author: Htjnsicker, P. J.

text:
    Belden et al., Admrs., v. Armstrong et al.; Lewis et al., Appellants; Scott et al., Appellees. Belden et al., Admrs., v. Armstrong et al.; Dick et al., Appellants; Scott et al., Appellees. Belden et al., Admrs., v. Armstrong et al.; Cates et al., Appellants; Horton et al., Appellees.
    (Nos. 4170, 4171 and 4177
    Decided May 16, 1951.)

      Messrs. Squire, Sanders & Dempsey, for appellants in case No. 4170.

      Mr. James W. Harrah, for appellants in case No. 4171, and for appellee Emma G. P. Dick in case No. 4177.

      Mr. James K. Lynch, for appellants in case No. 4177.

      Messrs. Wise, Roetsel, Maxon, Kelly & Andress, for appellee Clara Remington Scott in all three cases.
    Messrs. Roby & Arenson, for appellee Edith Cooper Moore in all three cases.
   Htjnsicker, P. J.

The appeals on questions of law in cases numbered 4170, 4171 and 4177 were argued and submitted together. Each of them poses similar questions for our determination.

F. Louise Butler died intestate in Akron, Ohio, on January 27, 1949. An action was thereafter instituted in the Probate Court of Summit County, Ohio, to determine heirship. The judgment in such action was filed on October 21, 1951, and the trial court therein determined in part that:

“The Court further finds that the decedent died leaving no surviving spouse, and no children or their lineal descendants; that her parents predeceased her; that she left no brothers or sisters whether of the whole or half blood, or their lineal descendants.

“The Court further finds that said decedent left no paternal grandparents nor maternal grandparents, but that lineal descendants of the paternal grandparents and maternal grandparents did survive said decedent, all of whom are hereafter named and found to be lineal descendants of said grandparents, and heirs of the decedent.

“The Court further finds that kin not lineal descendants of the paternal grandparents or maternal grandparents are not entitled, under the laws of the state of Ohio, to inherit.

‘ ‘ The Court further finds that Alexander Butler and Lydia Tarbell Butler were the paternal grandparents of the decedent, F. Louise Butler, and that their lineal descendants, hereinafter named, are entitled to one-half (V2) of the estate of the said decedent, F. Louise Butler.

“The Court further finds that Aaron Wade and Polly Brown were the maternal grandparents of the decedent, F. Louise Butler, and that their lineal descendants, hereinafter named, are entitled to one-half (V2) of the estate of the said decedent, F. Louise Butler.”

„ In the instant cases we are concerned with the deter-mi nation of the identities of those who are entitled to inherit the maternal half of the estate as descendants of the decedent’s maternal grandparents.

The maternal grandparents of F. Louise Butler, deceased, were Aaron Wade and Polly Brown Wade. Aaron Wade was born May 7, 1787, and died January 21, 1854. Polly Brown Wade was born January 9, 1793, and died May 3, 1883. To the marriage of these maternal grandparents, eight children were born.

The appeals in cases Nos. 4170 and 4171 raise the ques Jon of the correctness of the judgment of the trial court in its determination that: (1) Clara Remington L. Scott was an adopted child of Frances Parse LeFevie, a deceased cousin of the decedent, F. Louise Butler, and as such adopted child entitled to inherit a share of the estate of the decedent, F. Louise Butler; (2) Clara Remington L. Scott is entitled to inherit an additional share of such estate as the natural child of Inez Abbey Remington, a deceased cousin of the said F. Louise Butler; (3) Edith Cooper Moore was an adopted child of Frances A. Wade Cooper, a daughter of said Aaron Wade and Polly Brown Wade, and as such adopted child a first cousin of F. Louise Butler, deceased.

The appellants in case No. 4177 claim the trial court erred in holding that: (1) Clara L. Remington Scott, Edith Cooper Moore, and Emma G. P. Dick (Hower) were heirs of F. Louise Butler, deceased; (2) Clara L. Remington Scott was entitled to inherit a share of the estate of the decedent Butler as an adopted child of the said Frances Barse LeFevre, and an additional share of such estate as the natural child of the said Inez Abbey Remington. Counsel for the appellants in case No. 4177, at the time of oral argument, requested this court to dismiss the appeal as to Emma G. P. Dick (Hower). Such application was granted by this court.

Counsel for the appellants in case No. 4177, orally and by Ms briefs submitted herein, stated to this court that the appellants in such case No. 4177 wished to take a neutral position on the question of the validity of the adoption issues, but did desire to oppose the judgment of the trial court in granting to Clara L. Remington Scott the double inheritance from the decedent Butler’s estate.

The questions, then, that must be decided in these appeals involving the inheritance of the maternal half of the estate of F. Louise Butler, deceased, are:

(1) Is Edith Cooper Moore an adopted child of Frances A. Wade Cooper?

(2) Is Clara L. Remington Scott an adopted child of Frances Barse LeFevre?

(3) If Clara L. Remington Scott is an adopted daughter of Frances Barse LeFevre, is she entitled to inherit a share of decedent Butler’s estate, and also to inherit an additional share as the natural child of Inez Abbey Remington?

We shall discuss these questions in the order set out above.

Frances A. Wade, the eighth child of Aaron Wade and Polly Brown Wade, was born July 20, 1834 or 1835, and died in November, 1912. She married Edward Cooper, but the date of that marriage is not shown in the genealogical chart of the maternal side of the decedent Butler, neither does such chart show the date of his birth or death. The death certificate of Frances A. Wade shows her to have been a widow at the time of her death.

There were introduced into evidence, duly authenticated photostatic copies of the “consents and agreement” and “order for adoption of minor child” from Erie county, New York, showing that Mary Edith Morley, a minor - child, was by action of the proper court of such county adopted by Edward A. Cooper. These records show the adoption to have been made on February 19, 1887, pursuant to Chapter 830 of the Laws of 1873 of the State of New York.

These records further show that Frances W. Cooper subscribed and acknowledged before the then County Judge of Brie county, New York, her consent to the adoption of Mary Edith Morley (herein now known as Edith Cooper Moore), “in pursuance of Chapter 830, of the laws of 1873.”

The judicial order of adoption (after reciting that Edward A. Cooper, and Frances W. Cooper, his wife, appeared before the court), approved the adoption of Mary Edith Morley by Edward A. Cooper, and in writing there was inserted in such order, as one of the reasons for the said adoption, that “Edward A. Cooper and Frances W. Cooper are greatly attached to said child * * *.”

The evidence also shows that Edith Frances Cooper was married to Albert Griffith Moore in the city of Chicago on January 1,1908.

The last will and testament of Frances W. Cooper, deceased, dated December 17, 1908, provided, after certain minor bequests, that all of the property should pass to “my daughter Edith Cooper Moore.” Such will also refers several other times to “my daughter.” Frances W. Cooper had no other children except this alleged adopted daughter.

The testimony of the relatives of Frances W. Cooper is to the effect that Edith Cooper Moore was known as and considered to be the adopted child of both Edward and Frances W. Cooper.

The Adoption Act of the state of New York (Chapter 830, Act of 1873), in effect at the time Edith Cooper Moore was taken into the Edward and Frances W. Cooper family, provided in its Section 3 as follows:

“A married man, .not lawfully separated from his wife,- cannot adopt a child without the consent of his wife;.and a married woman, not lawfully separated from her husband, cannot adopt a child without the consent of her husband.”

There was no provision in such law for the joint adoption by husband and wife. These statutes (Chapter 830, Act of 1873) were the first general adoption laws enacted in the state of New York.

The status of Edith Cooper Moore as an adopted child of Frances W. Cooper is to be determined by the adoption laws of the State of New York which were in effect at the time of the claimed adoption; to wit, February 19, 1887. Barrett, Admr., v. Delmore, 143 Ohio St., 203, 54 N. E. (2d), 789, 153 A. L. R., 192.

The leading New York case on the subject of adoption is: In re Estate of Thorne, 155 N. Y., 140, 49 N. E., 661. The first paragraph of the syllabus of this case states the general law on this subject as we know it in Ohio, and is as follows:

”1. The adoption of children was unknown to the common law of England, and exists in this country only by virtue of statute.”

It is also accepted as fundamental that statutes in derogation of the common law are strictly construed.

We do not have in the claimed adoption of Edith Cooper Moore the situation wherein there is a claimed defective judgment of adoption or other defective adoption proceedings, or any evidence that a contract of adoption was entered into with Francés W. Cooper, fully performed by Edith Cooper Moore, but not performed by Frances W. Cooper. We do have a state of facts which show that Edward Cooper and not Frances W. Cooper adopted Edith Cooper Moore, although the adoption law of New York in effect at the time of the adoption permitted either a husband or wife (with the consent of the other) to adopt a child.

