text:
    (Sixth Circuit—Lucas Co., O., Circuit Court.
    January Term, 1891. )
    Before Bentley, Scribner and Haynes, JJ.
    MARSHAL W. LOWE v. THE W. & L. E. RY. CO.

      Unrecorded contract of R. R. Co. with land oioner to construct cattle-pass, coupled with possession of same by land owner — Possession sufficient notice to purchaser of R, R. ■—
    A land owner entered into a contract with a railroad company, by which he agreed to convey to it a strip of land through his farm on the payment of 8150 and the railroad company agreeing to .make a cattle-pass under its track for him to connect the two parts of his farm. On the payment of 8150, and the construction of the cattle-pass, as agreed, he afterwards conveyed the strip to the R. R. Co., the deed, however, being silent as to the cattle-pass. The road was afterwards sold on foreclosure, and the purchaser attempted to fill up the cattle-pass on the claim that the contract not being recorded, they had no notice of the agreement about the cattle-pass and are innocent purchasers, without notice, and not bound by the contract. Held, that the actual and open possession by the land owner of the cattle-pass was sufficient notice of the claim of the land owner to the railroad company to put them on inquiry.

      Possession of grantor after deed made notice of adverse claim not inconsistent with terms of deed.—
    2. While it is the rule that possession by the grantor after execution of the deed, is not notice of an adverse claim by him inconsistent with the terms of his deed, yet where the deed only conveys the easement in the land for the purpose of constructing a railroad track thereon, and the existence of the cattle-pass is not inconsistent with such use, the possession of the same by the grantor will be notice to the purchasers of the railroad of the landowner’s claim to the cattle-pass.

      Same — Duty to maintain cattle-pass — Continuing Contract—
    3 While in the contract the railroad company only agrees to construct the cattle pass, and not to maintain the same, yet the contract is a continuing one, and neither the railroad company the party to the contract, nor the purchasers of the road under a foreclosure sale, have the right to fill it up..
    Appeal from the Court of Common Pleas of Huron County.
   Bentley, J.

Mr. Lowe brings this action to obtain an injunction against the defendant, the Wheeling & Lake Erie Railway Company, to prevent the company from filling up a certain cattle-pass which now exists under its railway track connecting two parts of the plaintiff’s farm. The company admits that it is its purpose to fill up the cattle-pass, and denies the right of the plaintiff to the injunction forbidding it so to do.

The case being appealed to this court, it has been tried before us upon the pleadings and statement of facts and the evidence adduced, including certain records from the county records here.

The land in question, the farm of the plaintiff, is the east half of lot No. 147, of the 4th section of Townsend township, Huron County, Ohio. This farm originally contained about 100 acres of land. In 1880, the predecessor of the defendant company, the Wheeling & Lake Erie Railroad Company, desired to construct its line of road through this farm, and applied to Alpha Lowe, the father of the present plaintiff, who then owned the farm, for permission so to do. He permitted the railroad company to so construct this track through the farm, and entered into a certain written contract with it by which he so permitted it. This construction of the road seemed to require a high grade across this farm of ten or twelve feet in height, and the road so crossed the farm that it left to the south of the grade a part of the farm of seven or eight acres in extent, the rest of the farm being upon the north side of the grade. The contract was signed by Mr. Lowe only,and sealed by him,but when accepted by the railroad company under such circumstances,so far as the contract contained stipulations to be performed by the railroad company, it was bound to perform them, the same as if its officers had in fact signed the contract.

The contract provides as follows:

“Elnoiy all men by these presents, that I, Alpha Lowe, of Townsend township, in the county of Huron, in the state of Ohio, in consideration of one hundred and fifty dollars, cash to be paid, and the further consideration of the public good and the benefits which will accrue to me from the construction of the Wheeling & Lake Erie Railroad, do agree that said company may locate and construct its road upon or through my land situate in the county of Huron, Townsend township, state of Ohio, and described as follows, to-wit: Being the east half of lot No. 147, in the 4th section of said township, and being the farm on which I now reside, said company to construct an under cattle-pass, if practicable, also one over-crossing at grade; and if the said road shall be under contract or process of construction not later than two years from this date, I hereby covenant and agree for the above consideration, on demand, to convey to said company for railroad purposes for single or double track, sixty-six feet in width, that is to say, 83 feet r n each side of the center of said road, as the same may be located or constructed by said company over and through said land by a good and sufficient deed of conveyance to said company, stipulated as hereinbefore and after, and binding on me and my heirs and assigns, said sum to be paid in full before possession taken, and said sum to cancel a claim 11 owhave against said company for ten dollars for injury to my corn.

In witness whereof, I have hereunto set my hand and seal this 4th day of October, 1880.

“(Seal.) Alpha Lowe.

“Attest R. H. Cochran, W. W. Graham.”

After the making of this contract that grade was made across this farm as stated. In apparent compliance with the contract the railroad company did construct a cattle-pass some ten or twelve feet in height,and with a clear space high enough that a wagon with a rack might be driven through thus creating a pass between the northerly part of the farm with that upon the southerly line of the grade.

Thereupon, shortly afterwards, when the railway came to be fenced, the fence was made with reference to the use by the land owner of this cattle-pass in connection with the farm; that is, the fences upon the line of the road were turned in to the edges of the cattle-pass on both sides, so that there was free ingress and egress for cattle and for anything that the owner wished to pass through there from one side of the farm to the other. That situation was maintained from that time until the present, and it is the cattle-pass thus built and maintained that the present owner of the right of way designs to fill up.

In 1883, after the making of the cattle-pass in apparent conformity with the stipulations of the contract, Mr. Lowe made a deed to the railroad company, and as its terms are important, at least a portion of the terms, and as the deed is short, I will read it:

“Know all men by these presents, that we, Alpha Lowe and Maria, wife of said Alpha, of Townsend township, Huron county, Ohio, in consideration of the benefits to accrue to us from the construction of the Wheeling and Lake Erie Railroad and the sum of one hundred and fifty dollars, in hand paid by the Wheeling and Lake Erie Railroad Company, here receipted, do give, grant, bargain, sell and convey unto the said Wheeling and Lake Erie Railroad Company, its successors and assigns, a strip or parcel of land containing one and 74-100 acres, more or less, through the land of said grantor, situate in the east half of lot No. one hundred and forty-seven, (147,) section four, (4), Townsend township, Huron county, Ohio, and which is described as follows:

“A strip of land sixty-six (66) feet wide, commencing at the east boundary line of the lands of John Gr. Bott, being the west half of said lot on the west, and thence funning south-easterly to west boundary line of lot-No. one hundred and forty-eight (148) in said section on the east. Said strip or parcel of land is 66 feet in width; that is to say, 33 feet on each side of the center line of said railroad, as the same is located through said land from a point on the west boundary line of said land to a point on the east boundary line of the same as above described.

“To have and to hold said described strip of land to said The Wheeling and Lake Erie Railroad Company, its successor and assigns, for the purposes of said railroad and as its right of way.”

Then follows the release of dower by Mrs. Lowe, and the usual formalities in the execution of a deed.

This deed being delivered to the railroad company, was shortly'thereafter filed for record, and duly recorded in the proper volume of the records of deeds of this county. Before the making of this deed, the railroad compaixy had mortgaged its entire line of property to certain persons in the East for a large sum of money borrowed, and that mortgage was duly recorded. After the .making of. this deed, in July, 1884, the mortgagees of the railroad company began an action in the United States court for the northern district of Ohio, eastern division, against the railroad company for foreclosure of this mortgage, and such proceedings were had in that case that the mortgage was foreclosed, and the property thus mortgaged, ordered to be sold, and on the 28rd day of April, 1886, the Special Master Commissioner appointed by the United States court in that proceeding, sold, under the decree of the court, the railroad property to certain three persons named as trustees, and those trustees afterwards, for a valuable consideration, on the 25h day of June, 1886, conveyed the property thus purchased by them to the defendant in this action, The Wheeling & Lake Erie Railway Company.

The contract in question given by Mr. Lowe, was recorded, but recorded in the record of deeds, and it is claimed that, that record being in a volume not designated by the law, it is of no moment in a trial of this case; that is,it affords no constructive notice to this railway company of the existence of such a contract, and that the record itself is not receivable in evidence for any purpose; and it is claimed that the railway company as well as these trustees wer.e innocent purchasers of this property; that they had no notice,neither actual or constructive, of the terms of this contract, or the obligation of the railroad company to either construct or maintain this cattle-pass, and that therefore, whatever the rights of Mr. Lowe may have been as against the original railroad company, he cannot assert them or enforce them as against the present railroad company. I will state perhaps what I omitted to state, that Alpha Lowe had died; the title to the farm descended to the present plaintiff, Marshall W. Lowe, or was conveyed to him by deed; at least, Marshall W. Lowe now stands in the place of Alpha Lowe as to this transaction.

