract on the printed form furnished by defendant,- whereby it agreed to purchase, and the Banner Packing Company agreed to deliver, 5,000 cases of canned corn at 60 cents per dozen, f. o. b. factory. Shipment was to be made as soon as packed and ready for delivery, terms iy:i per cent, off cash in ten days. ‘ ‘ In case of the destruction of the canning factory, seller is not liable for non-delivery.”

In 3916, when part of the corn had been shipped, the contract was modified by the parties by an agreement that the 2,000 cases then remaining undelivered should be furnished out of the pack of the following year, at the 1916 price.

In April, 1918, plaintiff brought suit alleging merely a contract for the delivery of the corn, and that defendant had packed sufficient corn to make delivery, and could have delivered it, but that defendant failed and refused to deliver any of the 2,000 cases, though plaintiff made demand and was ready and willing •to pay. Plaintiff prayed for damages for breach of contract.

Defendant in its answer set up that the agreement contained a condition that in case of the destruction of the canning factory, defendant would not be liable for non-delivery. It further alleged that'it completed its 3937 pack oh October ll’, 19i7';"that on October 14, 1917, a part of its factory, in which its pack for that year was stored, was totally destroyed by fire, thus render ing the corn unfit for market- and making it impossible to deliver the corn to plaintiff. In its reply plaintiff admitted the contract as averred by defendant; and -denied “that the canning factory, or any part thereof,'was;destroyed by fire .on the 14th.day of October, 1917, or at any óthér timé. ” "

A jury trial was had. There was some incidental reference to a fire in the testimony of officers of the defendant, given as if under cross-examination, pursuant to Sec. 11497, General Code. It may be noted that plaintiffs were not concluded by the testimony so given; but the evidence fell short' of establishing the destruction of the canning factory. At the conclusion of plaintiff’s testimony the court instructed the jury to render a.verdict in favor of the defendant, for the reason that the contract ivas conditional and plaintiff had failed to offer evidence tending- -to prove that there had not been a destruction of the canning factory.

The contract required'the defendant to furnish the com, f. o. b. factory, in 1917. . The provision as to the destruction of the factory stipulated a contingency on the happening of'which defendant should be discharged from liability. Such a condition is a condition subsequent, by the happening or performance of which a contract, already in effect, may be defeated. Title Guarantee & Surety Co. v. Nichols, 224 U. S., 346, 351. In an action on a contract which refers on its face to such a contingency, the plaintiff need not allege that .such a contingency has not happened, but if the defendant' relies upon 'it as a défense he must allege and prove that it did happen. 9 Cyc., 727; 13 Corpus Juris., 718; Smokeless Fuel Co. v. Seaton & Sons, 105 Va., 170 (52 S. E., 829); Woofers v. International & G. M. Rd. Co., 54 Tex., 294; Root N. Childs, 68 Minn., 142 (70 N. W. 1087); Hudson v. Archer, 4 S. D., 128, 136; Moody v. Ins. Co., 52 Ohio St., 12. See also Mumay v. Western & Southern Life Ins. Co., 97 Ohio St., 1.

The court therefore erred in holding that the burden of proof in respect to the destruction of the canning factory was on the plaintiff. To prevent recovery on that ground the burden is on the defendant to show that there was a ! ‘ destruction on the canning factory.”

The case of Leisy & Co. v. Zuellig, (7 C. C., 423; 6 Circ. Dec. 175), cited to support the view of defendant, was one where there was an issue as to the existence of the contract claimed by plaintiff. In the ease at bar the contract stands admitted in the pleadings and there remained only the question of performance and excuse for non-performance of it.

It is contended, however, that the judgment of the court was correct, even if the reason assigned by it was erroneous. It is urged that the contract was one to sell specific goods, and that under paragraph 1 of See. 8388 G. C., the contract is avoided if the goods wholly perish. It might be sufficient to point out that the evidence did not establish that the goods wholly perished. The argument, however, is based upon an incorrect interpretation of the phrase “specific goods.” Specific goods are existing goods, agreed upon and identified at., the time a contract to sell or a sale is made. Section 8456 G. C., paragraph 1. The fact that goods are to be made in the future in accordance ivith specifications docs not render them specific goods. They are “future, goods.”

Defendant urges that plaintiff failed to prove that it was ready and willing to pay defendant as alleged. This must be considered in view of the sequence of performance fixed by the parties in their contract. Plaintiff was to receive the goods f. o. b. defendant’s factory, and was not required to pay till ten days thereafter. He was not obliged to be ready to pay until after defendant had made the shipment. Williston, Sales, Sec. 448.

The argument, therefore, that the judgment may be sustained for reasons different from those given by the trial court can not be sustained. The judgment will be reversed and the cause remanded for a new trial.

Cushing and Richards, JJ., concur.


text:
    REGULATION OF THE SALE OF NARCOTICS.
    Court of Appeals for Hamilton County.
    Raphael W. Miller v. State of Ohio.
    Decided, March 17, 1920.

      Constitutional Law — Validity of Statute Regulating Sale of Cocaine— Use of Narcotics by a Physician in his Practice — What Constitutes “Proper Practice" in such Cases is a Question for the Jury.

    1. Section 12672, General Code, regulating the sale and furnishing of narcotics is constitutional and valid.
    2. The following provision of said section, viz.: “When prescribing for their patients for actual and necessary purposes and in the proper practice of their respective professions” is not void for uncertainty. The question as to what constitutes “proper practice” should be submitted to the jury as a question of fact and should be determined from all the facts and circumstances surrounding the case and from the expert and other evidence submitted.

      Cohen, Mack tv Eurtig for plaintiff in error.

      George T. Poor, for defendant in error.
   Kunkle, J.

Heard on error.