If taking a child into a home, rearing such child, giving it the family name, calling such child a daughter, and holding such child out to the relatives and friends as a daughter, is sufficient to establish a lawful adoption, then there would be no need for any statutory authority or judicial proceedings.

We believe something more than being reared as a member of a family and bearing the family name is necessary to show an adoption. A review of the New York authorities on this subject sustains our position. In re Estate of Thorne, supra; Smith, Trustee, v. Allen, 161 N. Y., 478, 55 N. E., 1056; In re Estate of Huyck, 49 Misc., 391, 99 N. Y. Supp., 502; Murphy v. Brooks, 120 Misc., 704, 199 N. Y. Supp., 660; In re Estate of Monroe, 132 Misc., 279, 229 N. Y. Supp., 476; In re Adoption of Cohen, 155 Misc., 202, 279 N. Y. Supp., 427; In re Adoption of Paden, 181 Misc., 1025, 43 N. Y. Supp. (2d), 305.

With .respect to the claim of Clara L. Remington Scott, there is no controversy over the fact that, as the natural child of Inez M. Abbey Remington, she is entitled to inherit as one of the heirs on the maternal side of F. Louise Butler, deceased. The dispute which does arise concerns her claim to an additional portion of the said estate as an adopted child of Frances Barse LeFevre, who, it is admitted, was a granddaughter of Aaron Wade and Polly Brown Wade, and a cousin of F. Louise Butler, deceased.

The evidence in support of this claim of adoption is as follows: She was known to the relatives as the adopted daughter of Frances B. LeFevre; the last will and testament of Mrs. LeFevre and the documents filed in the probate of such will, designated the claimant as a daughter; the statements made by Clara L. Remington Scott herself in certain guardianship proceedings that Mr. LeFevre was her father, and statements made by Mrs. LeFevre to other persons that this claimant was her daughter.

No one disputes the fact that Clara Remington a short time after the death of her mother, Inez Abbey Remington, went to live with her aunt and uncle. She lived in their home, was reared by them, and was known as their adopted daughter by relatives and friends.

There was no claim made of an agreement to adopt which the LeFevre’s never consumated, nor an adoption defectively executed. The sole evidence is that, by the statements and conduct of Mrs. LeFevre and their relatives and friends, the fact of adoption is established.

If, then, Clara L. Remington Scott was an adopted child under the law of New York, she must be so considered by the law of Ohio. Barrett, Admr., v. Delmore, supra.

The law of the forum, in this case Ohio, governs the admissibility of evidence to establish the fact, and the presumptions and inferences to be drawn from the evidence so submitted. Restatement of the Law of Conflict of Laws, Section 595.

Adoption is only a creature of statute, and we believe in this case that it was necessary to present some evidence to the trial court which showed an attempt to comply with the statute, or a proper contract of adoption; which acts, as liberally construed by the decisions of the courts of the state of New York, might then create the status of a child by adoption.

A review of the New York cases heretofore cited, when examined in the light of the evidence here, shows that there was no evidence before the trial court which justified the conclusion that Clara L. Remington Scott was the adopted child of Frances Barse LeFevre.

It therefore does not become necessary to determine the issue with respect to an inheritance of the double portion.

We find no proof that Edith Cooper Moore was an adopted child of Frances A. Wade Cooper, and we find no proof that Clara L. Remington Scott was an adopted child of Frances Barse LeFevre.

The judgment of the trial court in each case is reversed, and final judgment in behalf of each of the appellants is entered herein.

Judgment reversed in each case and final judgments entered.

Doyle, J., and Stevens, J., concur.


source: Caselaw Access Project

author: Hildebrant, P. J.

license: Public Domain

text:
    Segal, Appellee, v. Fleischer et al., Appellants.
    (No. 7618
    Decided December 8, 1952.)

      Mr. Milton H. Schmidt, Mr. Robert N. Gorman, and Mr. Froome Barbour, for appellee.

      Mr. Bert Et Long and Mr. Julius R. Samuels, for appellants.
   Hildebrant, P. J.

In this declaratory judgment action, the prayer of the amended petition is :

“Wherefore, plaintiff prays that the court declare the rights, duties and obligations of the plaintiff and defendant under the contract of April 21, 1932 as to whether the provisions of paragraph 13 which plaintiff is to insert in contracts with salesmen employed by him as hereinbefore noted are void and illegal, and whether such provisions could be inserted in agreements made by plaintiff with salesmen he employs in the future, and whether the provisions now inserted in the agreement with his salesmen are void and illegal, and for all other relief that may be just and proper.”

The pertinent part of the declaratory judgment appealed from is:

“The court, upon consideration, finds that in paragraphs 13, 23, 25 and 26 of said contract, there are provisions therein which restrict the parties and their agents from engaging in business which cover such large geographical areas that they are in restraint of trade, against public policy and void ab initio. The court further finds that the contract is entire and indivisible and because of said provisions, the entire contract is void and unenforceable.

“The court further does declare that the entire contract is void and unenforceable, and the plaintiff and the defendants are released from all its terms and obligations.”

The contract involved herein, executed by the parties on April 21, 1932, was for a period of 20 years employment of the plaintiff by the defendants. It has been performed by the parties and expired by its terms during the pendency of this action. Paragraph 13, upon which plaintiff seeks a declaration of rights, duties, and obligations of the parties is a restrictive covenant, imposing obligations which survive the termination of the contract.

These restrictions, contained in the latter part of paragraph 13, are:

“Second party covenants that as to all salesmen that may be employed by him pursuant to the provisions of this paragraph, he will, upon such employment, procure a written agreement from such salesmen (and turn same over to first parties) binding such salesmen to the same restrictions as are contained in this agreement in paragraphs 4, 5 and 6 and also binding such salesmen that they shall not, during their employment, as well as for a period of five (5) years after the termination of their employment, for whatever cause, engage in, accept employment from, or become interested, directly or indirectly, in a business similar to or of a like nature to the business carried on by first parties.”

All the evidence offered by both sides was adduced for its probative effect on paragraph 13 of the contract. No evidence was adduced by either side for its probative effect upon either the legality of the entire contract or paragraphs 23, 25, 26, or any other portion of the entire agreement.

The issues made by the pleadings are confined solely to a declaration upon the validity of paragraph 13.

While the court was required to consider the contract as a whole in connection with deciding the issues confined to paragraph 13, it appears from the declaratory judgment that it extended its jurisdiction beyond that invoked by the pleadings and assumed to decide issues upon which neither party offered evidence or requested decision. This, we think, was error, requiring modification of the judgment in that respect.

Decision in this court as to the validity of the restrictive covenant contained in paragraph 13 must necessarily be subordinate to the pronouncements of the Supreme Court of Ohio upon the subject.

The latest pronouncement coming to the attention of this court is contained in Briggs v. Butler, 140 Ohio St., 499, 45 N. E. (2d), 757, the syllabus of which is:

“1. A contract between an employer and employee whereby the latter agrees that subsequent to the termination of such employment he will not engage in a competitive business within a reasonably limited time and space is valid and enforceable where the restraint is not beyond that reasonably necessary for the protection of the employer’s business, is not unreasonably restrictive upon the rights of the employee and does not contravene public policy.

“2. A contract between an employer and employee may not unduly restrict the activities of the employee subsequent to the termination of the employment or limit the same to a greater extent than is reasonably necessary for the protection of the business of the employer, and the determination of such necessity is dependent upon the nature and extent of the business and the nature and extent of the service of the employee in connection therewith and other pertinent conditions.

“3. Where the contract involved is one for personal service in advertising and solicitation of patronage and the restrictive provisions thereof relate only to the ‘same kind or similar business, in competition with’ the employer and do not undertake to otherwise restrict or limit the trade, occupation, profession, business or activities of the employee, the contract is not unreasonably restrictive upon the rights of the employee and does not thereby contravene public policy. ’ ’ The restrictive covenant in the Briggs case was:

“8. * * * Now, therefore, for and in consideration of this employment and the compensation to be earned and paid to the hostess hereunder, the hostess covenants and agrees (which covenant and agreement is the essence of this contract) that she will not, during the term of this employment and for a period of five whole years thereafter, engage, directly or indirectly, for herself, or as representative or employee of others, in the same kind or similar business, in competition with the company in Toledo, Ohio, and/or in any city, town, borough, tdwnship or other place in the United States and Canada, in which the company is then engaged in rendering its service. ’ ’

The Common Pleas Court “blue penciled” that part of the restriction reading “and/or in any city, town, borough, township or other place in the United States and Canada, in which the company is then engaged in rendering its service,” and granted injunctive relief to plaintiff confined to the city of Toledo.