The plaintiff claims that whatever may have been the effect or want of effect of the record of this contract; yet the contract was made, and that, ever since the construction of this cattle-jiass, Mr. Lowe, the plaintiff,or his father, while each respectively held the title, was in the actual and notorious and apparent possession of this cattle-pass; that it connected the two portions of this farm, and that it was observable to any person who came within sight of the railroad or of the farm at that point, and that therefore such possession was notice to the subsequent purchaser of the railway property.

The railway company deny that that was constructive notice to it, and it also alleges that the contract itself did not require the maintenance of a cattle-pass; that the contract simply required a cattle-pass to be constructed, but was silent as to any maintenance of it. The counsel for the railway company, however, admits that if this road were still in the possession of the original company with whom the con-ti'act was made, it would have no right or authority to fill up the cattle-pass; that although it had not, in terms, contracted to maintain it, yes it could not, at least, fill it up.

The plaintiff claims, however, that the contract, fairly construed, requires the maintenance as well as the construction of the cattle-pass in question.

The counsel for the railway company, in endeavoring to sustain its position regarding the want of constructive notice by possession, cited this rule, that, while as a general thing, it is true that actual possession of real estate is constructive notice to every person and the world as to any real rights that the possessor has in the real estate, yetthat there are exceptions to that rule, and among them is this exception, —that the possession or' land retained by the grantor after he has made a deed conveying the land, is not ixotice to any purchaser who takes from his grantee, because having granted the title to the land, it will be presumed that he is simply a tenant at sufferance of his grantee, and that a subsequent purchaser from the grantee has a right to so assume; but while that is, by the great weight of the authorities, the general rule of law, there are some cases that hold otherwise, apparently though.not the majority. As a matter of interest, I would say that it would seem that this rule is not followed, and apparently not recognized in the case in the 82 Me., McLaughlin v. Sheppard; nor in case of 51 Maine 161, the case of Boggs v. Andrews; nor in a certain California case.— I think it is 25 California; nor in a case in the 89 Illinois, page 460; nor in the 107 Illinois, page 136, and the matter is also noticed in the second Leading Cases in Equity, page 184.

Now, this general rule rests upon this proposition, that the grantor of a deed cannot claim possession in conflict with the terms of his deed; that where he is found in conflict with the terms of his deed, it may be presumed that he is simply a tenant at sufferance, and such possession is not notice to those who subsequently deal with the grantee regarding the land. And the question now is whether in this case, the facts bring the parties within the operation of this rule.

I call attention to the terms of the deed. It is a deed which grants in the granting clause to the railroad company this strip of land; but in the tenendum clause it recites, “To have and to hold, said described strip of land to said, The Wheeling & Lake Erie Railroad Company, its successors, and assigns, for the purposes of said railroad, and as its right of way. ”

The scope of the title then, which the railroad company took to that land, was the title for the purposes of its railroad, and as its right of way. It was then not in every sense an absolute deed of the whole property for any purpose whatever for which the railroad company might see fit to use the land, but for the purposes recited.

Now if this possession which the grantor so retained in the land, was in conflict with the terms of his deed, his possession would come under the general rule which I have mentioned, and as against subsequent purchasers in good faith, from his grantee, he could not claim that his possession was constructive notice. But was the possession which he retained and which he had all these years, in conflict with the terms of his deed?

It is not claimed in this action, by the defendant, the railway company, that the use of this cattle-pass is inconsistent with the use of this land for the purposes of its railroad, andas its right of way; it makes no such claim as that either by pleading, or by proof offered, but it simply assumes the absolute right to fill it up regardless of the want of any necessity for so doing for the purposes of its railway.

It is a matter of common knowledge that these passes are frequently constructed and maintained under railway grades, and it is a use that is entirely consistent with the use of the right of way for railway purposes, and when the plaintiff is allowed to retain such possession of so much of a mere right of way, his possession is not in conflict with the terms of his deed, and is consistent with it, just as consistent as is his right to an over-pass, or as the rights of any person to whom the railway company might allow a pass under its grades.

Among the cases cited in support of this general rule, that the grantor cannot claim that his subsequent possession of the lan dgranted,in conflict with the terms of his deeds is constructive notice to the world, are many cases from Michigan, and no state holds any firmer to this doctrine as appears from the reports, than that state; yet in a case which occurs in the 18th Michigan, page 867, in the opinion on page 877 and 378,is this language: “The counsel for plaintiff in error relied upon Palmer v. Anderson, 8 Michigan, 395, and Dawson v. Dunbar & Company, 15th Michigan, 489, to show that where the grantor remains in possession after conveyance, he is to be regarded as holding under his grantee,and not by any other claim.

“Those cases hold that such possession after conveyance is not notice of any other claim as against third persons; but they do not hold that it is incompatible with any other right as against the grantee if any such existed, and is not inconsistent, in fact, with the existence of the grant. ”

Now, these cases,we think, recognize this distinction that I have endeavored to point out. So that leaves the operation of the other general rule, which is not denied, that the possession of lands by a person is constructive notice of whatever right he actually has in the lands; and for the disposition of this case, it is not necessary to decide whether or not this contract should be construed as requiring the railway company to maintain a pass. It is sufficient to show that the contract required the company to make it, in the first instance, and following from that necessarily would be the impropriety and illegality of the act of the company to fill up the pass — the company that was bound by this contract to make it; so that the original railroad company would have had no right whatever to fill up this pass, even if it was not bound actually to maintain it; that is, to keep it in order etc.,and the plaintiff being in possession at this time,at the time of the sale and purchase of this property, we think such rights as he would have in the premises as against the original railroad company, might be maintained notwithstanding the purchase of the property by the present railway company.

This contract, whatever may be its requirements, whatever acts it might require, in the first place, is continuing so far as it was not performed by the making of the deed, as far as the grantor is concerned; and in this connection,attention is called to the case of Reid v. Sycks, 27th Ohio St. 285, the third paragraph of the syllabus being: “The covenants of the vendee contained in such contract of sale, to assume and pay off said mortgage as part payment qí the purchase money, are neither performed, satisfied, surrendered, nor merged by the mere o mveyance to him by the vendor, in the absence of anything in the deed, or the acts of the parties showing that such covenants of the vendee have been in fact performed or satisfied.”

Again, in 45 Ohio State, the case of Brumbaugh v. Chapman, page 368, in the opinion of the court, on page 375, speaking of this matter, this is said: “The case of Reid v. Sycks, 27th Ohio State, 285, cited to us, is quite different from the one presented by the record before us, and is not in conflict with what has just been announced. It was there simply held that the deed did not execute a prior agreement of the vendee to assume and pay an existing lien upon the property, that had been assumed by the vendee as part of the purchase money. As a rule, the deed does not execute any of the stipulations of the vendee as to the consideration to be paid for the property. Its office is to execute the agreement on the part of the vendor, and the learned judge, in delivering the opinion in that case, was careful to observe this distinction,in the use of the language: ‘The obligation to pay the purchase money was not merged by the deed, which was only in performance on the vendor’s part. * * * The covenant to convey is performed by the conveyance; but covenants relating to other things than a mere conveyance, are not thus performed.’ ”

Andrews Bros., for Plaintiff.

Siuayne, Swayne & Hayes, and S. A. Wildman, for Defendant.

Now, in view of the open and notorious character of this possession and all the circumstances attending it, we think it would be grossly inequitable for the railway company to be allowed to fill up this cattle pass, and the finding and decree of the court will be in favor of the plaintiff, and against the defendant.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Nov. Term, 1895.)
    Before Smith, Swing and Cox, JJ.
    VOIGHT SONS & CO. v. LAFKIN.

      Dissolution of partnership — What will amount to — Assesis will vest in remaining partner, ivho entitled to homestead exemption out of proceeds. —
    1. Where one partner withdraws from the partnership, turning over all his interest therein to the other partner, in consideration that such other partner pay him S150 and pay the debts of the partnership, the title to the assets of the same vests in the other partner, and although he has not paid the 8150 to the withdrawing partner, nor the debts of the concern, yet he or his wife, neither owning a homestead, will be entitled to S500 in lieu of a homestead, out of the proceeds of the assets of the concern, if properly demanded.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

In this case it is urged that the court erred in overruling the motion made at the close of the testimony offered in chief by plaintiff below, the defendant in error here, to withdraw the evidence from the jury and have it render a verdict for the defendant — in overruling the motion for a new trial, and in admitting certain evidence.

The action was one brought by Mrs. Lafkin against the sheriff to recover the possession of personal property levied on by him by virtue of an execution issued on' a judgment rendered in favor of the plaintiffs in error against E. B. Lafkin & Co., a partnership, and which was levied on property which, at one time, had belonged to the partnership. It was an action of replevin, but, as bond was not given by the plaintiff, it stood as an action for damages. The plaintiff in error was substituted as defendant in lieu of the sheriff, and filed an answer denying any right of the plaintiff to the property.