Plaintiff in error, a physician, was jointly indicted with one Ashnr Miller, a druggist. They were charged

“With unlawfully and knowingly selling and furnishing unto one Stella Rogers on September 13th, 1916, a quantity of morphine, to-wit 7% grains thereof, said sale and furnishing of morphine aforesaid not then and there being upon an original or written prescription of a physicial, dentist or veterinary surgeon duly licensed under the laws of Ohio, issued in prescribing for said Stella Rogers for actual and necessary purposes in the proper practice of their respective professions,” etc.

Plaintiff in error was convicted in the municipal court of Cincinnati as he stood charged in the affidavit.

Ashur Miller was acquitted by the jury. Plaintiff in error was sentenced to pay a fine of $500 and to serve three months in the county jail.

Error was prosecuted from the judgment of the municipal court to the court of common pleas. The judgment of the municipal court was affirmed by the court of common pleas.

Error is prosecuted to this court from the judgment of the court of common pleas affirming the judgment of the municipal court.

Various errors are assigned in the petition in error and also in the brief of counsel for plaintiff in error.

The affidavit above referred to was based upon Section 12672, General Code, which provides that:

“Section 12672. Whoever sells, barters, furnishes or gives away, directly or indirectly, * * * any quantity of morphine except upon the original written prescription of a physician, dentist or veterinary surgeon, duly licensed under the laws of this state, when prescribing for their patients for actual and necessary purposes in the proper practice of their respective professions * * * shall be fined not less than twenty-five dollars, nor more than five hundred dollars, or imprisoned in the county jail not less than thirty days nor more than six months, or both at the discretion of the court.”

The sufficiency of the affidavit in the case at bar has been challenged by motion and demurrer upon the ground that the statute upon which the prosecution is based is indefinite, uncertain and unconstitutional.

It is conceded that the affidavit contains the essential features of the statute governing such cases but it is claimed that the statute is void for the reasons above suggested.

The principal objection to the statute relates to the following clause thereof, namely:

“When prescribing for their patients for actual and necessary purposes in the proper practice of their respective professions.”

It-is urged with considerable force that this clause is too indeñnite and uncertain to support a criminal charge.

The constitutionality of the Federal act known as the Harrison anti-narcotic act has been upheld by the Supreme Court of the United States in the case of United States v. Doremus, 249 U. S. Reports, page 86.

The case of Webb & Goldman v. United States, 249 U. S. Reports, page 96, was also decided by the Supreme Court of the United States, upon the same day that the Doremus case was decided, and involved a construction of the Federal act known as the Harrison anti-narcotic act. The Harrison anti-narcotic act was also upheld by the United States Supreme Court in this ease.

Section 12672, General Code, is framed upon the same general lines as the Harrison anti-narcotic act but is somewhat broadc-r in certain respects.

We think the principal feature of the Ohio act which was not involved in the Federal act above, referred to is the clause in relation to the ‘ ‘ proper practice, of their respective professions. ’ ’

We have carefully considered the authorities cited by counsel in their exhaustive briefs upon the constitutionality of Section 12672, General Code, .and without undertaking to discuss these authorities in detail will state that our examination thereof has led us to the conclusion that the provisions of Section 12672, General Code, in so far as the same are involved in the present-prosecution, are constitutional.

The latest expression of our Supreme Court upon the constitutionality of a statute somewhat similar to the one involved in this case is found in the ease of State of Ohio v. Schaeffer, 86 O. S., 215. The Schaeffer case involved the construction of Section 12603, General Code, relating to the operation of automobiles. This section makes it an offense to operate an automobile,

“at a speed greater than is reasonable or proper, having regard for extent, traffic, use and the general and usual rules of such road or highway, or so as to endanger- the property, life or limb of any person.”

It was claimed in the Schaeffer case that the words “reasonable” and “proper” were so general, comprehensive and variable that.it would be impossible for a person to know, or for the jury to fairly determine what did and what did not constitute a violation of the statute; that one jury might hold a speed to be reasonable while the same speed under similar circumstances might be held by another jury to be unreasonable. In the case at bar it is also urged with considerable force that one might find it “proper practice” to treat a person addicted to the use of morphine by the reduction method of treatment, whereas another jury might find the proper practice would consist of the withdralal of all morphine from the patient. The Supreme Court held in the Schaeffer case that Section 12603, General Code, was as definite and certain on the subject-matter and the numerous situations arising thereunder as the nature of the case and the safety of the public would reasonably admit.

Applying the reasoning in the Schaeffer case to the case at bar, we are inclined to think that Section 12672 General Code, is constitutional and that the provision referred to is not so uncertain or indefinite that a criminal prosecution can not be based thereon.

Various rulings made during the progress of the trial are also complained of.

The principal objections urged by counsel for plaintiff in error and which were made during the trial of the ease relate to the introduction of evidence; the charge of the trial court and the refusal of the trial court to give certain special instructions requested by counsel for plaintiff in error.

We have carefully considered the special charges requested by counsel for plaintiff in error and which were refused by the trial count.

Several of the special charges which were given by the trial court, at the request of plaintiff in error, substantially covered the important features of the case.

Among the special charges requested and refused was No. 11. We think this charge was properly refused as it made the judgment of plaintiff in error final. The giving of this charge would in effect repeal the statute.

Special request No. 12 we think was also properly refused. This charge states that the defendants must be acquitted unless the method eanployed for the treatment of Stella Rogers was not a recognized method of treatment. Under this charge if the treatment prescribed was considered by this particular doctor, his druggist and the patient as a recognized method of treating such cases, but was not so considered by any other person, then it might be considered as a recognized method of treatment and the purposes of the statute annulled. Special charge No. 17 we think was properly refused. It was too broad and would in effect repeal the statute. If the administration of morphine by any physician is permissible, provided such physician says he considers such treatment effective, then the statute is of little, if any, benefit.