Upon appeal on questions of law and fact, the Court of Appeals heard the case de novo and rendered judgment against plaintiff, dismissing the petition. On appeal to the Supreme Court, the judgment of the Court of Appeals was reversed and a decree similar to that of the Common Pleas Court was entered.

No comment or reference to the actual “blue pencilled” effect given to the restriction appears in the Supreme Court opinion. We, therefore, do not know whether or not had the language of the restrictive covenant not been susceptible of “blue pencilling” the court would have reached the same conclusion.

The case at bar contains no restriction as to space in the language employed by the parties, and, therefore, fails to meet the requirement of being reasonably limited as set forth in the syllabus of the Briggs case.

Of many citations contained in able briefs of all counsel, the case of Emler v. Ferne, 23 Ohio App., 218, 155 N. E., 496, decided by this court appears most in point. There, the court, speaking through Hamilton, J., said at page 223:

“The negative covenant as to space is a general restraint of trade, and is not divisible. Had the covenant provided that the parties should not engage in the same or similar business for the period of 100 years, it would not be contended that the court might grant the injunction for a period of 5 years. In other words, the court cannot make the contract for the parties. He cannot place a restriction on a negative covenant where there is no valid negative covenant.”

Were the legality of paragraph 13 conceded and our efforts directed solely to giving it reasonable application in the light of the whole agreement, it might very well be concluded that it was confined to plaintiff’s territory, but, the agreement of the parties has been integrated in an unambiguous writing. It, therefore, appears to the court to be beyond judicial function to impose limitations not expressed.

We, therefore, conclude that the judgment of the Common Pleas Court, finding against the validity and enforceability of paragraph 13 was correct.

The judgment is, therefore, modified in accordance with this opinion and affirmed as modified.

Judgment accordingly

Hildebeant, P. J., Matthews and Ross, JJ., concur.


author: Savord, J. Conn, J.,

text:
    Kubin et al., Appellants, v. Reineck, Appellee.

      (No. 627
    Decided April 21, 1952.)

      Messrs. Miller & Miller, for appellants.

      Messrs. Carpenter & Carpenter, for appellee.
   Savord, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court. The parties are designated herein as they stood in the trial court.

The record discloses that plaintiffs are the owners of approximately three-fourths of an acre of land located about two and one-half miles west of Norwalk, Ohio, extending approximately 265 feet along the south side of route No. 20 and lying between what has been referred to as new route No. 20 and old route No. 20, the parcel being almost triangular in shape. The plaintiffs acquired the property in January 1946 from one George M. West, who on September 6, 1940, had granted “a perpetual easement and right of way for public highway and road purposes in, upon and over the lands * * to the state of Ohio. The easement included the entire triangular parcel. The defendant is the owner of approximately three and one-half acres of land located immediately to the east of the land of plaintiffs and about 1949 erected upon his property a substantial building employed for tavern purposes.

In their petition, the plaintiffs allege that on or about July 1, 1949, and on divers days thereafter the defendant “unlawfully with force broke and entered” the land of plaintiffs, cut down and carried away fruit, cedar, and shade trees, grapevines, asparagus patches, roses, and lilacs, dug up and carried away topsoil, dirt, sand and gravel from an acre of ground, and converted and disposed of the same to his own use, leaving the land barren, in waste and exposed to erosion, all to the damage of plaintiffs.

In his answer, after entering a general denial of all allegations contained in the petition of plaintiffs, defendant alleges that the state of Ohio, through its highway department, having acquired a perpetual easement over certain land, including that described in the petition, in order to construct a four-lane highway now known as United States route No. 20 and an approach road from the Ridge road (formerly known as United States route No. 20), thereafter proceeded to construct such road and the approach road thereto.; that when the highways were completed, an embankment remained on the real estate described in the petition, interfering with the vision of operators of motor vehicles when entering the four-lane highway from the approach road and when entering the approach road from the four-lane highway; that as the owner of the land located immediately to the east he constructed a business building thereon; that having graded his land, defendant secured permission from the state highway department to grade that portion of the land lying within the triangle bounded by old route No. 20, new route No. 20 and the property of defendant ; and that defendant removed an embankment located thereon and graded and seeded the triangular plot of land so as to improve the view of operators of motor vehicles using said highways, thereby eliminating potential hazards.

Following submission, the jury returned a verdict in favor of the defendant, and, thereafter, a motion for new trial, duly filed by plaintiffs, was overruled and judgment entered on the verdict.

In prosecuting this review, plaintiffs submit three assignments of error, namely:

(1) The court erred in overruling plaintiffs’ demurrer to defendant’s second defense.

(2) The verdict and judgment are against the manifest weight of the evidence and contrary to law.

(3) The court erred in its charge to the jury.

The record clearly establishes that new route No. 20 is a “limited access” highway. Defendant, deeming additional entryways to his property necessary, filed an application with the Director of Highways, seeking authority to establish such entryways.

Thereafter, on May 26, 1949, the director granted defendant permission to do the following:

“(1) Construct a 40-foot drive to a business place with an appropriate median strip over the existing 8-inch tile in the ditch line along the south side of U. S. Route 20 at a point approximately .8 miles west of the Norwalk city limits.

“ (2) Also to construct a new catch basin at the west edge of the above drive for storm water only.

“(3) Also to construct a 50-foot drive to business place on to access road between present U. S. Route 20 and S. R. No. 61 as per attached plan. No drainage structure necessary for said drive.

“(4) Also to grade area to elevation 3 feet above U. S. Route No. 20 pavement for improved site condition. Area to be seeded to grass upon completion of grading. ’ ’

The italic in the above detailed provision is ours and indulged for the purpose of emphasizing the provision around which this case centers. It is the claim of the defendant that all he did was done pursuant to and in strict compliance with the provisions of such permit.

Assuming that the permit by its expressions comprehended the grading of the triangular parcel of land owned by plaintiffs subject to the easement of the state, as well as the land owned by the defendant, the question arises whether defendant had authority to do that which he admittedly did. Surely such right could be only of a nature and character as derived from a grant of authority conferred by the highway director, acting in his official capacity. Considering the easement granted to the state by plaintiffs’ predecessor, did the director possess the right to direct and authorize the particular acts in and upon the property of plaintiffs?

Generally speaking, it is recognized in Ohio that, as stated in the first paragraph of the syllabus in Daily v. State, 51 Ohio St., 348, 37 N. E., 710, 46 Am. St. Rep., 578, 24 L. R. A., 724:

“An owner of land adjoining a public highway whose title extends to the center of the road, who has cultivated shade trees, planted partly on his own land and partly in the line of the highway within the bounds of his deed, has a property interest in such trees, and the right to their enjoyment subject only to the convenience of public travel.”

To the same effect are the holdings in Ohio Bell Telephone Co. v. Watson Co., 112 Ohio St., 385, 147 N. E., 907, and Hofius v. Carnegie-Illinois Steel Corp., 146 Ohio St., 574, 67 N. E. (2d.), 429.

First impression might persuade that, consistent with the reasoning of the foregoing cases, the director would, in the instant case, lack authority to remove the trees, vegetable growth and garden found upon plaintiffs’ land and to cause the removal of the described elevation.

However, such conclusion ignores the right and power of the director, once an easement has been acquired, to accomplish “the convenience of public travel.” As long ago as in Phifer v. Cox, 21 Ohio St., 248, 8 Am. Rep., 58, it was made clear that the acquirement of an easement for a public road carries with it “the powers and privileges incident to that right.” We are satisfied that the comprehensive powers granted the director by Section 1178-2, General Code, and related sections, enables such director, in the exercise of a sound discretion, to take all steps in his judgment required with respect to land over which the state owns an easement as will better provide facilitiy of travel and efficient enjoyment of the highway system. In the absence of any evidence tending to show an abuse of discretion upon the part of the director, it must be considered that he was warranted in directing the grading of the area to an elevation three feet above route No. 20 and to delegate such responsibility to the defendant, if he did so direct. If so, the defendant could not be held to be in the role of a trespasser and could not be required to respond in damages.

But did the director so direct? What does the term, “area,” as employed in the permit, mean and comprehend? Was it intended to cover solely the property owned by the defendant or did it likewise include the triangular parcel owned by the plaintiffs? A mere reading of the permit makes manifest how indefinite and uncertain is its provision in this respect and renders clear the necessity of its construction.