On the trial, while it was admitted that while the property was in the hands of the sheriff, the plaintiff, the wife of E. B. Lafkin, one of the members of the firm of E. B. Lafkin & Co., had filed an affidavit, pursuant to the statute in such case made and provided, with the sheriff of Hamilton county, and had demanded that he set off to her, in lieu of her homestead exemption, said goods so levied on, or so much thereof as would amount to $500. This was refused, and the property was sold, and the proceeds paid to the plaintiff in error.

It further appeared that some time prior to the levy on these goods an arrangement had been made between the two members of the firm of Lafkin & Company, looking to a dissolution thereof, and that one of the two members withdrew, turning over to Lafkin the goods and assets of the partnership and all of his interest therein, on the agreement of Lafkin to pay to him $150, and to pay the debts of the partnership; but the fact appeared that he had paid no part of either.

This dissolution of the partnership seems to have been made in good faith, and under the decision in the case of Mortley v. Flanagan, 38 Ohio St. 401, we are of the opinion that the effect of what was done was to dissolve this partnership, and vest the title to the assets thereof in Lafkin, though he had not made the payments as agreed upon. This being so, according to the provisions of section 5441, husband and wife living together, neither being the owner of a homestead, were entitled to hold exempt from execution, real or personal property, to be selected by such person, or one of them,’ before the sale of the property levied on, not exceeding in value $500, to be set off in lieu of a homestead.

Cobb & Hotoard, for Plaintiff in Error.

Qarr & Speiser, Contra.

If, therefore, Lafkin and his wife were living together, and neither of them was the owner of a homestead, either would have been entitled to an exemption, and we cannot presume that she was not so entitled in the absence of evidence. The court, then, should have granted the motion to take the evidence from the jury for this reason, and have granted the motion for a new trial. In our judgment, too, the trial court erred in allowing the plaintiff below to introduce in the evidence entries made in his book by him after the dissolution of the partnership, tending to show that the partnership had been dissolved, as he claimed. There was nothing to show that the other partner had any knowledge of such entries,or in any way consented to them. It was the admission of a written statement made by the plaintiff after the event, to substantiate his own evidence on the point He could not have proved bis oral statement made afterwards, and we see no reason for a different rale as to a written statement.

The judgment will be reversed and the cause remanded for a new trial.


author: Scribner, J.

text:
    (Sixth Circuit—Huron Co., O., Circuit Court,
    January Term 1894.)
    Before Bentley, Scribner and Haynes, JJ.
    ARMINDA C. KNIFFIN v. JOSEPHINE B. SCHAFFER ET AL.

      Illegitimate children legitimized by subsequent marriage of parents ■ — Talce bequest to their father and his laivful heirs. — ■
    Illegitimate children whose parents afterwards marry, and who are acknowledged by the father, by the provisions of sec. 4175, Rev. Stat., become legitimate, and are placed precisely in the same position as if born in wedlock, and they will take under a will giving to their father and the lawful heirs of his body begotten.
    Appeal from the Court of Common Pléas of Huron County.
   Scribner, J.

This is a proceeding which comes into this court by way of appeal from a judgment rendered therein by the court of common pleas.

On the 22nd day of January, 1877, one Benjamin Kniffin, then in full health, and a resident of Huron county, executed in due form his last will and testament. At that date he was the owner of a large body of real estate situated in Huron county, as well as a considerable personal property. He left surviving him several children, perhaps five in number. He died July 12, 1877. His will was admitted to probate on the 30th of July, 1877. By that will, which appears to have been very carefully prepared, the testator disposes of a large body, if not the whole of his large estate. The clause material to be considered in disposing of the principal question here presented is as follows: “To my son, Charles B. Kniffin, I do further give, bequeath and devise for, and during the time of his natural life, the entire use, benefit, custody and control of 133 1-3 acres of land situated in my said old farm, consisting of 400 acres of land situated east of and adjoining said last before .mentioned 133 1-3 acres of land; incase my said son, Charles B. Kniffin, shall have lawful heirs of his body begotten, then and in that case, I do give and devise the said land to him in fee simple; and in case my said son, Charles B. Kuiffin, shall die having no lawful heirs of his body begotten, then, and in that case, in all respects subject to his having the use and benefit of the same during his life time as aforesaid, I do give and devise the said land to all my grandchildren living at the death of my said son Charles B. Kniffin, which shall be children of my children now living, to be equally divided amongst them.”

Charles B. Kniffin died on the 4th of August, 1893, without issue, and according to the express terms of that, portion of the will which I have just read, Charles B. Kniffin never having bad lawful heirs of his body begotten, the said tract of 133 1-3 acres of land passed, by the terms of his will, to his grandchildren living at the death of his said son, Charles B. Kniffin,“which shall be children of my children now living, to be equally divided amongst them.”

The present proceeding, as I have stated, is an action in partition brought by Arminda C. Kniffin against Josephine C. Schaffer, Benjamin F. Kniffin, Junior, aged 20 years, Harry W. Kniffin, aged 18 years, Alta Kniffin, aged 16 years, Clarence Ingersol, aged 19 years, Florence Ingersol, aged 17 years, Bengamin K. Kryster and George Kniffin, defendants. These nine persons, it is alleged by the plaintiff, constitute the grandchildren of the deceased testator, living at the death of the said Charles B. Kniffin, and they are the children, as it is alleged upon the part of the plaintiff, of the children of the testator living at the date of the execution of the will. No question is made but what these nine persons named in the petition are the childern of the children of the testator who were living at the date of the execution of the will; but as to five of these parties, including the plaintiff, Arminda C. Kniffin, it is insisted upon the part of the remaining four that they do not come within the terms of the will, for this reason: Their father, Benjamin F. Kniffin, who was named as one of the devisees of the will, and as one of the executors of it, lived and co-habited with the mother of these children for many years before there was any actual, lawful marriage. They were married on the 9th of May, 1876, in the state of Michigan. The youngest of the five children was born March 11, 1877, some ten months or thereabouts after the marriage, which is proved to have taken place in the state of Michigan. The other four children were born before marriage, and, therefore, out of lawful wedlock. But the marriage having taken place in due form, as is shown by undisputed testimony in the case, the question arises, under the statute, as to "whether or not they are within the terms of the devise.

Section 4175 of the statute provides as follows: “Where a man has by a woman one or more children, and afterwards intermarries with her. such issue, if acknowledged by him as his child or children, shall be deemed legitimate; and the issue of parents whose marriage is deemed null in law, shall, nevertheless, be legitimate."’

There can be no question but that all these children were acknowledged by Benjamin F. Kniffin, their father. The man and the woman lived and cohabited as husband and wife. They lived for some time in Huron county, where one child was born. They lived for years thereafter in Williams county where the remaining four children were born. They lived and were treated and apparently regarded as of one family, as is ordinarily the case when a man and woman have been duly married, the father reconizing the children as his own and treated them in all respects as if born in lawful wedlock.

It is insisted, upon the part of the four grandchildren whose legitimacy is unquestioned — the four parties here, that the marriage of the father and mother of the five children of Benjamin F. Kniffin, does not entitle them to come into the benefits arising under clause 12, of the will.

It will be remembered in this connection, that the marriage occurred before the date of the will, necessarily, therefore, long before the death of the testator. It does not appear whether or not the testator had knowledge of this marriage. It may be a matter of considerable doubt as to whether he did have that knowledge, for it appears from the direct testimony of several of the family that Benjamin ICniffin that they had no such -knowledge until after the commencement of this proceeding; but whether or not the testator had this knowledge we do not deem very material. We must look to the terms of the will to ascertain what shall be the proper effect given to it. 1 repeat, the language of thó statute is: “When a man has by a woman one or more children, and afterwards inter-marries with her, such issue, if acknowledged by him, as his child or children, shall be deemed legitimate. ” What meaning is to be attached, by these terms, if they are to be deemed legitimate? They are precisely as if the marriage had occurred before their birth. There can be no distinction taken, unless we, in some manner treat the statute as not meaning what it purports to mean. There can be no question about it in our minds, but that these children are in all respects to be regarded precisely as if this marriage had occurred before their birth, instead of after.

A case arose a number of years ago in Knox county, under what is now made the concluding sentence of this section: “The issue of parents whose marriage is deemed null in law, shall, nevertheless, be legitimate.”

In disposing of the case,reported in the case of Wright v. Lore, 12 Ohio St. 619, the court says, according to the note appended to this section: “W. was married in Canada in -1822, and the issue of that marriage was the plaintiff. In 1838, his wife still living, he came to Ohio and married another woman, she being ignorant of his former marriage. They co-habited together as husband and wife, and had issue, four children. W. died in 1843, seized of the land in dispute, and these four children conveyed their interest to the defendant. The act of 1831 was substantially the same as the section to which this note is appended. Held, that the expression,‘deemed null in law’ is not confined to marriages which are voidable and require judicial sentence to establish their nullity, but that the innocent children of the marriage de facto, although that matter must be deemed in Jaw a nullity, come within the letter and spirit of the enactment. ”

In this case, if any one is to suffer, it must be the children of this marriage, who were utterly innocent of any wrongdoing, or any violation either of the law or those rules which should govern a well ordered community. The children are not at fault for any wrong or mistake of their parents.