We think the trial court also properly refused special charge No. 18. This special charge is too broad, and if given would have excluded the consideration by the jury of sales made to Stella Rogers before and after the 13th day of December, 1916.

We think such sales made to Stella Rogers before and after September. 13th, 1916, were competent to be considered by the jury as reflecting upon the issue as to whether the plaintiff in error was engaged in the “proper practice” of his profession in issuing the prescription of September 13th.

The trial court among other special charges gave Nos, 7,13 and 15. These special charges are as follows:

“7. If the jury should find that Stella Rogers was an addict of morphine, and sought the services and assistance of the defendant, R. W. Miller, for the cure of that habit, and if it should appear that the prescription relied upon for conviction was given for the actual and necessary purposes in the treatment of the said Stella Rogers, the jury must return a verdict of not guilty as to both defendants.”
“13. If the defendant, R. W.' Miller, in good faith adopted the method of treatment of Stella Rogers known as the reduction method, and the prescription referred to in the affidavit was written by him in good faith, for actual and necessary purposes of such treatment of Stella Rogers, you must acquit both defendants of the charge.’
‘ ‘ 15. Unless the state proves beyond a reasonable doubt that the prescription alleged to have been written on September 11, 1916, was not for the actual and necessary purposes of the treatment of Stella Rogers (also known as Stella Wilson), both the defendants must be acquitted. In determining whether or not the said prescription was given for such actual and necessary purposes of said Stella Rogers, the jury must take into account her condition on said date, and the necessities of her case, as it existed at that time.”

The trial court in its general charge to the jury on pages 393, 395, etc., also instructed the jury to the same effect.

We are of opinion that the special charges given at the request of counsel for plaintiff in error not only contained a correct construction of the statute in question, but also presented to the jury the most favorable view to which the plaintiff in error was entitled.

The state introduced evidence showing the entire treatment prescribed by plaintiff in error for Stella Rogers. In brief the treatment commenced on or about July 18th, 1916, and continued until on or about October 19th, 1916. The treatment began by prescribing ten grains of morphine daily and was gradually reduced to six and a quarter grains per day. In September the amount was increased to seven and a half grains because of the physical condition of the patient and then gradually reduced to less than five grains on or about October 5th.

The principal issue before the jury was whether the treatment so prescribed by plaintiff in error and as shown in detail by the record was for “actual and necessary purposes in the proper practice of his profession.”

The state offered the testimony of certain medical witnesses to the effect that the proper practice in the medical profession in the treatment of eases of this kind would consist of abrupt withdrawal of all morphine and the confinement of the patient and that any treatment of the patient without confinement would in the opinion of such witnesses be impractical and improper.

The witnesses for the defendant testified that the gradual reduction method is recognized especially in cases where the patient is not under confinement.

The question as to whether plaintiff in error in this particular case under all the circumstances pursued the “proper practice,” that is the practice as prescribed by the statute, was submitted to the jury as a question of fact.

For the purpose of determining this question of fact the jury was entitled to consider not only the treatment as actually prescribed by plaintiff in error, but also all the circumstances surrounding the ease and the expert testimony which was offered.

From a consideration of the entire evidence we are of opinion that there is evidence which would warrant the jury in. returning the verdict which it did and the state of the evidence is such that a reviewing court would not be justified in disturbing the verdict upon the weight of the evidence.

The rule governing reviewing courts even in criminal case is well stated in the case of Breese v. State of Ohio, 12 Ohio State Reports, page 146, the fourth paragraph of the syllabus of which is as follows:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and a reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.”

"We have considered all of the errors complained of by counsel for plaintiff in error, but finding no error in the record which we consider prejudicial to plaintiff in error the judgment of the lower court will be -affirmed.

Allread and Ferneding, JJ., concur.


author: Shohl, J.

text:
    RENEWAL OR EXCHANGE OF CORPORATE NOTES NOT AN EXTINGUISHMENT OF THE ORIGINAL OBLIGATION.
    Court of Appeals for Hamilton County.
    Kuerze v. The Western German Bank et al.

    Decided, February 8, 1919.

      Corporations — Enforcement of Stockholders’ Double Liability — Right of Action for does not Accrue on Appointment of a Receiver — Original Obligation not Extinguished by the Giving of a New Note — Transfer of Assets from Executrix to Legatee not Accomplished Without Some Affirmative Act, Although They are One and the Same Person.

    1. A right of action of creditors against stockholders of a corporation to enforce their statutory liability does not accrue upon the appointment of a receiver, but commences only when the corporate property is put in liquidation for the benefit of creditors, and a suit to enforce stockholders’ liability instituted within eighteen months thereafter is not barred by Section 8688 G. C.
    2. A corporation incurred obligations evidenced by promissory notes at a time when double liability was imposed upon stockholders. Subsequent to the change from double liability some of the outstanding notes remained unpaid in their original form, some of which were reewed by exchanging them for new notes, others were replaced by new notes because the old notes were completely covered by endorsements, while others were taken up at maturity and new notes issued by going through the form of making a new loan and paying off the old note. In such case the presumption is that the new notes are taken as conditional and not absolute payment of the original obligation, unless a different intention of the parties is shown; but where a referee finds the intention of the parties was that the obligation should continue to exist, double liability may be enforced in respect to all of the notes.
    3. A widow, who, as executrix and residuary legatee under her husband’s will, elects to take under the will, causes a part of the shares of stock standing in the name of her husband to be transferred to her own name and accepts a real estate dividend from the corporation in her own name, does not thereby constitute herself the equitable owner of all the stock of her former husband. There must be some affirmative act to transfer assets from the executrix to the legatee although they are one and the same person.

      Anthony B. Dunlap, for plaintiff in error.