Generally speaking, if there is no ambiguity of terms and no dispute as to the meaning of a written instrument, it is exclusively the duty of the court to construe such instrument and to determine the effect of its pror visions as a matter of law. If, however, the terms of the instrument are ambiguous and indefinite and there is conflicting evidence as to the meaning thereof, a question presents itself requiring submission, under proper instructions, to the jury. 39 Ohio Jurisprudence, 746, Section 150; Washington Mutual Ins. Co. v. Merchants & Manufacturers Mutual Ins. Co., 5 Ohio St., 450; Hassett v. Watson, 12 Ohio App., 451; Filtro Import Co. v. Janszen Co., 36 Ohio App., 63, 172 N. E., 578; Industrial Commission v. Henry, 43 Ohio App., 20, 182 N. E., 603; Woodward v. Glaser, 57 Ohio Law Abs., 180, 93 N. E. (2d), 785.

It being apparent that reasonable minds could differ in reaching a conclusion as to just what was intended by the term, “area,” as carried in the permit, the action of the trial court in submitting this question to the jury was correct.

In submitting the question, however, the court said:

“Now this permit will be with you when you go to your jury room and I would look it over. I am not going to read it, there is no question about the fact that they gave him permission to make an entrance there, it also sets forth he was given the right or permission to grade to three feet above route 20, and the area was to be seeded with grass upon completion of the grading. It further states that maintenance of said pipe and drives shall be the sole responsibility of the property owner.”

Thus the court in submitting the one important controverted fact to the jury for its determination at the same time instructed the jury in unqualified terms that no question existed that the highway director had granted the defendant permission to make an entrance upon the lands of plaintiffs and to do that which defendant did. The instruction thereby invaded the province of the jury to determine the exact meaning of the permit granted by the highway director, especially with respect to what was intended by the term, “area.” The paradoxical situation thus created could result only in confusion so far as the jury was concerned and necessarily operated to the substantial prejudice of the plaintiffs. The resulting situation illustrates the possibility of error inherent in venturing comment upon the evidence.

We have examined plaintiffs’ other assignments of error and find that they can not be sustained.

Because of the prejudicial error found in the charge, it follows that the judgment must be and it is reversed, and the cause is remanded for a new trial.

Judgment reversed.

Fess and Conn, JJ., concur.

Conn, J.,

concurring. I concur in the reversal of the judgment of the trial court on the ground stated in the opinion of Judge Savord. Further, I am of the opinion, on the issues raised oh the pleadings, including the affirmative defenses in the answer of defendant, that the record does not show that the state, under its easement, after the highway was constructed, opened and used for road purposes over a period of years, had the right to go upon plaintiffs’ land and appropriate the improvement and the land itself without an affirmative showing that plaintiffs had been compensated on the basis of fair and reasonable value.

On this premise, it follows that the permit issued to defendant did not confer on him a legal right to appropriate plaintiffs’ property for his own use and benefit without plaintiffs’ consent or reasonable compensation.


author: Wiseman, J.

text:
    City of Columbus, Appellant, v. Rodgers, Appellee.
    (No. 4753
    Decided October 15, 1952.)

      Mr. Richard W. Gordon, city attorney, and Mr. Walter W. Grelle, for appellant.

      Messrs. Hamilton db Kramer, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, affirming a judgment of the Municipal Court of Columbus, sustaining a demurrer to the affidavit.

The defendant was charged with a violation of the “assured clear distance ahead” provision of ordinance No. 1302 of the city of Columbus, which is identical with Section 6307-21, General Code.

The pertinent part of the affidavit is as follows:

“ * * * did then and there unlawfully operate a certain motor vehicle at an excessive speed, to wit, an automobile upon Parsons ave., — street in said city, said place being a 35 mile-per-hour zone, and which speed was greater than would permit him to bring said automobile to a stop within the assured clear distance ahead; striking another vehicle in the rear * * * contrary to the ordinance 1302 of said city.”

It will be observed that the affidavit did not aver at what rate of speed the defendant was driving the motor vehicle.

The sole question for determination is the sufficiency of the affidavit. Ordinance No. 1302, in part, provides:

“ * * * no person shall drive any motor vehicle, street car or trackless trolley in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. ’ ’

The ordinance provides further:

“In every charge of violation of this section the affidavit shall specify the time, place and speed at which the defendant is alleged to have driven, also the speed, if any, which this section declares shall be prima facie lawful at the time and place of such alleged violation. ’ ’ (Emphasis ours.)

The defendant contends that the affidavit is insufficient to charge an offense under the ordinance in that the rate of speed was not alleged, as expressly required by the ordinance. This contention was sustained by the lower court. The prosecution contends that it is not necessary to allege the rate of speed; that the rate of speed is difficult to ascertain as a practical matter; and that the latter provision of the ordinance above quoted requires the rate of speed to be alleged only when the defendant is charged with the violation of the provisions of the ordinance which control the rate of speed of motor vehicles.

To give this interpretation to the ordinance the court would be required to construe it as if it read, ‘ ‘ in every charge of speed violation of this section,” etc. This would require the court to rewrite the ordinance by judicial decision. This, the court may not do. The court may not give the ordinance the construction suggested by the prosecution merely because the prosecution may encounter some difficulty in securing the proper evidence.

The pertinent words of the ordinance, to wit, “in' every charge of violation of this section” are sufficiently definite and comprehensive to encompass all charges brought for a violation of this section and were not intended to apply simply to certain charges relative to speed to the exclusion of others.

The prosecution contends that a criminal charge in the language of the statute is generally held to be sufficient. , As a general rule this is true, but it is not sufficient to allege the offense in the language of the statute, generally, where the statute itself requires certain specific averments to be made. All the elements necessary to constitute the offense, including specific facts required by the ordinance, must be averred in the affidavit.

In the instant case, it was essential to allege the rate of speed, as the ordinance requires, in order to charge an offense under the ordinance. The omission to do so constituted a fatal defect in the affidavit. The affidavit was insufficient and the demurrer was properly sustained.

We find no error assigned well made.

Judgment affirmed.

Hornbeck, P. J., and Miller, J., concur.


author: Thompson, J.

text:
    Gates, Appellant, v. Big Boy Beverages, Appellee.
    (No. 22568
    Decided June 30, 1952.)

      Mr. B. B. Murad, for appellant.

      Messrs. McConnell, Blackmore, Gory é Burke, for appellee.
   Thompson, J.

This is an appeal to this court on questions of law and fact from a ruling of the trial court on application for instructions by a notary public in the course of taking depositions. The action in the trial court was one for personal injuries on the part of plaintiff, arising out of an automobile accident. The defendant served notice to take depositions upon the plaintiff and subpoenaed plaintiff to testify as if under cross-examina.tion under the statute. During the course of the depositions, counsel for defendant asked plaintiff certain questions concerning the names of her doctors, hospitals attended, name of the X-ray photographer and other information which plaintiff, on instructions of her counsel, refused to answer. The notary public in each instance instructed plaintiff to answer the question and plaintiff refused so to do.

The questions which plaintiff refused to answer were thereupon certified to the Common Pleas Court by the notary, with a request for instructions, and the trial court ordered plaintiff to answer the questions thus certified. From that order of the trial court, plaintiff then filed the instant appeal to this court on questions of law and fact. Defendant in turn filed herein a motion to dismiss the appeal and the motion has been submitted on briefs and oral argument.

The defendant urges that the order of the trial court is not such a final order as can be appealed to this court on questions of law under Section 12223-2, General Code, and also contends that an appeal on questions of law and fact does not lie under Section 12223-1, General Code, since there was no trial of facts in the Common Pleas Court.

Under authority of LeMaistre, Admr., v. Clark. 142 Ohio St., 1, 50 N. E. (2d), 331, it is our opinion that the instant appeal is not properly one on questions of law and fact. That case points out in the second paragraph of the syllabus that the appellate jurisdiction granted to Courts of Appeals of Ohio under Section 6, Article IV of the Constitution, does not authorize a Court of Appeals to conduct a trial on issues of fact unless such trial has been had in the court of first instance. In the present case there was no trial of factual issues in the trial court, the question decided being one of law.

We turn, therefore, to the other question before us, namely, whether the order of the trial court constituted a final order under Section 12223-2, General Code, and Section 12223-3, General Code, authorizing an appeal on questions of law, so that this court in dismissing the appeal on questions of law and fact should retain the appeal as one on questions of law under Section 12223-22, General Code.