L. D. Strutton, for Plaintiff and the other children of B. F. Kniffin.

Stewart & Rowley, for other Defendants.

The law seeks to relieve the children from the consequences that would otherwise attach to the metricioua aciton of the kind shown in this case.

We have no doubt, in conclusion, that the five children, not only the child that was born after the marriage, but the four children who were born before the marriage are to be considered in a proceeding of this character, just as much the legitimate children of this marriage which subsequently took place, as if the marriage ceremony had occurred prior to the birth of the children. It follows therefore, from these facts and considerations, that the plaintiff is entitled to partition of the 188 1-8 acres of land as prayed for in the petition, and the order will be accordingly. The court will see that the proper commissioners are selected and the proper entry made.


text:
    (Sixth Circuit—Lucas County, O., Circuit Court,
    January Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.
    ALVA AUSTIN v. ALBERT L. SMITH.

      Contract for vieekly salary conditioned on weekly sale construed. — A contract with an agent that he should have “86.00 salary a week, with a guaranty of at least one good sale a week; if there is no sale there is no salary to be paid,” construed not to .mean that salary was to be paid if on an average through the whole time there was one sale a week; but the right construction to be that during weeks where there was no sale there was to be no salary.
    Error to the Court of Common Pleas of Lucas County.
   The defendant in error sued the plaintiff in error before a justice of the peace for a balance alleged to be due him for salary and commissions for selling sewing machines. There was a contract between the parties, made up by using a printed blank which was prepared originally to be used for a somewhat different purpose, and filling in and altering the same for the purpose of these parties; this resulted in a want of clearness in certain of the terms of the contract. By this contract Smith was constituted the agent of Austin to sell sewing machines for him in Toledo, and in said contract is the following provision: “Said second party (Smith) shall receive the following salary and commissions for all sales made — a salary of $6 a week, with a guarantee of at least one good sale of a new machine each week. If there is no sale there is no salary to be paid, and a commission of $5 on each sale made. Said second party is to have the first-$5 paid on sales made from his soliciting.”

The employment under this contract lasted several months, and during some weeks Smith made several sales, and during others he made none; but taking the total number of sales made and the whole number of weeks employed, an average of more than one sale a week was made. Almost every week Austin made payments to Smith of small sums of money and took receipts therefor, a sample whereof is as follows:

“Toledo, Ohio, Feb. 28th, 1891.

“Received of A. Austin six dollars, salary in full to date.

“$6.00. (Signed.) A. L. Smith.”

These receipts were given in evidence in the trial. Some of them also stated that they were in full for commissions on certain designated sales.

The court of common pleas charged the jury in substance that said salary was to be paid for each week of the employment, if, on an average for the whole time there was a sale a week, although during some weeks there may have been no sale.

Held by the circuit court, that this construction of the contract was erroneous, and during weeks wherein no sale was made, no salary was earned. The court of common pleas so charged the jury at the request of the plaintiff below: “That a receipt reading ‘in full’ in which an amount is also stated, is to be taken as a receipt for the amount only, unless it he further proved by other testimony that there was, in fact, a settlement in full.” And also gave other instructions to a similar effect; “that words written in a receipt signed by the party are no admissions of that party of the facts thereby stated, unless evidence aliunde the receipt is given showing that such words were put in purposely by the signer, or were known to him, or that the fact recited in the receipt existed.”

Held by the circuit court that these instructions were erroneous, and the judgment should be reversed.

The verdict is set aside, and the cause remanded for a new trial.


author: Day, J.

text:
    (Sixth Circuit—Wood Co, O, Circuit Court,
    April Term, 1891.)
    Before Bentley, Scribner and Day, JJ.
    CLARK v. STITT ET AL.

      Taking case from jury — When not proper.—
    When in the delivery of the case to the jury upon the issues generally, there is some evidence, some testimony, tending to prove each of the material averments of the petition, the court is not at liberty to direct a verdict, and the party is entitled to the opinion of the jury upon the facts tending to prove his case, and that is so even if the showing is so slight that the court would feel called upon to sot aside a verdict for the plaintiff, rendered upon such insufficient testimony. It is only, where there is a total failure of proof, total absence of proof upon some one or more of the material averments in the petition, of facts necessary to be established, that the court is authorized to direct a verdict for the defendant.
    Error to the Court of Common Pleas of Wood County.
   Day, J.

The case was for damages on account of personal injury resulting from the alleged- carelessness of defendant, by their foreman, conducting the operations of drilling, tubing and piping of an oil well; negligence in construction of the derrick and in several other regards was claimed in the petition.

The case was tried by a jury, and after the plaintiff had introduced his testimony and rested his case, the court of common pleas, on motion, directed the jury to return the verdict for-the defendants,“no cause of action”; which was accordinlgy done. A motion for a new trial was overruled, and jugment entered on the verdict dismissing the petition of the plaintiff and rendering judgment in favor of the defendants for the costs.

All the testimony is brought here by a bill of exceptions, and a petition in error is presented in this court to reverse the judgment of the common pleas court. In the petition in error there are five assignments of error. First, that the court erred in directing the verdict for the defendants; second, that the court erred in its charge to the jury; third, in refusing a new trial on motion. There are two other assignments, but they both merge and become substantially one, and that is a complaint that the court erred in directing a verdict for the defendants.

The rule obtaining in such a case has been stated by the Supreme Court of this state a number of times, and-presumably is well known and understood by the lawyers. The rule is that when in the delivery of the case to the jury upon the issues generally there is some evidence, some testimony tending to prove each of the material averments of the petition, the courtis not at liberty to direct a verdict, and the party is entitled to the opinion of the jury upon the facts tending to prove his case, and that is so even if the showing is so slight that the court would feel called upon to set aside a verdict for the plaintiff rendered upon such insufficient testimony. It is only, we take it, where there is a total failure of proof, total absence of proof upon some 'one or more of the material averments in the petition of facts necessary to be established, that the court is authorized to direct a verdict for the defendant.

In this case there were two material questions at issue between plaintiff and defendant; the question of an act of negligence on the part of the defendant in a number of particulars; and whether their agent, who was in command as was claimed in the petition, was a superior of the plaintiff as to the work they were doingg. On these two questions there was much shown,and, as I say, there was five or six specifications in which it was claimed there was negligence.

A examination of this bill of exceptions compels us to say that as to some, at least, of these averred acts of negligence, there was some evidence before the jury tending to establish them. The same may be said with reference to the question of superior and inferior. There was some evidence to prove that the relation between the said agent of the defendants and the plaintiff was that of superiority and inferiority; how much evidence, or the extent of it, or whether warranting a finding against the defendants or not, it would be improper for this court to say, now. We only announce that there was some evidence produced to the jury on this trial having a tendency to prove each and all of such averments in this petition as are necessary to state a cause of action. That being true, the court was not at liberty, had no right to take the matter from the consideration of the jury and direct a verdict for the defendants. It follows that the court erred in this action in that respect. The judgment will be reversed, and the motion for a new trial will be allowed, verdict set aside, and new trial granted at the costs of the defendants in error. Judgment against the defendants in error for costs on error, execution awarded, and case remanded to the court of common pleas for a new trial and further proceedings according to law.

Baldwin & Harrington, for plaintiff in error.

George H. Phelps, and J. O. Troup, for defendants in error.

A special mandate is also ordered sent to the court of common pleas for execution for costs.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan. Term, 1893.)
    Before Smith, Swing and Cox, JJ.
    THE EXPOSITION BUILDING AND LOAN CO. v. SPIEGEL, ASSIGNEE, et al.

      Decree in Probate Court in adversary proceeding- — Cannot be changed at a succeeding term of the court on mere motion, —
    The probate court has three terms in each year, under sec. 5365, Rev. Stat., and when in an adversary proceeding before the probate court, a finding and decree is once entered in one of the terms of court, such decree can not be set aside or changed at a succeeding term at the mere motion of one of the parties, but only by a regular proceeding under sec. 5307, Rev. Stat.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

The entry made by the probate court on February 6, 1891, was a final judgment as to all matters therein found and determined, and upon its face it purports to be final as to all matters under consideration, nothing being left for the further consideration of the court. From this order error or an appeal could have been taken to the common pleas. On March 2, 1891, the building association filed what is denominated, “Motion of Exposition Loan & Building Association to reconsider decree.” It is as follows:

“Now comes the Exposition Loan & Building Association and excepts to the findings of the court in the decree herein so far as it relates to payment cf taxes, costs, fees, commissions, etc., and moves that said decree upon said findings be reconsidered, and upon hearing said decree, so far as it relates to said items of distribution, be vacated and set aside.”