      J. W. Peck, for defendants in error.

       Affirmed by the Supreme Court, December 22, 1919.

   Shohl, J.

Heard on error.

The original action herein was brought by the Western German Bank to assess the stockholders of the Gerke Brewing Company, an Ohio corporation, which went into the hands of a receiver June 20, 1911. There was a reference to R. A. Le-Blond, as referee, who filed his report and findings in favor of the plaintiff. This was confirmed and judgment was rendered for $120,931.64 by the court of common pleas.

The Gerke Brewing Company borrowed various sums of money from the bank in the years 1894 to 1896, inclusive. The notes were not all in the same form, some being discounted and the interest taken out in advance, while some bore interest in accordance with their terms. The notes were renewed from time to time, one of them having been renewed fifty-seven times.

There was also a series of notes made by the brewing company which were made payable to George Gerke, a former stockholder, who had sold out his interest in the brewery to Robert M. Kuerze, his brother-in-law, who was the president of the brewery. The brewing company owed money to Kuerze, who, in turn, owed $6.0,000 to Gerke. He directed the making of the notes payable to Gerke direct, and the bank thereafter acquired the rights of Gerke in the notes.

There is nothing shown that would impugn the validity of the notes, which the evidence shows were originally given long before the year 1903.

The interest had been paid on all the notes until 1911, when the company went into the hands of a receiver.

At the time of the receivership the brewing company was solvent, and the appraisement made at the time under the direction of the court showed that the assets exceeded the liabilities by over $200,000.

On October 29, 1912, the assets of the corporation were put in liquidation for the benefit of the creditors.' The sale of the assets was completed in October, 1913, and, after the payment of certain preferred obligations, the assets proved sufficient to pay only a dividend of 10 per cent, to the creditors. The action to enforce the double liability followed. The change in the Ohio Constitution which did away with double liability of stockholders went into effect in November, 1903.

Several points are urged by plaintiffs in error.

The first contention argued is that the statute of limitations barred plaintiff’s right; that if the right of action accrued at the time of the receivership, the double liability suit was brought too late. The law of Ohio, however, is that a right of action does not accrue against the stockholders of a corporation Simply because a receiver has been appointed. The creditors’ right of action against the stockholders only commences when the property is put in liquidation for the beuefit of the creditors. Younglove v. Lime Co., 49 Ohio St., 663, and Bronson v. Schneider, 49 Ohio St., 438. This suit was brought within eighteen months of that time and was not too late under the statute, Sec. 8688, G. C.

The question was raised as to the sufficiency of the proof to establish that the primary liability of the corporation had been exhausted. The record shows, however, that the stock in the corporation had been issued and outstanding, as paid up, since 1881. In any event, the stockholders owed a duty to pay for their stock at that time, and claims against them' on their original subscriptions had become barred by the statute of limitations, fifteen years from the time fixed in the call for payment shown by the books in evidence to be December, 1881. Warner v. Callender el al., 20 Ohio St., 190.

It is clear that no double liability 'could be imposed upon stockholders for any contract made subsequent to the change in the law in November, 1903.

It is equally plain that as to any obligations existing prior to the change in the law, the stockholders’ liability remains unimpaired. Emerich v. People’s Coal Co., 21 C. C. (N. S.), 83, and Scofield v. Excelsior Oil Co., 6 C. C. (N. S.), 169, affirmed, 71 Ohio St., 513.

If, then, the obligations existing against the company when the double liability suit was brought are obligations which existed prior to November, 1903, double liability can be enforced.

The evidence in respect to the renewals shows that a slightly 'different course was followed in different instances. Certain notes dated prior to the amendment of the constitution are still outstanding and unpaid in their original form. Certain notes were owned simply by annually exchanging them for new notes. Among these is a note for $20,000 in favor of the bank, which the referee found was replaced by a new note given because the reverse side of the old note during the ten years that it had been outstanding had become completely covered with endorsements of interest marked thereon. The Gerke notes aggregating $60,000 were renewed by simply exchanging the maturing notes for new notes of like amount from time to time. As to the two notes for $5,000 each, the referee found that they were the last renewals of a long chain of notes, one of which was originally for $10,000. The renewals in these instances were accomplished as follows: The Gerke Brewing Company would be notified of the maturity of one of its obligations, and would present to the bank a new note of like tenor and amount except as to date and maturity. The bank went through the form of making a new loan, and the avails were then used by the check of the brewing company to pay the old note, which was returned to the maker.

In several instances it appears that the brewing company had sufficient funds in the hands of the bank subsequent to November, 1903, to meet the checks drawn by them in payment of the notes due on those dates, without requiring the use of the avails of the discounts of that day. This is true of the $5,000 note, and also the other $5,000 note which represented an unpaid balance on an original $10,000 note. The reduction, in the amount of the latter was made in 1905, when the brewing company had $13,000 to its credit in the bank irrespective of the new discount.

It is contended on' behalf of plaintiffs in error that each renewal constituted the making of a new contract, and the payment of the then outstanding note. If such contention is established, it follows that such notes now sued upon are new contracts made subsequent to the abolition of double liability and can not be the basis of a recovery on such double liability. This question was fully argued. The decisions throughout the various states are not uniform as to this question. See Cook' on Corporations (7 ed.) Sec. 225A. The subject has been so fully treated in the Ohio cases that we regard the decisions of the other states as not controlling.