Sections 12223-2 and 12223-3, General Code, provide as follows:

Section 12223-2. “An order affecting a substantial right in an action when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed, with or without retrial, as provided in this title * *

Section 12223-3. “Every final order, judgment or decree of a court and, when provided by law, the final order of any administrative officer, tribunal, or commission may be reviewed as hereinafter provided, unless otherwise provided by law, except that appeals from judgments of justices of the peace upon questions of law and fact shall be taken in the manner now provided for in General Code Sections 10382 to 10398, inclusive. ’ ’

The precise question before us is whether the ruling of the trial court, ordering a party on cross-examination to answer various questions in a deposition hearing, and made upon request for instructions by a notary public, constitutes a final order under the sections quoted. We find no case in Ohio deciding this precise point but, under the Ohio cases discussing these sections, we believe it clear that the order of the trial court did not affect a substantial right of plaintiff in the action, since it did not determine the action and prevent a judgment within the language of Section 12223-2, General Code. The order of the trial court is therefore an interlocutory order and not a final order and the requirement that plaintiff answer certain questions at a preliminary hearing, which she would doubtless be required to answer at the time of trial on the merits, deprives her of none of her rights.

There are many orders made at preliminary hearings, or during the course of trial, which do not constitute final orders in a case, and the purpose of permitting an appeal in the case of a final order or judgment, and refusing to permit an appeal of an interlocutory order, is to prevent piecemeal appeals which would unduly delay the course of justice and indefinitely postpone a final hearing on the merits. Courts, as well as laymen, are properly concerned about the law’s delays and where efficiency can be promoted without injury to the litigant, the efficient route should be observed. The rulings of a court with reference to introduction or exclusion of evidence upon a trial are examples of interlocutory orders to which the party who deems himself prejudiced may save his exceptions. A ruling thus seasonably objected to may later be presented to the appellate court on an appeal of the entire case, but it is obvious that a party cannot and should not be permitted to appeal, one by one, each individual ruling during the course of the trial to which his interests may suggest exception. His rights will be adequately protected if he signifies at the time that he is saving an exception to the particular ruling complained of, and reserves the question, along with other rulings objected to, for presentation to the appellate court after final judgment in the case.

Besides the various rulings of the trial court in the admission and exclusion of evidence, there are many other rulings prior to the final submission of the case on its merits which are recognized as interlocutory only, and the remedy by the aggrieved party in such instance, in case of an adverse ruling by the trial court, is by exception at the time, thus permitting review of the trial court ruling at a later date in the appellate court. Upon this point see 2 Ohio Jurisprudence, 168, Appellate Review, Section 89, as follows:

“A preliminary or interlocutory order is not reviewable on appeal on questions of law, formerly error. General policy is opposed to separate reviews upon interlocutory orders. The prompt and orderly disposal of litigation is an object much to be desired, and the entertainment of appeals from various orders made by the trial court during the progress of the main action is not in pursuance of such object.”

It has been repeatedly held that an order sustaining or overruling a demurrer is an interlocutory and not a final order, since such an order, without more, leaves the action still pending in the lower court. Fornoff v. Ehlert, 53 Ohio Law Abs., 96, 85 N. E. (2d), 308; Davis v. Moor, 86 Ohio App., 213, 84 N. E. (2d), 305. In the case of the sustaining of a demurrer by the trial court, for example, it is only where the losing party refuses to plead further, and tests the sufficiency of the trial court’s action by permitting dismissal and final judgment to be rendered against him, that appeal can be prosecuted.

Plaintiff very possibly feels that being required to disclose a part of his case under cross-examination in advance of trial may prejudice him materially, but the fact is that he would be required to disclose similarly pertinent information at the time of trial and the same statute (Section 11526, General Code), permitting him to be examined by deposition in advance of trial, gives him similar relief with respect to ascertaining his opponent’s defense. It may well be said of this section what was stated by Mr. Justice Murphy of the United States Supreme Court with respect to the federal rules of civil procedure in the case of Hickman, Admr., v. Taylor (1947), 329 U. S., 495, 507, 91 L. Ed., 451, 67 S. Ct., 385:

“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation * * The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise.”

In holding that no final order is present which would authorize an appeal on questions of law to this court, we may observe that there is a remedy open to a litigant who is asked on deposition questions he believes prejudicial to his rights. His remedy is to refuse to obey the court’s order that he answer questions asked of him and to let himself be committed for contempt. Such order, entered by a trial court, is a final order from which he may appeal on questions of law. Butterfield v. O’Connor, 2 W. L. Gaz., 192, 3 Dec. Rep., 34. Furthermore, he may seek vindication in a separate habeas corpus proceeding which would necessarily raise the question of the legality of the commitment, in turn depending upon the legality of the order to answer. 14 Ohio Jurisprudence, 39, Depositions, Section 39; In re Deye, 85 Ohio App., 302, 88 N. E. (2d), 60; In re Story (unreported), Court of Appeals of the Eighth Appellate District, No. 22464, decided June 30, 1952.

Although research has disclosed no case in Ohio directly in point we refer to Kleybolte v. C. H. & I. Rd. Co. (1896), 11 O. D. (N. P.), 817, a Superior Court case in Cincinnati, Ohio, holding that an order permitting plaintiff stockholder to inspect corporate books and records is not a final order.

For the reasons indicated the motion to dismiss the appeal is granted.

Motion sustained.

Skeel and Hurd, JJ., concur.


author: Conn, J.

text:
    Church of God, Appellee, v. Glann et al.; Seubert et al., Appellants.
    (No. 4597
    Decided January 28, 1952.)

      Messrs. Cline, Bischoff & Cook, for appellee.

      Mr. George R. Effler and Mr. Joel 8. Rhinefort, for appellants.
   Conn, J.

This action was brought by plaintiff against defendants in the Court of Common Pleas of Lucas County, Ohio, to quiet the title to one acre of land, situated at the corner of Dorr street and Reynolds road in Adams township,- Lucas county, Ohio.

The facts are not in dispute. The pleadings disclose the following material facts: On May 1, 1882, Henry P. Glann and Vincent Glann conveyed the premises by quitclaim deed to plaintiff’s predecessors in title, to wit, Henry V. Hawkins, L. C. Rowe and Harvey Kellogg, trustees, “to have and to hold the same to them * * * their heirs and assigns forever, as fiscal trustees in trust * * On May 9, 1883, the trustees did “bargain, sell and quitclaim” the land by quitclaim deed to The Woman’s Christian Association, an Ohio corporation, “their heirs and assigns forever,” and thereafter, on December 27, 1934, said association did “bargain, sell and convey” by warranty deed, said parcel of land to plaintiff, a charitable corporation, “its successors and assigns forever.”

The deed to the trustees, above mentioned, contained the following provisions:

“To have and to hold the same to them the said Hawkins, Rowe and Kellogg their heirs and assigns forever, as fiscal trustees in trust for the purpose of erecting and maintaining thereon a Church and house of religious worship under the control of a benevolent and charitable association of the ladies and women of said township of Adams and the adjoining locality and with the duty and obligation hereby imposed to convey to the said association said real estate within two years herefrom whenever said association should be incorporated under the provisions of sections 3791, 3792 and 3793 of the Revised ‘Statutes’ of the state of Ohio. Now if said trustees or said association shall within two years herefrom erect upon said real estate a good and substantial Church or house of religious worship costing not less than twelve hundred dollars and shall thereafter keep and maintain the same as a place of religious worship and shall surround said premises with a good and substantial fence and shall maintain the same in good repair and convey said real estate to said association when the same shall be ‘encorporated’ and within two years herefrom and shall pay all taxes assessed or levied on said land then this conveyance shall be and remain in full force and effect otherwise the same shall be void and said real estate shall revert to ‘to’ the undersigned grantors.”

It is stipulated that the several provisions above set forth in the Glann deed were performed within two years, including the erection of the church building at a cost in excess of $1,200; that Henry P. Glann died February 21, 1899, and Vincent Glann died February 11, 1905; that defendants are all the known heirs of such decedents; that plaintiff intends to sell said real estate and is now seeking authority so to do at the price of $41,000; that plaintiff does not intend to disband or discontinue its religious purposes; that it has purchased property in the immediate area on Dorr street, two or three blocks from its present location, upon which it intends to erect a house of worship for the purpose of carrying on the work for which plaintiff was founded; and that plaintiff has the legal right to bring this action to quiet the title to such land.