Afterwards, to-wit, on May 28, 1891, the probate court, upon the hearing of said motion, granted said motion, and did render a decree setting aside its decree of February 6, 1891, as to certain parts thereof, and proceeded to render another decree as to said parts. In doing this we think the court erred.

Wilson & Herrlinger, and Ramsey, Maxwell & Ramsey, for Plaintiff.

Jacob R. McGa,rry and A. H. Bode, Contra.

It is claimed that the probate court, in its administration of estates, has control over its docket and journals, and may make such orders from time to. time as seems to it proper; and that while the probate court has, under section 5365, three terms of four months each in each year, still, as to the administering of estates, the provision as to terms has no application.

But the judgment of the court of February 6,1891, purports to be an adversary proceeding upon a petition and several answers and cross-petitions, upon which, together with proofs and exhibits, a hearing was had, and of which said judgment was the result.

We know of no power of the probate court or any othexcourt to say that it may set aside its“properly made and returned decrees and judgments, ’’except in the manner prescribed by the statutes.

Of course all courts have the control ovef their journals ahd dockets so that they may at all times see that they “speak the truth.as to what the court has done; but when a matter has been controverted and the court has decided the question, and the judgment of court has been correctly placed on the journal, it is final as to the power of the court to change, except as pointed out by the statute;.and as to this the statute has made ample provision. Section 5305 has provided for what causes a decision may be vacated and new trial granted; but section 5307 provides when application must be made, and section 5354 et seq, provide when and how courts may vacate and modify their judgments after the term. And these provisions are applicable to the probate court.

The motion in this case did not come under any of the reasons given in the above sections — in fact no reason was given why the dpcree should be set aside. It simply asked that the decree be reconsidered and set aside, and this was made nearly a month after the final judgment of the court had been rendered. The action of the court was without authority of law, and this having been the judgment of the court of common pleas, said judgment is hereby affirmed.


text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan. Term, 1893.)
    Before Smith, Swing and Cox, JJ.
    CHAS. L. MITCHELL et al. v. ALBERT McCULLOUGH.

      Receiver not to be appointed except on clear and satisfactory evidence— Action based on contract indefinitly described. —
    A receiver should not be appointed by. the court where the evidence is not clear and satisfactory enough to justify such an order. Where in the petition asking for the appointment of a receiver the action is based on a contract which is described only as “similar” to a former contract between the parties, the terms of such contract are too-indefinitely described to justify the appointment of a receiver.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This is an action seeking to reverse the order of the common pleas appointing a receiver. The proof shows that for the season of 1890, which would include the balance of the year 1890 and a portion of the year 1891, the parties entered into a contract whereby McCollough was to furnish supplies to be used by the Mitchells in operating the “Oakley Rose Houses,” and in return the Mitchells were to furnish to McCollough the “cut” of said rose houses, to be by him sold, and after returning certain portions of the receipts for reimbursements and commissions, was to account to the Mitchells for the balance. This contract, the evidence shows, was carried out by both parties to their entire satisfaction. McCullough claims that “said” contract was renewed for the season of 1891-92, which was also carried out by both parties. He also claims that a “similar” contract was entered into for the season of 1892-3, which has only been partially carried out by the Mitchells, and that there is a balance of some $2,400 due him by reason thereof.

If there had been a breach of the contract as set out for the season of 1890-1, under the allegations of the petition, we think the court, under the law, would have been justified in appointing a receiver, for, under the law as we deem it to be, the case is eminently one for a receiver, for in no other way could the rights of McCullough have been protected. It is claimed by McCullough that afterwards this contract was, by consent, changed, so that he also furnished money to pay for work and labor and materials, the same to be governed by the same contract as to supplies, which money had heretofore been furnished by Jethro Mitchell, an uncle of the Mitchells. It was denied, however, by the Mitchells, that any such arrangement was made, but they asserted that the money furnished by McCullough was in the nature of a loan.

But the trouble, we find in the action of the court, is in the facts as to a contract for the season of 1892-3. The burden was on the plaintiff, McCullough, to show that there was a contract, the terms of the contract — in fact, what the contract was. All the evidence offered by McCullough as to this contract, is contained in the following from his affidavit (after setting out the contract of 1890-1): Affiant says that said arrangement and contract was carried out for the year 1890 and 1891, and that at the termination of said period, said contract was renewed upon the same terms for the year 1891-2, and that the same was performed and carried out, and that a“ similar ’’arrangement and con tract was entered into for the year 1892-3, and on the faith of it plaintiff advanced, as in his petition alleged, to the defendants, “the sums, ” etc. So, virtually, the whole of the evidence as to the contract is contained in these words,“and that a similar arrangement and contract was entered into for the year 1892 and 1893. ” This certainly is very indefinite. No statement is made as to whom or when made, or between whom, whether verbal or written. The statement is wholly that it is “similar.” Accurately speaking, “similar” does not mean the same; in fact, it would mean that while it resembled, it was not the same. Contracts may be similar, and yet differ in many respects. “Similarity includes only the idea of casual likeness.” (Crab’s Synonyms.)

It seems to us that the court should not, upon such an indefinite statement, have appointed a receiver, especially since the defendant, Mitchell, testifies that no other arrangement other than the one for 1890 and 1891 was ever entered into between the parties, but that the only relation that existed at that time was one simply of consignee and consignor. We are unable to find,from the record, the evidence of the terms of such a contract as would justify the court in the appointment of a receiver.

It was intimated to the court in the argument by counsel, that subsequent to the order appointing a receiver, a supplemental or amended petition had been filed, setting up other matter. We are not advised as to this, and of course, could not consider it. That is a matter for the further action of the court of common pleas. All we decide in this case is, that the court erred in appointing the receiver, on the ground that the evidence was not clear and satisfactory enough to justify the court in making the appointment at the time. The order of the court of common pleas will, therefore, be reversed, and the cause remanded for further proceedings.

Willy & Wald, for Plaintiff in Error.

L. G. Black, Contra.


text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan. Term 1894.)
    Before Smith, Swing and Cox, JJ.
    IN RE ESTATE OF JOHN F. ULHORN.

      Administration of Estates — Non-resident of state not eligible as administrator. — ■
    The probate court is authorized to refuse to appoint a son of a deceased as administrator of the estate on the ground that he is a non-resident of the state, and instead grant letters of administration to a creditor of the estate, not of kin of the deceased.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This case comes here on error from the common pleas, which court affirmed the judgment of the probate court of this county. In the probate court John H. Ulhorn and W. L. Meyer both made application to be appointed administrator of the estate of John F. Ulhorn, deceased. Said court, upon hearing, appointed W. L. Meyer, administrator. A bill of exceptions was taken by John H. Ulhorn, which sets forth the following facts:

“John H. Ulhorn made application to be appointed administrator with the will annexed of the estate of John F. Ulhorn, deceased, and William L. Meyer also made application. And this cause coming on further to be heard, by and with the consent of the parties, it is agreed that John F. Ulhorn, deceased on the twelfth of December, 1891, in the city of Cincinnati, leaving an estate to be administered upon; that said John IT. Ulhorn, applicant herein, is a son and next of kin of said decedent; that he resides in Evansville, in the state of Indiana; that W. L. Meyer is not next of kin of said decedent; that he is a creditor of said estate, his claim having accrued since the death of said John F. Ulborn; that there is no widow of said decedent, and no other next of kin has made application to be appointed as such adminT istrator. This being all that was offered or proved, by either party hereto, the court declined to, and did refuse to appoint John H. Ulhorn as such administrator, and did appoint said W. L. Meyer.”

Section 6005, Revised Statutes, provides how letters of administration of estates shall be granted, viz., first, the husband, widow or next of kin of the deceased; second, it further provides that if the persons so entitled to administer are incompetent, or evidently unsuitable for a discharge of the trust, or if they neglect, without any sufficient cause, to take administration of the estate, the court shall commit it to one or more of the principal creditors. The statute does not provide specifically how the court is to be informed upon the questions which may arise under this section, but certainly the court may hear evidence as to the qualifications of persons, and we think the court may act upon such knowledge as it may have had previous to the hearing, or may! upon the hearing of the case, from observation of the parties, as to their mental capacity, age, etc. The bill of exceptions says this was all the evidence offered or proved by either party, which evidence was as above set forth, which, in substance, was that Ulhorn was a resident of and the only next of kin, and Meyer was a creditor.