The decision in the case of First Nat. Bank of Wellston v. Patton Co., 13 C. C. (N. S.), 289, growing out of the claims for double liability against the stockholders of The Patton Company, was affirmed by the Supreme Court in Wright, v. First Nat. Bank of Wellston, 87 Ohio St., 497, and is binding upon this court. We have examined the record and the original briefs of that case in the Supreme Court, and, among others, have also examined the following eases: Chase v. Brundage, 58 Ohio St., 517; First Nat. Bank of Athens v. Green, 40 Ohio St., 431; First Nat. Bank of Athens v. Slemmons, 34 Ohio St., 142; Rawson v. Taylor, 30 Ohio St., 389; Sutliff v. Atwood, 15 Ohio St., 186; Leach v. Church, 15 Ohio St., 169; Merrick v. Boury & Sons, 4 Ohio St., 60; Crumbaugh v. Kugler, 3 Ohio St., 544, and Rauenschild v. Standard Coffin Co., 8 N. P., 124; 10 Dec. 536.

The law is that where a new note is given to take up an indebtedness, the presumption is that it is in conditional payment and not absolute payment of the obligation. It will be absolute payment of an obligation if such is the express or implied agreement of the parties. It follows, therefore, that the giving of the new notes constituted payment of the old obligations if, and only if, that was the intention of the parties.

While a note is a mercantile specialty, and for some purposes may be regarded as the obligation itself, it is possible to have an obligation independent of it, and of which it is merely the evidence. Dick v. Hyler, 94 Ohio St., 351, and First Nat. Bank v. Patton, supra.

The referee and the court below found in the case at bar that the intention of the parties was that the old obligation should continue to exist, and that the several renewals constituted but a change in the evidence of the debt. "While we might not be disposed to take the same view of the evidence, we do notf regard the findings as against the manifest weight of the evidence, and therefore we can not set them aside.

The findings of fact by the referee are- given the same effect as a special verdict of a jury. Lawson v. Bissel, 7 Ohio St., 130, 133, and Cincinnati & E. Elec. Ry. v. Ritty, 21 C. C. (N. S.), 568. See also Merrick v. Boury & Sons, supra.

Our doubts are strongest as to the instances in which the notes were renewed at the time that the brewing company had ample funds in the bank. It is not possible, however, to renew or continue an existing obligation at a bank merely because there are adequate funds available there for its payment. We hold, therefore, that the double liability arises in respect to all of the notes held by the bank.

Interest recoverable as damages follows the principal as an incident to it unless it is separated and set apart as a particular debt. Ohio City v. Cleveland & T. Ry., 6 Ohio St., 490, and 22 Cyc., 1570.

If there was a double liability as to the amount of the notes, the interest would follow the same rule.

Robert M. Kuerze died June 10, 1903. His will named Elizabeth Kuerze, his widow, as residuary legatee. She accepted the appointment, qualified as executrix, and elected to take under the will. At that time she was already the owner of 2,900 shares of stock in the brewing company. On August 24, 1903, she caused 700 shares of the stock standing in the name of her husband to be transferred to her own name, thus increasing her holdings as shown by the books of the company to 3,600 shares.

On September 30, 1908, the Gerke Brewing Company declared a dividend of 22V2 per cent., payable in real estate. This was ordered by the company to be transferred to Elizabeth Kuerze in her individual name.

Defendants in error contend that the transfer of the 700 shares constituted an acceptance, of the legacy, and thereby made Elizabeth Kuerze at least the equitable owner of all of the stock of her former husband. It is urged that she can not accept the legacy in part, and reject in part, and that by accepting the dividends she is estopped to deny her ownership of the stock.

It is true that Mrs. Kuerze, by her election to take under the will, is disabled from contesting its validity.

In regard to the estoppel, it is sufficient to say that the bank was not misled by any misrepresentations made by her. There is no basis for any estoppel in the sense in which the word is used by counsel. Ellard v. Ferris, 91 Ohio St., 339, 353. See also Colored Industrial School of Cincinnati v. Bates, 90 Ohio St., 228.

Nor does her transfer of the 700 shares constitute her the owner of the shares not transferred. It would rather indicate that she was not their owner. The claim overlooks the distinction between a specific and a general legacy. While the right, of a distributee vests at the death of a testator (Armstrong v. Grandin, 39 Ohio St., 368, and Conger v. Barker’s Admr., 11 Ohio St., 1), it is subject to distribution. A residuary legatee is entitled only to what remains after all the debts of an estate are paid. It is only after such payments have been made that an executor should pay the legacies at all. In any event, however, there must be some affirmative1 act to transfer any assets from the executor to the legatee. This subject is covered in 2 Schouler, Wills (5 ed.), See. 1488, a part of which is as follows :

“Where an executor is himself a legatee, assent to his own legacy is needful. And, until his express or implied assent" to the legacy has been given in such case, the qualified executor holds the specified thing or fund in his representative capacity, even though all the debts have been paid; for the rule is, that one’s assent can not be inferred from acts equally applicable to the title of legatee and executor. If the executor is residuary legatee he occupies1 such dual relation to the estate that' the court retains control of his official acts until the estate is administered and the residue turned over properly.”

The foregoing is in accord with 2 Williams, Executors, pp. 1225, 1233 (bottom paging).

The point is treated in Roebling Sons Co. 1. Shawnee Valley Coal & Iron Co., 4 N. P. (N. S.), 113, 116, 117.

It is urged, however, that the real estate “dividend” was a dividend upon all the stock, including that which is in the name of Robert M. Kuerze on the books. If there had been a dividend in cash it would have been an asset of the estate, like any other asset, and the payment thereof as a partial distribution would not constitute a distribution of the stock on which the dividends accrued.

When a company makes a distribution of its assets in the form of a dividend in real estate, it is not unreasonable for the executrix to take the stock in her own name individually, but for the estate. Nor would it be improper in making- partial distribution of the estate to make the deed direct to her as an individual, and for her own benefit. Complications might and no doubt would ensue if the real estate were to come into her hands as executrix and she were to execute a deed as executrix. Executors and administrators normally do not administer real estate.