The claim of defendants is grounded on the provisions in the deed, particularly that if the trustees or the association “shall thereafter keep and maintain the same as a place of religious worship * * * then this conveyance shall be and remain in full force and effect otherwise the same shall be void and said real estate shall revert to ‘to’ the undersigned grantors.” By reason of this provision, the defendants urge that the Glann deed conveyed only a determinable fee, that if and when the use of the property conveyed was no longer devoted to church purposes, the estate of the grantees and their successors automatically terminated, and that thereupon the conveyance would be void. Consistent with this contention, defendants claim that the reverter clause in the deed was not necessary, being merely surplusage, and that the abandonment of the property for church purposes would give the defendants, as reversioners, the complete dominion of the land.

However, under the well-known rule, a court of equity regards a written instrument in its entirety and considers it from the four corners in order to discover the true intention of the parties. In harmony with this rule, each and every part of the deed must be considered in relation to each other part. No portion of the deed in question may be disregarded or treated as surplusage, and technical terms and provisions can not prevail as against the apparent intention of the parties. 13 Ohio Jurisprudence, 891, 894, Sections 79 and 83; 16 American Jurisprudence, 527, Section 160; 26 Corpus Juris Secundum, 479, Section 146.

A concise statement of the rule now being considered is found in 8 Ruling Case Law, 1102, Section 160:

“In construing a clause which imports into an instrument a restriction or imposes an obligation not to do something, reliance should be placed on the known or supposable aim of the grantor, or on the sense of his act, having reference as well to the apparent object to be attained as to the mode resorted to in order to effect it. So where there is no apparent motive for either a condition or a covenant, the language in question will be taken as merely descriptive. Similarly, when it appears that no such interest exists in the grantors as demands a reservation of a condition, or makes it in the slightest degree important, the necessity for a technical construction ceases; and likewise it may be a good reason for holding that a clause was a mere covenant and not a condition, that under the circumstances strict construction of the clause will be profitless alike to the grantor and to the public.”

The rule of strict construction quite generally obtains when a condition is inserted in a deed tending to destroy or lessen the estate granted, such as provisions for forfeiture and reversion; and where the language employed is not clear, doubts are resolved in favor of the grantee for the purpose of avoiding a forfeiture. 13 Ohio Jurisprudence, 963, 965, Sections 149 and 152.

It is our opinion that the Glann deed to the trustees conveyed a fee simple title, subject to the provisions above referred to, and that the deed from the trustees to the association also conveyed a fee simple title, with convenants of general warranty. None of the provisions in the original deed to the trustees was incorporated in the deed to the association and no reference was made to them. Many years later, December 27, 1934, the association conveyed the land to the plaintiff by deed in fee simple with covenants of general warranty, and this deed, like the deed that preceded it, contained no conditions or covenants limiting the use of the property.

Before entering into the consideration of the special provisions incorporated in the original Glann deed, we call attention to the several technical terms used by the authorities in referring to conditional fee simple estate, such as “a limitation,” “conditional limitation,” “a qualified,” “base” and “determinable fee,” “condition subsequent,” and some others. Likewise, the right, title and interest remaining in the grantor is denominated as “possibility of reverter,” “right of reversion,” “possibility of forfeiture,” “right to declare a forfeiture,” “right of entry,” etc. A conditional limitation, qualified, base or determinable fee appears to have one characteristic in common, and that is, the estate is created to endure “so long as,” “during,” “while,” etc., a given state of circumstances exist and subject to be defeated when a change in such circumstances occurs, and thus is unlike an estate on condition subsequent, which does not terminate automatically but gives the reversioner a right of entry. 16 Ohio Jurisprudence, 463, Section 85.

Some authorities hold that the same words may be employed to create either a covenant Or a condition, but the legal responsibility for nonfulfillment is not the same. Where there is a breach of covenant, the remedy is by way of damages; but where there is a breach of a condition, a forfeiture usually results. 13 Ohio Jurisprudence, 956, Section 142; 8 Ruling Case Law, 1100, Section 158.

In an annotation in 7 A. L. R., 1429, the distinction between a condition and a covenant in a grant of land for church purposes is stated as follows:

“The rule that the question whether a provision in a deed constitutes a covenant or a condition depends on the intention of the parties, as gathered from the entire instrument, and that in case of doubt a covenant is favored rather than a condition * *

We have here the problem of construing the stipulations in the Glann deed within the limits of established rules in order to determine whether a court of equity should grant the prayer of plaintiff’s petition notwithstanding plaintiff proposes to discontinue the use of its present church site for church purposes.

We call attention specifically to the provisions of the Glann deed and the duties imposed on the trustees in accepting the deed for the purposes of erecting thereon a “ Church or house of religious worship, ’ ’ costing not less than $1,200; to keep and maintain the same as a place of religious worship; to surround said premises with a good and substantial fence and maintain the same in good repair; to convey the said real estate to said association, and “within two years herefrom” to pay all taxes; and then the conveyance shall remain in full force, otherwise the same shall be void and said real estate shall revert to the grantors.

As already pointed out, defendants contend that the provision “keep and maintain the same as a place of religious worship” is a condition creating a determinable fee. . With this contention we are not in accord. This conveyance is not limited by a “condition” in express terms, or that the estate should endure “so long as” or “while” the several provisions are observed. Further, the reverter clause runs to the grantors only, with no words of inheritance or succession. It is inferrable from the provisions in the deed and surrounding circumstances that in fixing a time limit of two years for the performance of these stipulations, the grantors were personally interested in having the improvements made promptly and the church established as a condition for the conveyance; that the parties did not intend to make a provision for a forfeiture beyond the two-year period or at any time thereafter; and that the provisions and stipulations were inserted in the deed to accomplish within a definite and limited time the objective of the parties.

Plaintiff cites the case of First New Jerusalem Church v. Singer, 68 Ohio App., 119, 34 N. E. (2d), 1007, and it appears that the factual situation is quite similar to the instant case. That case involved an action to quiet title to certain church property deeded to the trustees of the church December 10, 1849, “and their successors in office forever, to be held in trust by them for the purposes herein mentioned.” The deed contained a condition that the property should be used for new church purposes “Provided that should it ever cease to be used for said purposes, that then the land is to return to its original owners, and the house thereon to return to the proprietors thereof.” Plaintiff claimed that the above provision was a cloud on the title. The court pointed out that under the terms of the condition, the land should return to the original owners in event it ceases to be used for religious purposes, and not to their heirs and assigns; and that the “conditions” were in the nature of a covenant and not a limitation of the grant nor a reverter incorporating words of perpetuity. It was held that the deed to the trustees conveyed an absolute fee simple title, and plaintiff’s title was quieted.

It is not practicable to differentiate the cases or try to reconcile the apparent confusion which exists in construing conditions, limitations and covenants in deeds of conveyance which purport to provide for a forfeiture or for the right of re-entry. We have called attention to some general principles applicable to the case under consideration. The intention of the parties is the guiding principle. Since the intention must be gathered from the language employed in each individual case, when considered in the light of surrounding facts and circumstances, it follows that “blue bottle” cases are rarely discovered.

The record discloses that it is not the intent of plaintiff to disband or discontinue its religious purposes upon the sale of its present property, and that it has already acquired a more suitable site for its purposes in the same community and a short distance from its present location, where it intends to erect a new church building and to expend the proceeds from the sale of its present site for that purpose.

Upon the record before us, we conclude that plaintiff has an absolute fee simple title to said land and that the stipulations and provisions in the Grlann deed, a predecessor in the chain of title, are a cloud on the title of plaintiff, and that plaintiff is entitled to a judgment in its favor and against the defendants, quieting its title to the premises in question, at defendants’ costs.

Judgment accordingly.

Fess and Savobd, JJ., concur.


author: Per Curiam.

text:
    The Union Central Life Ins. Co., Appellee, v. Pattison et al., Appellant.
    (No. 7595
    Decided July 7, 1952.)

      Messrs. Dinsmore, Shohl, Sawyer é Dinsmore, for appellee.

      Mr. Sol Goodman, Mr. Boy L. Struble and Mr. Harold C. Knecht, for appellants.
   Per Curiam.

The plaintiff, having alleged the performance of all the procedural proceedings essential to convert a stock insurance corporation into a mutual insurance corporation, that it had notified the defendant stockholders thereof and requested them to deliver their shares and the certificates therefor upon payment of $25 per share, as provided in such plan of mutualization, and their refusal, and that they had waived tender of such amount, prays that the defendants be decreed to surrender said certificates for cancellation upon payment of $25 per share, and upon failure to so surrender said certificates, and the payment into court of $25 per share, that the court decree the cancellation of the stock and that such decree operate in lieu of the surrender of such certificates. As is apparent, the petition invokes the exercise of the jurisdiction conferred by Section 9364-2a, General Code, upon the Court of Common Pleas to grant the relief prayed for upon proof of the completion of the mutualization process.