Error must affirmatively appear. The probate court may have been satisfied that said Ulhorn was not a suitable person to be appointed administrator of said estate, by reason of being a minor, or being mentally or physically incompetent to transact the business pertaining to said administration. • In order to have excluded this presumption in favor of the judgment of the court, the bill of exceptions should have contained a statement to the effect that Ulhorn was a suitable person in all respects to be appointed administrator, except the one which, from the arguments of counsel, we suppose to be the real question upon which the fight is made, to-wit: “That said Ulhorn was non-resident of the state of Ohio. ” But we think the court was authorized in refusing to appoint Ulhorn on the grounds of non-residence of the state. Section 6017, Revised Statutes, provides, that the court may remove at any time any administrator or executor upon twenty days’ notice, for drunkenness, gross neglect of duty, incompetency, fraudulent conduct, or removal from the state. Evidently these are causes of removal when ascertained after appointment. If known beforehand by the probate court, why should not they, or either of them, be good grounds for the court refusing to appoint the applicant? For instance, suppose the court should be informed of the fact that the applicant was incompetent, or was an habitual drunkard— would not this make the applicant an unsuitable person to be appointed as provided in section 6005? If so, why is not one who is a non-resident of the state an unsuitable person under said section? If he may be removed immediately after his appointment on this ground, why should he not be an unsuitable one to be appointed if he is already a non-resident of the state, provided the court so found? We think the court would be justified in so doing.

Goebel & Bettinger, fur Plaintiff in Error.

We see no error, therefore, in the judgment of the probate court in refusing to appoint Ulhorn,and in the appointment of said Meyer, and this having been the judgment of the common pleas, that judgment will be affirmed, with costs.


text:
    (First Circuit—Hamilton Co, O., Circuit Court
    Nov. Term, 1894.)
    Before Smith, Swing and Cox, JJ
    W. S. HOLDEN v. AUGUSTA LIPPERT.

      Attorney and client — Power of attorney to compromise claim for a less sum, without express authority.—
    An attorney to whom a promissory note is g;iven for collection, is not thereby authorized to make a compromise and receive part of the amount due in full settlement thereof. Express authority to do this is requisite.

      Same — Owner of claim may recover balance due.—
    The fact that the attorney holds the notes endorsed in blank by the real owner, and transferred them to the maker on the payment of a less sum than is due thereon, without authority from the real owner to do so, would not estop such real owner to recover the balance due on the notes, if the notes were then overdue, even if the maker had not known that the attorney was not the real owner, but held the notes only for collection.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The errors complained of are that the court overruled the motion for a new trial, and improperly received and rejected evidence, and erred in the' charge given to the jury, and refused to give certain special charges asked for.

The action was brought by Mrs. Lippert to recover the amount alleged to be due her on two notes for $250 each, executed by Holden, the defendant, to the husband of the plaintiff, and by him indorsed in blank and delivered to her before the maturity thereof. The answer averred, first, that there was no good or valid consideration for the notes; and second, that plaintiff paid nothing for them, and knew when she took them that there was no consideration for the same; and third, that about April 14, 1888 (after the maturity of the notes), the defendant, being insolvent, settled and compromised with and paid said notes to Mr. Molony, who then held said notes indorsed in blank by the payee thereof, by giving to him in full settlement and payment thereof a check of the Stone & Hines Company for $50 upon the German National Bank, which was afterwards paid; and said notes were then delivered by Molony to the defendant, who canceled them. These averments of new matter were denied by the reply.

The evidence in the case showed that the notes were given to Mr. Lippert by Holden on a good consideration, and the same were transferred by him to his wife for value, by indorsement in blank long before the maturity thereof; that after the maturity thereof, Mrs. Lippert placed them in the hands of Mr. Molony, an attorney at law, for collection, in the'condition in which she had received them from her husband, to-wit: with his name indorsed thereon in blank, and on April 14th, an arrangement was entered into by Molony and Holden by which it was agreedJJhat onpiayment of $50 to Molony by Holden the notes were to be given up and canceled ; and the money was then paid by a check on the Stone & Hines Company for that sum, payable to Holden and by him indorsed, which was duly paid. At this time Holden was insolvent, and he knew that Molony held the notes for collection'. The evidence was conflicting whether Molony had been authorized by Mrs. Lippert to make this settlement, and the court having submitted to the jury an interrogatory whether he was authorized to make such a settlement, and the jury having returned that he was not, we cannot say that their finding on this point was unwarranted. The jury, under the charge of the court that in any event the $50 paid to Molony must be credited on the note, returned a verdict of $450, the residue of the principal — by mistake, we suppose, allowing no interest, though the notes legally bore interest for several years. Judgment was rendered on this verdict, a motion for a new trial having been overruled.

We see no reason why a new trial should be granted cn the ground that the verdict was contrary to the evidence, unless as a matter of law, Molony, as attorney for Mrs. Lippert, was authorized to make such a compromise, or that, not having such authority, Holden was released by the compromise made, for the simple reason that Mr. Molony held the notes with the indorsement of the payee thereof in blank.

No claim is made, as we understand, from counsel for plaintiff in error, that an attorney who receives a note for collection, is thereby authorized to make a compromise and receive a part of the amount due in full settlement of the whole. Express authority to do this is requisite. But it is urged that when the attorney holds the note indorsed in blank, the maker is authorized to deal with him as though he were the real owner of i.t. An objection to the application of such a rule in this case, we think, is that it satisfactorily appears that Holden knew that Molony held these notes only for collection, and that when the proposition for settlement was made by Holden, Molony told him that he would have to wait and see if he could get authority to settle on those terms.

Oliver B. Jones, for Plaintiff in Error. Lipman Levy, for Defendant in Error.

But even if Holden had supposed that Molony was the real owner of the note, we understand the law to be that, as the notes were then overdue, Molony holding them simply as an attorney for collection, could not have transferred them so as to give a good title, even to a bona fide purchaser for value. Such purchaser would have taken subject to the right of the real owner (43 Ohio St. 284). We suppose the same principle would apply more strongly to a case like this before the court, and that Holden and Molony, by such a compromise, could not affect the real owner of the notes, even if Holden acted in good faith, and under the supposition that Molony was the owner of the notes, which he did not do.

Was there substantial error ih the rulings of the court as to the evidence complained of to the prejudice of the plaintiff in error? As shown on page 36, where the court refused to allow a question put by counsel for plaintiff in error to be answered, there was no statement of what he intended to prove. The evidence received, as shown on pages 43, 44 and 45, and objected to, was admissible on cross-examination, tending to show the credibility of the witness, and as laying the ground for subsequent impeachment of his testimony, and that on page 56 was impeaching evidence.

We see nothing in the charge of the court or the action of the court in refusing the special charges asked by the defendant below, prejudicial to the plaintiff in error. The general charge was as favorable to the defendant as it should have been, and the special charges asked (which we do not consider it necessary to discuss in detail), were either in conflict with what we have stated we consider the law to be, or omitted some qualification to make them good in this particular case. The judgment will therefore be affirmed with costs, but without penalty.


author: Stewart, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan. Term, 1893.)
    Before Smith, Swing and Stewart, JJ.
    (Judge Stewart of the second circuit taking the place of Judge Cox.)
    VILLAGE OF AVONDALE v. SCUDDER ET AL., and VILLAGE OF AVONDALE v. FLETCHER, ET AL.

      Seioer — Local drainage defined—
    The local drainage which is meant by sec. 2382 is such a sewer, or such a system of sewers, as looking to the dimensions, the mode of construction, the material used, the location for the outlet and the sanitary conditions, will not only benefit the persons who have constructed the sewers, but will not be detrimental to the rights of the public, not only of the present public, but of those who may, and who of right may, build in the vicinity ‘A, where the sewer is located.
    Error to the Court of Common Pleas of Hamilton County.
   Stewart, J.

We do not think there is any necessity for any further argument upon the propositions in this case. The action is brought to collect the assessment levied upon certain property in the village of Avondale to pay for the building of a sewer, established in a sewer district by the proper authorities of the village.

The defense, which is interposed to this claim of the village, is, that the parties who are sought to be assessed for the building of this sewer are already provided with local drainage.

That question, as was decided in the case of Wewell v. The City of Cincinnati, is a question of fact to be decided from the circumstances of each particular case. The court, in that case, declines to lay down any general rule by which the courts can be governed in the determination of that question.

But one thing they do decide, and that is, that the local drainage spoken of in section 2380 is not of necessity a system of drainage. We may, therefore, lay that question out of the ca3e, as to whether those parties are provided with a system of drainage. But are they provided with local drainage within the meaning of the statute?

The court, in the opinion, has afforded us considerable light upon the question as to what is meant by the use of the term “local drainage” in the statute. The language of section 2380, which is familiar to counsel, is that no lots shall be assessed for the construction of a street sewer or drain that do not need local drainage, or which are then provided therewith; and we think that Wewell v. Cincinnati 45 Ohio St. 407, is the case which should govern us in the disposition of the case under consideration. Counsel have referred to other cases, one of them decided by the circuit court of the Toledo circuit, others by the Superior Court of this city. While it is true that in form the judgments of the Superior Court in the cases which were cited, one upon one side, and the other upon the other, were affirmed in the Supreme Court, we have no means of knowing the grounds upon which they were affirmed; but the Wewell case does lay down the law to govern us, and by that, as I have said before, we are bound.