In regard to the liability of a legatee who has assented to take a general legacy the case of Matter of Bingham, 127 N. Y., 296, is in point. The question there arose upon double liabiity of national bank stock, which the administrator had never transferred to himself on the books, although he had accepted the legacy. The court say:

“The residuary interest in the stock after payment of the debts of his intestate belonged to him, but while he held the relation of administrator, which he could terminate only through a final judicial settlement of his accounts, it is not seen how he could be treated as having the legal title to the stock other than in his representative capacity. An administrator may, however, after the _ expiration of the time prescribed by statute for the presentation of claims by creditors, make distribution of the assets to the next of kin, and hot be chargeable to those whose claims were not presented. (2 R. S., 89, Sec. 39; Erwin v. Loper, 43 N. Y., 521). This is not applicable to retention by the administrator, who is also next of kin, and has not been discharged by and upon judicial settlement of his accounts from that relation. But if in this instance he had procured a transfer upon the bank books of the stock to himself individually a different question may have been presented. There was no error in not treating the assessment upon the fifty shares as the debt of James Faulkner, deceased.”

See the same case In re Faulkner’s Estate, 10 N. Y. Supp., 325.

Even if Mrs. Kuerze were to be regarded as the owner of the rest of the stock that belonged to her husband, by reason of any estoppel or taking possession thereof in 1908, it is by no means clear that such transfer of stock after the change in the double liability law would impose upon her the obligation to satisfy creditors, whose claims had existed prior to 1903; but it is unnecessary to decide that point.

It follows, then, that, although there is a double liability as to each of the debts held by the bank, established in the court below, Mrs. Kuerze is liable only as the holder of 3,600 shares of stock.

The judgment should be modified in accordance with the above and as modified will be affirmed.

Jones, P. J., and Hamilton, J., concur.


text:
    CONSTRUCTIVE FRAUDULENT INTENT IN DEEDING PROPERTY TO WIFE.
    Court of Appeals for Hamilton County.
    Huwe v. Knecht et al.
    Decided, April 7, 1919.

      Husband and Wife — Gift of Beal Estate to Wife — Constructive Fraudulent as to Creditors — Release of Bower Insufficient Consideration for Conveyance to Wife, When — Sections 11104 and 11105 Relating to Fraudulent Transfers.

    1. A conveyance of real estate by a husband to' his wife as a gift will be set aside as having been made in fraud of creditors, where it is disclosed that the husband has not sufficient assets to permit him to make a gift and is unable to pay his debts.
    2. Section 11105, General Code, making knowledge of fraudulent intent material, applies only to Section 11104, General Gode, relating to transfers in contemplation of insolvency or to prefer creditors, and not to Section 8618, General Code, invalidating gifts to defraud creditors. Hence, the transfer by a husband of his unincumbered property to his wife, thereby providing a home in which he can live and thus defeating the rights of his existing creditors, is constructively fraudulent and void, even though no actual fraud was intended.
    3. The act of a wife in releasing her dower interest in other property is not sufficient consideration to support such a conveyance, where the value of the property received by the wife is unreasonably disproportionate to the dower interest released by her.
    4. An action to set aside a fraudulent conveyance, instituted four months before defendant petitioned in bankruptcy, does not create a lien upon the property of the bankrupt; but the lien of a judgment creditor is superior to that of trustee in bankruptcy, and the discharge of the debtor being a personal defense does not defeat the rights of the lien-holder in the property.

      Kramer & Bettman, for plaintiff.

      John W. Peck, for defendants.
   Shohl, P. J.

This case was heard on appeal. The original action was brought by Katherine Knecht Huwe against her ‘brother, Victor E. Knecht, and Emma S. Knecht, his wife, to set aside a conveyance alleged to have been made in fraud of her rights as a creditor.

The father of plaintiff and her defendant brother died in 1905, leaving a substantial estate, consisting among other things of stock in the Victor Knecht Company, a foundry located in Cincinnati. In 1906, defendant, Victor E. Knecht, purchased of his sister her 39 shares in the Victor Knecht Company. There was a payment of $1,000 May 21, 1906, and a series of notes, $3,500 being dated June 19, 1906, and $7,200 dated November 17, 1906. With his other stock this gave Victor E. Knecht the controlling interest in the company, of which he, was president and general manager. Under his operation the business was interrupted by strikes, and, according to his testimony, after the year 1907 it got worse and worse.

Defendant went security for one of his brothers and was called upon to pay a note of $11,500, on which he was an endorser. To obtain this money, application was' made to the Western German Bank, and on April 16, 1909, he mortgaged to the bank his interest in the real estate inherited from his father, joining with his brothers, who did likewise, to secure a loan of $11,500, and hypothecating at the same time his 124 shares of stock of the Victor Knecht Company, which were his total holdings exclusive of the 39 shares which the plaintiff held as collateral to her notes. In addition to the above, he was also indebted to the bank in the sum of $4,600. On the same day the Victor Knecht Company executed a mortgage bn certain of-its real estate to secure an indebtedness then existing amounting to $16,000. - At the time of the.mortgage, above referred'to, defendant, Emma 3: Knecht,- signed a waiver of her dower rights, and' défeñdañts' both testified'that'it was-agreed between them at that time that she would be given the home in consideration of her releasing dower. .

On June 19, 1909, the first of plaintiff’s notes, in the sum of $1,500, fell due. The evidence shows that plaintiff was demanding-payment at'the-time, and-her-brother, the-defendant','‘professed his ■ inability to pay it! On June- 29, ten- 'days-.thereafter, he conveyed the home to his wife. This is the property involved in this action.