Identical petitions were filed against many stockholders. These actions were consolidated in accordanee with a stipulation that the rights of all the defendants were identical.

The defendants answered, admitting that all the defendants as owners of 33,570 shares, excepting the owners of 46 shares, had voted, through the instrumentality of a voting trust, as stockholders in favor of the mutualization, and that the owners of the 46 shares had been concluded by the vote of the majority in favor of such plan.

As we construe the answer and cross-petition, they deny that what was done was effective to accomplish mutualization for the following reasons:

(1) The long delay from July 29, 1941, when the directors adopted the plan, and it was approved by the stockholders on August 7, 1941, to J une 27, 1947, when it was approved by the superintendent of insurance.

(2) Representations by the board of directors that the price of $25 per share was fair and reasonable.

(3) The alleged great enhancement in value of the stock since the vote of the stockholders approving the plan and the price.

(4) Their inability to sell their stock at its alleged enhanced value during such period because of the pendency of the mutualization proceedings.

(5) Inadequacy of the dividends declared during such period.

(6) Failure to notify them of the meeting of the policy holders.

(7) Expiration of the voting trust in which they had joined before the meeting of the policy holders, at which they approved the plan.

(8) Change in personnel of policy holders during the interval.

There are other allegations of conclusions which the pleader draws from the foregoing allegations, but these add nothing to the defensive allegations.

In the prayer of the cross-petition, the defendants seek to condition the relief sought by the plaintiff upon paying to them the sum of $125 per share or such amount as might be determined by the court or by appraisers appointed by the court, or the division and distribution of the accumulation of profits alleged to have taken place during the delay.

We think it would tend to narrow the inquiry to say here that as we view it, none of the affirmative relief for which the defendants pray as a condition to relief to the plaintiff could, under any circumstances, be granted.

If the mutualization has been accomplished, the plaintiff is entitled to the relief sought. If it has not been accomplished, the plaintiff remains a stock insurance corporation, in which the defendants are stockholders with all the rights of stockholders.

By reply, the plaintiff denied any fault on its part resulting in delay; admitted that no dividends had been paid since April 1,1948; admitted that the voting-trust expired on January 2,1947, and was not renewed by defendants; and affirmatively alleged that prior to completion of mutualization the defendants did not undertake to withdraw their votes, or consent or in any manner indicate that they no longer acquiesced therein. The plaintiff also admitted giving the notice of completion of the mutualization by the approval of the superintendent of insurance and the demand for the surrender of the stock.

Later, by supplemental petition, the plaintiff alleged that an action was instituted by defendant — Ernestine Pattison — on behalf of herself and other stockholders too numerous to mention, but affected in the same way, against this plaintiff, seeking a declaratory judgment as to her rights as a stockholder, in view of said proceedings for mutualization, and an injunction, in which she set forth the facts as alleged by the plaintiff in this action, in which action by Ernestine Pattison, the court, on demurrer to the petition, declared that all proceedings to effect the mutualization of the corporation had been duly and regularly performed, “that there existed,” as a result, “a valid and binding contract between the defendant company, its shareholders and policyholders, which, in view of the absence of any fraud, is not open to attack,” that this judgment was affirmed by the Court of Appeals, and is conclusive upon all the parties.

By answer to this supplemental petition, the defendants admitted the facts excepting the terms and effect of what the court had declared. The defendants’ interpretation would have left open their right to have the value of their stock determined in an action, such as this, to require a surrender of the stock and certificates. As we have already stated, we are of the opinion that such relief cannot be granted in this case. And we do not construe the decision in the Ernestine Pattison case as so declaring.

On these pleadings, the case came on for trial in the Court of Common Pleas, and after a trial the court rendered judgment for the plaintiff in accordance with its prayer, dismissed the defendants’ cross-petition, and overruled their motion for a new trial. It is from that judgment that this appeal on questions of law and fact was taken.

The case is now under submission after a trial at which the evidence introduced in the Common Pleas Court trial was introduced by agreement of counsel, and additional evidence in the form of a deposition was introduced, like-wise by agreement.

However, we find very little, if any, dispute as to the essential facts. They are indisputable.

The board of directors adopted this plan of mutualization on July 25, 1941, in accordance with. Beetions 9364-1 to 9364-8, General Code. A meeting of the stockholders was called, to be held on August 7, 1941. At that meeting all the defendants, excepting the holders of a few shares, voted in favor of the plan. None of the defendants voted against it, and all became bound by the action of the stockholders at that meeting. 'No stockholder availed himself of a dissenter’s right to have the value of his stock fixed, as provided for in Section 9364-2a, General Code.

A meeting of the policy holders to consider the plan was called for October 24, 1941. At that, meeting it was disclosed that a policyholder by the name oí Bebden had filed an action to enjoin the mutualization. This action did not reach final judgment until November 13, 1944, when the Supreme Court of-the United States dismissed Belden’s appeal, thereby in effect affirming the Supreme Court of Ohio in favor of the defendant and sustaining the validity of the mutualization statutes.

In the meantime, two other policyholders had sued to enjoin the mutualization. This litigation was not finally concluded until June 1947.

Because of the pendency of this litigation, the meeting of the policyholders was adjourned from time to time. At the meeting on October 24, 1941, the meeting was adjourned to April 30, 1942, and finally, at another adjourned meeting, the meeting was adjourned to reassembly at the call of the superintendent of insurance. On the termination of the litigation challenging the right to mutualization, the superintendent of insurance sent notice to each of the policyholders who had attended the meeting of October 24, 1941, that the meeting would reconvene on June 26, 1947. At that meeting the policyholders voted in favor of mutualization on the plan submitted by the directors and stockholders.

It is urged that notice should have been sent to all the holders of policies on the date of the notice. But this meeting was not of those policyholders. It was a continuance of the meeting of October 24, 1941. Those who had attended that meeting were the only ones eligible to attend the later session and resume consideration of the unfinished business of that meeting. When the policyholders convened and organized on October 24, 1941, and it was determined that a majority of the policyholders were present in person or by proxy, that body became the representative of the entire body of policyholders and authorized to accept or reject the proposal made by the stockholder. We hold that the notice was sufficient; that the meeting was duly held, and its action binding upon all the policyholders; and that upon the approval of such proceedings by the superintendent of insurance, the plaintiff became and is now a mutual insurance company.

Counsel insists that to require the defendants to submit to a valuation of their stock fixed in 1941, is inequitable, unjust, and confiscatory. In answer to this, we say that we are not convinced that the evidence shows that their stock, unfettered by the pendency of this mutualization plan, would be worth substantially more than $25 per share at the present time, but, aside from that, it does not seem that the defendants are in a position to challenge the consummation of this plan. They, as stockholders, initiated the plan. They made the offer to the policyholders in 1941. This offer remained pending during the intervening years. They had it in their power to withdraw this offer. Section 9364-2a, General Code. Undoubtedly, many annual meetings of stockholders took place during the pend-ency of this offer. Without doubt, special meetings of stockholders could have been called. At these meetings, the defendants could have secured a withdrawal of the plan, provided only that they secure the cooperation of the requisite number of their fellow stockholders, which would not have seemed too difficult, if the company assets available to stockholders had increased to the extent claimed. But the defendants took no action whatever to secure a withdrawal of the plan. After their offer had been accepted by the policyholders and approved by the superintendent of insurance, it was too late for withdrawal.

We are also of the opinion that the defendants are bound by the judgment declaring rights of stockholders in the Ernestine Pattison case. It is true that the court declared in that case that if the stockholders did not consent to comply with the demand that they surrender their stock for $25 per share, they could hold their stock until such time as the provisions of Section 9364-2a, General Code, had been complied with. That of course, is true, but when it appears that all the mutualization requirements have been met, that section has been complied with, and nothing remains to be done but the surrender and cancellation of the stock.

For these reasons, this court finds in favor of the plaintiff and awards to it the relief prayed for in its petition, and dismisses the cross-petition of the defendants.

Judgment accordingly.

Hildebrant, P. J., Matthews and Metoale, JJ., concur.

Metcalf, J., of the Fourth Appellate District, sitting by designation in the First Appellate District.


author: Savord, J.

text:
    Roscoe, Appellant, v. Kolb, Exr., et al., Appellees.
    (No. 4611
    Decided February 11, 1952.)

      Mr. Frank J. McManus, for appellant.

      Messrs. Rupp & Hahn, for appellees.
   Savord, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court. The parties stand in the same position as in the trial court and for convenience shall be here so designated. Defendant Matt Kolb, executor, by motion seeks an order dismissing this appeal on the ground that the notice of appeal was not filed within the time required by law. It follows that this is the first question demanding consideration.