Now, in that opinion, the court says that the local drainage with which those lots are provided, must be of such a character as to satisfy the statute; ordinary surface drainage will not be sufficient.

What is required to satisfy the statute? The dimensions, the mode of construction, the material used, the location, the outlet, the sanitary conditions, and as if that were not enough, the court says that there are other conditions which should be looked into to determine whether or not the sewer or drain is built substantially in conformity to the requirements of the statute.

Now, applying those tests to the sewer, which is claimed to provide the parties in this case with local drainage, it is undoubtedly true that at the time this sewer was built those parties had a right to build a sewer to carry off the sewage from their houses and from their lots, and there seems to have been no objection to parties in a southwesterly direction from the original pipe which was laid, connecting pipes with the sewer pipes, as they chose, and every man seems to have done as seemed best to him when he built his house; he connected where he pleased, and by whatever method seemed to him best. And if the conditions had remained the same in the village of Avondale, it is possible — and I say only possible — that might have been considered such answer as was contemplated by the statute, should be provided for the drainage of lots.

But the conditions have changed. What might have done in a territory very sparsely settled will not do in one that is thickly settled; and that is sufficiently shown in this case by the testimony as to the condition of the outlet of this sewer. It ran into this drain, which was said to drain an area of over one hundred acres of land, which is becoming more thickly populated every day, ran into what would hardly be designated asa rivulet; and, as a consequence, we find that it stopped up until it became a nuisance, so that people riding along the road were annoyed by the stench arising from the flow of this sewer.

jDrausin Wulsin, for Plaintiff.

Q. D. Robertson, Joseph Qox and Q. W. Merrill, for Defendants.

Certainly it is not contemplated by the statute that the building of a sewer is simply to get rid of what is on a man’s lot by pouring it on to somebody else’s. It is to conduct away the sewage from the houses and lots so as to protect the citizens, the public generally, of the village, from the evil effects arising from the presence of sewage in and upon the lots. That I have a sewer ample to take off of my lot all that is offensive to me, and dump it on my neighbor, is not the part of a good citizen, nor is it complying with the requirements of the statute in our judgment. The local drainage which is meant by sec. 2380, in our judgment, is such a sewer, or such a system of sewers, as looking to the dimensions, the mode of construction, the material used, the location for the outlet and the sanitary conditions — I say such as will not only benefit the persons who have constructed the sewer, but will not be detrimental to the rights of the public, not only of the present public, but of those who may, and who of right may, build in the vicinity where the sewer is built.

Now, I agree with Judge Robertson that the question of the connection and disconnection of the sewer system of the city, may be dismissed from the case, but for an entirely different reason: The testimony satisfies us that the city never intended to make this sewer a part of its sewer system; that what it did, it did because it was compelled to do, first, by the board of health to abbate a nuisance; and second by the mandatory order of the court. It therefore cannot be said that the city ever adopted this as a part of its sewer system. This plan which was adopted by the city, was adopted, as is very apparent, with an utter disregard of this sewer, and without any intention of employing it for the purpose of draining the neighborhood. And we are therefore of the opinion that within the definition, as given in the case of Wewell v. Cincinnati, of what constitutes local drainage, these lots were not supplied with local drainage, and that a decree may be entered thereby.

Shauck and Shearer, JJ., concur.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O, Circuit Court,
    Sept. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    ASHLEY v. THE CITY OF TOLEDO.

      Gower map of Toledo — Signed and acknowledged by oioner of land, binding on their successors in title.—

    The Gower map of the city of Toledo, made in 1836-7, subdivided a certain tract of land in the city limits, laying it out in streets and lots numbering them, and in 1840 it was signed and acknowledged by the owners of a one-sixteenth interest in such tract of land, and the streets as laid out on such map were duly Accepted by the city. In 1845 a mortgage was executed by such .owners on their undivided one-sixteenth interest in the entire tract, without reference to the Gower map. The mortgage was foreclosed and. the property sold under foreclosure proceedings. Held,- that the dedication of the streets as they appear on the Gower map was binding on the purchasers in the foreclosure proceeding and their successors in title.

      Indefinite expression of claim of title as basis for future assertion of title — '“Believing” to be entitled.—
    A statement in a deed conveying certain lots in a city, that the grantor “believes” the lots extend to the middle of the street on which they are located, does not constitute a basis for a claim of anything more than such grantor actually owned.

      Occupation of part of street — What will not amount to adverse possession.—
    Where there is evidence that former owners of a lot adjoining a street have occupied and kept some kind of a fence in the middle of the street while such street was yet little used, which fence however was permitted to decay and disappear, this does not constitute such definite adverse possession as shows an intention to assert title, and will not deprive the city of the easement in that part of the street.
    Appeal from the Circuit Court of Lucas County,
   King, J.

The amended petition of tbe plaintiff in this case sets forth that he is the owner and in the actual possession of certain premises, which he describes; that the defendant sets up and claims an interest in said real estate adverse to the plaintiff. The premises are described as 33 feet in width fronting on Jefferson street, and running back from Jefferson street about 140 feet. The petition alleges that the defendant claims that the property in question is a part of Fifteenth street, and is the property of the defendant for street purposes; alleges that it is not a part of Fifteenth street;- that the defendant has no interest in the property, and that the same is the private and exclusive property of the plaintiff, and that the plaintiff and those under whom he claims have been in the actual, open, notorious, continuous and adverse possession of the premises for 25 years next before the commencement of this action; that if the defendant ever had any interest in the premises, it now has no right or interest therein, and its claim thereto is null and void. The plaintiff claims that his title may • be quieted.

The answer of the defendant denies the title of the plaintiff, and claims that this property in question is a part of Fifteenth street, being a street which runs at right angles with Jefferson street.

The facts in this case are somewhat voluminous;and cover quite a period of time and considerable record evidence; but this evidence and these records have been submitted to this court in three other cases, in which decisions were rendered, and those decisions cover and embrace many of the points made in this case, so that it will be unnecessary for me to repeat what has been said in those other cases, so far as the same is applicable to this case. But in some features this case is different from any of the others before the court. In 1837 certain persons were the owners of a tract of land in this city which was undivided. Among them, Hiram Pratt and William E. P, Taylor owned an undivided one-sixteenth part of the tract. The owners undertook about that time to make an agreed partition among themselves, and certain of' them made deeds, and among others, there was deeded by one of these owners, James Myers, to Pratt and Taylor, the owners of one undivided sixteenth, certain lots by numbers. These lots they said in that conveyance, were deeded by numbers as described on a plat of said tract recorded in the recorder’s office of Lucas county, in Vol. 2, page 510; and the lots in the tract of land known as the Bartlett farm, constituting part of this tract,'are numbered in the conveyance 13, 2c, 56, 70 and 75. Other conveyances were made to other parties, the purpose of all of these being a partition of the property. The map referred to as having been recorded in Vol. 2, page 510, was not so recorded. The page referred to is blank, A copy or a tracing of that map is presented here in evidence. I think it is cjuite clear from the evidence that on or about the time when these deeds were made, this map, if not recorded, was placed on file, or placed within the recorder’s office, where it has remained ever since. So far as Pratt and Taylor are concerned, who were the owners, as I have stated, of an undivided one-sixteenth of this property, they, in 1840, mortgaged the lots which I have named, together with some other property, to Charles H. Alley, president of the Bank of Commerce of Buffalo, to secure 1100,000, in a mortgage which, among other things, describes these lots by numbers; and it contains this language:

“All those certain lots in the Port Lawrence Division of Toledo, Lucas county, in the state of Ohio, which are designated on a map of said division in the office of the recorder of said Lucas county.’’

Following the description until it comes to the particular lot in this tract of land known as the Bartlett farm, it says:

“Also part of that part of Toledo aforesaid, and being part of the southeast fractional quarter section thirty-five, in township nine, south, of range seven, east, being part of the Bartlett farm, so-called, and which is designated on said map as lots numbers 25, 56, 70 and 75.’’ •

The evidence, I think, shows the inability of these persons to make an amicable partition of this property, There was, however, about the year" 1837, another map of this entire tract of land made. The county surveyor of this county appointed one Robert Gower to make a survey of the lots and lands in Toledo, and such a survey was made by Gower in 1836 and 1837, and that map is known in conveyances and otherwise as the Gower map. That divided this Bartlett farm into lots the same as it divided all the rest of the territory, and numbered them, and upon theGow'ermap was laid out the streets which cross these tracts of land in both directions, and there is upon it Jefferson street, and Madison street, parallel, and there are Fourteenth, Fifteenth and Sixteenth streets marked upon the plat, and the land between these sheets is laid off into lots and numbered. So far as that portion of the map referred to in the partition proceedings is concerned, the numbers of the lots agree with those on the Gower map, and their locations are identical, as are-the streets laid out; that is, upon that part of .the map called the Bartlett farm. This Gower map, I should say, was never recorded until 1876. There is no evidence that it was; but it is evident that it was on tile in the recorder’s office ever since it was prepared — certainly since the year 1840. This Gower map, it seems, is not the one referred to in the deeds made in pursuance of the partition, but in 1840 it was acknowledged by several of the owners of this property, and among others, Messrs. Pratt and Taylor, who made this mortgage, appear to have signed and acknowledged it. The acknowledgment shows that it was certified to in October, 1843, and it recites that Pratt and Taylor, by their authorized agent, had actually seen the map and signed it in January, 1840, but acknowledged it up to the latter date.