It is contended that the transfer to the wife constituted a gift, or rather a partial gift; that Knecht was not possessed of sufficient means to meet his existing obligations and that as against the plaintiff, an existing creditor, the transaction was voidable and should be set aside. The evidence shows that defendant was largely indebted, and owed according to his own testimony $11,500 to the Western German Bank, as joint maker on a note; he owed the further sum of $4,600 to the bank; he owed the plaintiff $10,700, and his sister-in-law, Mrs. Peter Knecht, about $300, making a total of $27,100. His assets consisted of the shares of stock of the Knecht Company, all of which were hypothecated; a one-sixth interest in his father’s real estate, the whole of which he testified was worth $30,000, but which sold in partition for less than $22,000, the value of his interest therefore being somewhere between $3,500 and $5,000; he also owned a two-thirds interest in a farm, his intérest being valued at $2,000. ITis only other asset beside the property now in suit was the stock in the Victor Knecht Company. On the witness stand he stated that in his opinion it was valuable, being worth in the neighborhood of $300 a share. The evidence does not warrant us in adopting his opinion. All the evidence in the case shows the business had been going backward for several years. It could hardly be classed as a going concern. It was not doing business, nor attempting to do any, with intermittent exceptions. It had paid no dividends since 1906. It was unable to pay its notes as they matured, and was finally required by the bank to mortgage its real estate to secure its obligations there. Defendant claimed to be entitled to a salary of $3,000 a year, but only drew $30 or $35 a week, stating on the witness stand that he could not draw more as he did not wish to drain the business. He was only able to pay the interest to Mrs. Huwe in small installments, because the condition of the business would not permit him to draw any more money from it. After giving full weight to all the evidence, facts and circumstances of the case, the court has. reached the conclusion that the stock was not worth anything like $300 a share; it could not be sold in the market. It was certainly not worth its par value in 1909. The circumstances show that long before the receivership of July 17, 1913, the company was unable to meet its obligations as they matured.

We conclude that defendant, Victor E. Knecht, did not have sufficient assets to permit him to make a gift. As was stated in Crumbaugh et al. v. Kugler et al., 2 Ohio St., 373:

“A person largely indebted can not give away his property without amply providing for the payment of his debts. The suspicion of a fraudulent intention in making such gift may, in many such cases, be removed by proper evidence, but the question always remains whether the conveyance operated to the prejudice of creditors.
“Such a gift is never upheld unless property is retained, clearly and beyond doubt, sufficient to pay all the donor’s debts.”

See also Brice v. Myers et al., 5 Ohio, 121; Miller et al. v. Wilson et al., 15 Ohio, 108; Oliver v. Moore et al., 23 Ohio St., 473; Evans et al v. Lewis, 30 Ohio St., 11, and Walston v. McCabe et al., 11 N. P., (N. S.), 26.

It is claimed, however, that Mrs. Knecht gave consideration for the transfer by releasing her dower in the property covered by the mortgage to the Western German Bank, and the case of Singree v. Welch and Wife, 32 Ohio St., 320, was citead. In that case, for property that was worth $500, the wife relinquished dower in land located in Illinois in which the value of her dower right was estimated at $230. . In the case at bar, the evidence shows that the property was worth over $5,400, and the value of defendant’s contingent dower in her husband’s share of the estate of his father, even if the entire property was worth what defendant claimed, calculated on the mortality tables, would amount to $279. In the case of Singree v. Welch, the court says, at page 324:

‘1 For the purpose of this case it may be conceded, that if the wife claimed and received for her rights in her husband’s estate, an amount so" entirely disproportionead to its value, as to be altogether-unreasonable,- and-shocking to-the' moral sense; she might be held, as in the nature of a trustee for her husband’s creditors. ’ ’

The disproportion in the case at bar is altogether unreasonable, so that while there was a semblance of consideration, or of partial consideration, there was a very substantial partial gift out of the estate that should have been used to pay the husband’s creditors. Part consideration is not inconsistent with the doctrine of Crumbaugh v. Kugler, 2 Ohio St., 373, 378, nor with the rule in Oliver v. Moore et al., 23 Ohio St., 473, 481.

Defendants call to the attention of the court the case of Lytle et al. v. Baldinger et al., 84 Ohio St., 1. In a situation in which the doctrine of that case is applicable, this court will follow the rule laid down by the Supreme Court until that tribunal should make a further decision in respect to the statute therein referred to. The syllabus, however, refers only to transactions in violation of Section 6343, Revised Statutes, now Sections 11104 and 11105, General Code. The act of which these original sections were a part is in the chapter on Insolvent Debtors. There are other provisions of the code upon which plaintiff relies. Without passing upon her contention that she has further rights at common law, Section 8618, General Code, provides:

“Every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons purchasing such lands, tenements, hereditaments, rents, goods or chattels, shall be utterly void and of no effect.”

That section is the modern successor to the Statute of Elizabeth referred to in the case of Brice v. Myers et al., 5 Ohio, 121, where the court says, at page 123:

“To enforce these principles, to prevent creditors from suffering by their violation, was the object of the statute of the 13 Eliz. c. 5. and is the object of that part of the second section of our statute for the prevention of frauds and perjuries, which relates to creditors. As to the relief of creditors these statutes are eo-extensive; each makes void conveyances made with ‘intent’ to defraud creditors; they are declarative only of the common law, which, as now understood, would, without the statutes, have effected all that can be effected with them. The statute of Eliz., as to the relief of creditors, has, from its enactment, in courts both of law and equity, uniformly received a most liberal construction, notwithstanding it subjects the committers of the forbidden fraud to a prosecution for a penalty.”

If a man who is largely indebted transfers all of his unencumbered property to his wife, thereby providing a home in which he can live, and thus defeating the rights of his existing creditors, the transfer is constructively fraudulent and void under Section 8618, General Code, even though no actual fraud was intended. See Crumbaugh v. Kugler, supra, at page 378. To hold that the transferee must have knowledge of the fraudulent intent in such a case, where no fraudulent intent is necessary, involves a confusion of thought.