This mortgage was foreclosed in 1845, and the property was sold under foreclosure proceedings in 1846, and the title to the subsequent holders of the property grows out of that foreclosure procéeding. When they came to foreclose the mortgage upon this property, it was found that this partition •had never been carried out, as some of the owners of the property had never executed deeds, and there was no actual partition of the property; that although Pratt and Taylor were-the owners of an undivided one-sixteenth of the whole, still they hadn’t the whole'title to the lots described in the mortgage; and the court, without an issue made up for that purpose, proceeded to correct the mortgage, and to decree that it should cover, instead of all the lots named in the mortgage, the undivided one-sixteenth of this entire tract of land owned by Pratt and Taylor, and that one-sixteenth was ordered to be sold in that proceeding.

It is now argued that since this Gower map, upon which these streets were laid out and these lots numbered and set forth, was not acknowledged until October, 1840, by Pratt and Taylor, and they had conveyed their interest in the premises by a mortgage, all but the equity of redemption, in April of that year, that they could not by an acknowledgment upon this map dedicate any portion of that property for street purposes so as to affect the interest' of the mortgagee. It is a sufficient answer to that, it seems to me, to say that the mortgage by its description covered certain lots of land that it is conceded do not touch upon Fifteenth street at this point, and are not near the lot of land here in litigation. It did not purport to convey the undivided one-sixteenth part of that property, and it never conveyed , the one-sixteentli part of the tract until the decree of the court was made in 1845, purporting to correct the description. Tt has been held that a mortgage does not take effect as to third persons until it is recorded. I cite 10 Ohio St. 159; 1 Ohio St. 110; 26 Ohio St. 474; and a number of other authorities may be cited to support that proposition. This mortgage, when it was originally made, covered lots 25 etc; when corrected, it covered the undivided one-sixteenth part of this property. But the correction was in 1845. The Gower map was acknowledged, as it was conceded, in 1840, and thereafter it became a part of the re- . cords of this county. It was not actually recorded until 1876, but it was on file in the office of the recorder, and as it clearly set forth this property, and was actually executed, signed, and acknowledged by the owners of the very property or of the interest in the very property that is here in controversy, it must be true that they were bound by it. It was also by resolution of the city council duly accepted, so far as the streets are concerned

But this is only a part of the evidence in this case. This property passed through various proceedings that I need not refer to. There was a partition proceeding in court, and the interest of Pratt and Taylor came into the name of Jesup W. Scott, and he conveyed this land to Ezra Bliss by a deed dated October 30, 1849. The lot owned by the plaintiff in this case, is numbered upon all these maps as lot 6 of Mott’s addition, and is a part of this original tract. It appears to be bounded on the Gower map by Fifteenth street and Jefferson street on two sides. This conveyance purported to convey from Scott and wife to Ezra Bliss, a number of different lots,and among others,lot 6,the description reading, “also lot six of Mott’s addition, adjoining lot 1570.’' Then it proceeds as follows:

Lots 1645 and 6 not having been legally laid out by their owners, as is believed, extend to the middle of 14th street, loth street, and Jefferson street extended; the five lots first named above named- are bounded by 14th street, Madison street and 15th street of the Gower map, as adopted by the city, and the other two as above stated by 14th, 15th and Jefferson streets if extended on their middle lines respectively

Here is a distinct recognition by this owner of the Gower map. He describes all this block, and bounds it by the streets that are laid out upon it. WLen he comes to lot 6,’ he simply expresses the opinion that these lots are not legally laid out. Why that is so the deed-does not state. They are laid out by precisely the same proceedings and the same plats as axe all the other lots. And Pratt and Taylor, through whom this property came by virtue of 'this mortgage and otherwise, executed this map, and recognized it, and made their dedication upon it. Scott recognizes the máp and the streets upon it, but expresses the opinion that these two lots were not legally laid out; and therefore it is his opinion that they extend to the middle of the streets that bound them. This opinion conveys no title to the streets in question, and is of no importance.

Later on, Ezra Bliss conveys some of this property to George Roberts. The date of that conveyance is in 1861. And he describes the property as bounding on all these streets — Fourteenth, Fifteenth and Jefferson, “The premisés above described being the same premises-contracted to be sold by me, the said Bliss,to said Roberts, July 25th, A. D. 1857, and now conveyed in pursuance of the agreement in said contract contained, together with allj the privileges and appurtenances to the same belonging.” This conveyance does not describe this lot by number, but by metes and bounds,and it bounds this lot by the easterly line of Fifteenth street extended, and the northern line of Jefferson street extended. These two streets it would appear from that description were not yet opened,as he speaks of their lines extended as passing along and forming two of the boundaries of this property. Having gone around this property and described it by these bounds,he says: “Also all my right, title and interest in and to the land lying between the northwesterly side of the above bounded and described premises, and the center of Fifteenth street extended, ’ That deed was made in 1861. He did not assert in the deed that he owned a single foot of the land included in Fifteenth street. He bounds the land which he clearly did own by metes and bounds which are definite, precise and easily ascertainable, and mentions these very streets laid out on this map, and then says that he conveys all his right, title and interest in and to the street adjacent to the north-westerly side of the lot, being tlm 38 feet next adjoining. We do not think that this conveyance conveyed to Mr. Roberts any land in the street. To say, “I con rey to you all my right and title to any one of these streets”,absolutely conveys nothing whatever unless he owned it. His grantor did not undertake to claim, and did not sayr by his conveyance, that he owned any of the street, but he, casts a doubt upon the laying out of the33 lots, and for that reason he thinks they extend to the center of the street; an expression of no consequence whatever.

I need not go any further over that part of the case. We are clearly of opinion that the evidence in this case certainlyjjshows that the plaintiff here under these conveyances acquired no title to any part of the land within the limits of Fifteenth street, as shown upon the Gower map; and by the acts of his predecessors, is clearly estopped from disputing the legal dedication of that street. Everything the law required the city to do,it did, to accept the dedication of this property for these streets. It is held by the council for such purpose, unless they have lost it by reason of adverse possession. On that subject the proof in this case is a little different from that in the other cases. There is no evidence in this case that we have been able to discover in looking over this testimony, that shows that the plaintiff is in possession of this property, or was at the time of the commencement of this suit. But his predecessors in title have had some possession of it. There is no doubt rhat there has been a greater part of the time a fence along on Jefferson street, and that there was a fence somewhere near the middle of Fifteenth street, running back to the Territorial Road, so-called, and that there was also a fence along the Territorial Road; but the evidence is exceedingly indefinite and indistinct as to whether those fences have been maintained continuously during twenty-one years next preceding the commencement of ibid action. Notwithstanding the fact that Mr. Roberts testifies that he kept up the fence there,and that there was an old fence there when he went in possession which he kept up, the evidence is plain, and positive, and distinct, that people were driving through, either on one side or the other of that center fence running down Fifteenth street these years. The evidence is that they were driving on the east side of it part of the time; and I think that there is evidence showing that they were driving on the west side — driving on the Scott property, next to it. We have in the later decisions of the courts of Ohio, especially in 13 Ohio St. 42, decisions that such a' possession would not give title to the plaintiff as against the city. And this court has held the same in a case almost as strong, relating to one of these streets. There does not appeur anything in the testimony of Mr. Roberts to show that by his occupation and possession of the property he was intending to assert his title to it and deprive the city of it. He went there and found this property fenced as it had been, with an old rail fence, and he used it just as it was fenced, and he finally improved the property. He put up a new brick house in place of the frame one first there, and he kept the lot up, but he allowed this fence to go into decay,and it became out of repair, until it seems clear that citizens traveled through there back and forth along Fifteenth street at this place at will — perhaps not as regularly as they do now, but as often as they wanted to.

C. W. Everett and C. S. Ashley, for Plaintiff.

C. W. Watts, H. A. Marill, and J. H. Tyler, for Defendant.

So we do not think that the plaintiff has made out a case showing that he has acquired title by adverse possession.

Therefore the petition of the plaintiff will be dismissed.