Section 11105, General Code, does not by its terms apply to Section 8618, but only to 11104, the section immediately preceding it. We will not extend the doctrine of Lytle v. Baldinger, supra, to make it cover sections other than the one to which it specifically refers. It will take clear statutory language to warrant a court in imposing upon a creditor seeking relief the obligation to show that the wife had guilty knowledge, l.n the case at bar the wife admitted on the witness stand that she ¡mew of his obligations and that she did not know what assets he had to meet them. In view of our conclusions of law, hereinbefore stated, it becomes unnecessary to determine whether such knowledge put her on inquiry sufficiently to charge her with bad faith. Unless otherwise barred, plaintiff would be entitled to set aside the transfer.

It appears that on April 21, 1915, the defendant, Victor E. Knecht, was adjudicated a bankrupt. In the schedules in the bankruptcy case plaintiff was listed as a creditor on $10,700 worth of notes. On December 27, 1915, the bankrupt was dis-chard, and during tire hearing of this cause in this court defendant by leave filed a supplemental answer setting up the facts in connection with the bankruptcy case as a defense to this action. To this defense plaintiff made several contentions., as follows:

.In Remington on Bankruptcy (2 ed.), Sec. 1591, the rule is stated as follows:

“Fraudulent transfer, suits instituted before four months. Suits to s.et aside fraudulent transfers instituted more than four' months preceding bankruptcy may not be enjoined, nor may ‘ the property be ordered turned over to the trustee in bankruptcy.” (Citing Pickens v. Roy, 187 U. S., 177; Natl. Bank of Republic v. Hobbs, 118 Fed. Rep., 626, and In re Kavanaugh, 99 Fed. Rep., 928).

•■The most important decisions involved in a determination of the question are Metcalf v. Barker, 187 U. S., 165, and Pickens v. Roy, Id., 177. In each of these cases the action was by a judgment creditor. They establish that when a judgment creditor files his 'bill in equity more than four months prior to the bankruptcy of the defendant, thereby obtaining a lien on specific assets, and diligently a lien on the property of the bankrupt, which is superior to the title of the trustee in bankruptcy. The lien created by a judgment creditor’s bill is contingent in the sense that it is subject to being defeated if the suit is unusuccessful, but it is inchoate and becomes a specific charge or lien upon its successful termination. This lien, if it arises more than four months prior to the petition in bankruptcy, is respected in bankruptcy, and the discharge of the debtor, being a personal defense, does not release the rights of the lienholder in the property. The rule is based upon the recognition and enforcement of pre-existing liens not arising within four months of the petition in bankruptcy. See 2 Loveland on Bankruptcy, Section 749, and Collier on Bankruptcy (11 ed.), 402, 403. When a judgment is obtained, the judgment creditor has a lien upon the lands of the judgment debtor in the county in which the judgment is rendered. (Section 11656, General Code). If a debtor has attempted to convey away the land in fraud of his creditors, it equitably remains his, and when the fraud is determined and the transfer set aside it is regarded as affected by the lien which would have attached by operation of the statute if the property had never been transferred. Plaintiff contends that a strict lien is not necessary, but further urges that creditors’ suits and like actions create a lien sufficient for the purposes of such an action, citing 25 Cyc., 1457, and 20 Cyc.,, 826. They are as follows:

“25 Cyc., 1457-C. Creditors’ suits and like actions. A lien is acquired by the filing of a strict creditor’s bill to subject property not reachable by execution at law, or by the filing of a bill by a creditor to set aside a fraudulent conveyance by his debtor.”
“20 Cyc., 826. A creditor who. during the life of his debtor brings a suit to set aside as fraudulent a conveyance or transfer made by such debtor acquires a lien on the property covered by such conveyance or transfer, and becomes entitled to the payment of his claim in preference -to other creditors, unless it is otherwise provided by statute.”

An examination of all the cases cited in the notes to the foregoing leads us to the conclusion that while the weight of authority supports the text, many of the decisions are founded upon the construction of local statutes. Judgment liens in Ohio are purely of statutory creation. (Stanton, Sheldon & Co. v. Keyes et al., 14 Ohio St., 443, 446. We are not convinced that the bringing of such an action by a creditor, other than a judgment creditor, creates a lien in Ohio.

It appears in this case, however, that on the same day on which this original action was filed, to-wit, June 14, 1912, suit was brought on $5,700 of the notes which formed the basis of this action. That ease proceeded to a determination, and on March 3, 1913, a part of the notes on which this suit was based ripened into a judgment for $5,700 and costs. It appears, therefore, that the plaintiff herein is armed with a judgment and was a judgment creditor more than four months prior to the bankruptcy proceedings. Her rights, therefore, should be no less than those of the original plaintiffs in Metcalf v. Barker and Pickens v. Roy, supra. See also Flint v. Chaloupka, 78 Neb., 594; Blick v. Nimmo, 121 Md., 139; Stevenson v. Bird, 168 Ala., 422, and Board of Directors v. Lowrance, 43 Amer. B. R., 31 (South Carolina, 1919). The last-named decisions show the application of the doctrine. Relief was granted to plaintiffs setting aside fraudulent conveyances, although bankruptcy supervened.

The plaintiff is entitled to a decree. The court, however, will grant relief on terms. It appears that Mrs. Kneeht relinquished dower worth $279, according to calculations based on figures given by her husband. If the transfer is to be set aside the decree will be conditioned upon the securing to her of that amount. In view of the fact that the defendants have had the occupancy of the premises in question during the controversy, no interest will be allowed on that sum. The right of Emma S. Kneeht to contingent dower in the premises in controversy will be left as it was prior to the transfer by Victor E. Kneeht, which will be ordered-set aside in accordance with the aibove. A decree may be presented accordingly.

Hamilton and Cushing, JJ., concur.