Review of the original pleadings and the transcript of entries discloses that on September 3, 1949, the plaintiff filed her petition, seeking to set aside the will of her mother, Edna Lucille Sayen, who had died on August 12, 1949, which will, dated August 30, 1947, had been admitted to probate on September 2, 1949.

On August 8, 1951, defendant Matt Kolb, who prior thereto had been appointed executor, moved the court for an order dismissing the action of plaintiff “for the reason that it was not commenced as to all necessary parties within the time required by law for the commencement of such actions.” The plaintiff, on August 23, 1951, by unverified motion, asked for leave to make Matthew Roscoe, a minor, a party defendant, representing that Roscoe was the son of plaintiff and a contingent devisee and legatee under the will of Edna Lucille Sayen.

As of September 10, 1951, the trial court sustained the motion of defendant executor and ordered the petition of the plaintiff dismissed with prejudice “for the reason that the necessary parties defendant to such action were not joined within the time required by law for the commencement of such action.”

By written motion filed on September 13, 1951, the plaintiff moved the court for an order vacating and setting aside the order of September 10, 1951, upon the grounds that the court erred in granting the motion to dismiss and should have overruled such motion. By separate entries of October 15, 1951, the court overruled plaintiff’s motion for leave to make Matthew Roscoe a defendant and the motion to vacate and set aside the former order dismissing the petition. Thereafter, on October 23, 1951, plaintiff filed her notice of appeal on questions of law from the order of October 15, 1951.

From the foregoing it becomes immediately apparent that while the notice of appeal was filed within 20 days of the date upon which the court overruled the motion of plaintiff seeking to vacate the former order of the court dismissing plaintiff’s petition, it was filed 43 days subsequent to the date of the order sustaining the motion whereby defendant sought the dismissal of such petition.

It is to this latter order that defendant contends the notice of appeal should have been directed. This contention finds its foundation in the claim of defendant that the order dismissing plaintiff’s motion to vacate the order dismissing the petition was not an appealable final order, and that the mere filing of a motion to vacate and set aside an order which in effect determines solely a question of law, no issue of fact being involved, is insufficient to avoid the mandatory provision of Section 12223-7, General Code, fixing the time within which an appeal must be perfected as within 20 days from the date upon which the journal entry of the final order, judgment or decree has been approved and filed.

If in consideration and determination of the question thus presented, application of the provisions of Section 11575, General Code, prior to its amendment effective October 11, 1945, were to be had, this court could find itself in ready agreement with the position asserted by defendant. We can not, however, ignore the radical change accomplished by such amendment. The significant effect of the amendment is illustrated by a mere reading of the section first in its original form and then as amended.

Prior to the amendment, Section 11575, General Code, provided:

‘ ‘ A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by a jury, a report of a referee or master, or a decision by the court.”

As amended, the section provides:

“A new trial is a re-examination, in the same court, of the issues, after a final order, judgment or decree by the court.”

The emphasis in each instance is ours.

It is to be noted also that prior to its amendment effective October 11, 1945, Section 12223-7, General Code, read in part:

“Provided, that, when a motion for a new trial is duly filed by either party within three days after the verdict or decision then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial.” (Emphasis added.)

The comparable portion of the same section, as amended, provides:

“Provided, that, when a motion for a new trial is filed by either party within ten days after a journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial. ’ ’

It is to be observed that in its amended form this section omits the use of the word, “duly, ” as that word appeared in the section prior to the amendment. Prior to the amendment, in an instance when there had been no trial as to an issue of fact, and the controversy had been resolved solely on a question of law, a motion for new trial was considered as not having been duly filed.

Section 11575, General Code, in its amended form, compels a different conclusion. According to the revised definition of “new trial” as embodied in such amended section, the only construction of which it permits, it follows that the law is correctly stated in the first paragraph of the syllabus in Ohio Motors, Inc., v. Charlesworth, Exrx., 88 Ohio App., 299, 97 N. E. (2d), 686:

“Prior to the amendment of Section 11575, General Code, on October 11, 1945, a new trial was confined to a re-examination of an issue of fact, but the section as amended contemplates a re-examination of issues of law as well as of fact. ’ ’

The concept thus established by legislative enactment is not without merit. To allow the trial court to re-examine a judgment based solely upon a question of law is equally as logical as affording it an opportunity to re-examine in an instance wherein the issue is solely one of fact. Further study and reflection disclosing error, the means of curing same is made available. Such opportunity with respect to an issue of law is surely of equal importance as in respect to an issue of fact.

The filing of a motion for new trial in the instant case was therefore proper. Though the motion filed by plaintiff was captioned, “Motion to vacate and set aside entry dismissing petition of plaintiff,” if we are to look to substance rather than form, we are compelled to ascribe to it the character of a motion for new trial. In it the movant “moves the court for an order vacating and setting aside the order heretofore made.” The opening words of Section 11576, General Code, reading “A final order, judgment or decree, shall be vacated, and a new trial granted by the trial court” suggest that preliminary to the granting of a new trial, the vacation of the prior final order, judgment or decree is to be had.

The case at bar is easily distinguishable from Kromer v. Kear, 86 Ohio App., 309, 90 N. E. (2d), 422; McKee v. Clark, 55 Ohio Law Abs., 496, 90 N. E. (2d), 584; and Billman v. Sosbe (unreported), a decision by the Court of Appeals of the Sixth Appellate District. In each of these cases, the claim was advanced that the time requirement with respect to the filing of a notice of appeal was satisfied when such time was computed from the date of overruling of a motion for new trial. The motions, however, were filed in the Common Pleas Court, which under the situation existing in each of the cases was actually sitting in the role of an appellate or reviewing court. The Kromer case arose in the Municipal Court of Columbus; the McKee and Billman cases each arose in the court of a justice of the peace. There being no provision of law permitting the filing of such motion in a reviewing court, and such court being without power to consider the same, the filing was a mere nullity, could not suspend the running of the time in which notice of appeal was required to be filed, and the appeals in those three cases were properly dismissed.

In the instant case, the filing of plaintiff’s motion to vacate had the effect of extending the time to appeal for. a period of 20 days after the overruling of such motion. The motion having been overruled on October 15, 1951, and the notice of appeal having been filed on October 23, 1951, it is cleár that the notice of appeal was filed within the statutory time, and that the motion of the defendant to dismiss this appeal must be overruled.

It is fundamental that in considering a cause on its merits, a reviewing court is confined to and bound by the record before it. In the instant case, the rule operates to create a situation rendering it impossible for the court to determine the correctness or incorrectness of plaintiff’s assignment of claimed errors. Save for the allegations of an unverified motion, the representations made in the several briefs and the statements of counsel, none of which can be accepted in lieu of evidence, there is no evidence in the record before us tending to show the exact relationship of Matthew Eoscoe to any of or all the parties to this cause or to the will of Edna Lucille Sayen, or whether Matthew Eoscoe is or was united in interest with any of the parties, to enable us to finally determine whether Matthew Roscoe was a necessary party to this cause by reason of the requirements of Section 12080, General Code.

The insufficiency of the record placing this court in such unfortunate situation, the court is required to accord recognition to the principle that: “A judg-

ment which a court has jurisdiction to render presumes a finding by the court of all things necessary and sufficient to support such judgment, in the absence of a record to the contrary.” See Bly v. Smith, Sheriff, 94 Ohio St., 110, 113 N. E., 659.

Upon the record before this court, only one finding is possible. The judgment of the trial court must be and is affirmed.

Judgment affirmed.

Fess and Conn, JJ., concur.


author: Doyle, J.

text:
    Belden et al., Admrs., v. Armstrong et al.; Butler et al., Appellants; Hitchcock, Appellee. Belden et al., Admrs., v. Armstrong et al.; Butler et al., Appellants; Hitchcock, Appellee. Belden et al., Admrs., v. Armstrong et al.; Cates et al., Appellants; Hitchcock et al., Appellees.

      (Nos. 4168, 4173 and 4176
    Decided May 16, 1951.)

      Mr. Merryl F. Sicker man, for appellants in case No. 4168.

      Mr. James W. Harrak, for appellants in case No. 4173.

      Mr. James K. Lynck, for appellants in case No. 4176. Mr. Mervyn T. Grosjean, for appellee in cases Nos. 4168 and 4173, and appellee Jane Elizabeth Horton Hitchcock in case No. 4176.
   Doyle, J.

F. Louise Butler died in Akron, Ohio, on the 27th day of January, 1949, in her 83rd year. Due to circumstances not in issue here, her estate passed under the laws of descent and distribution; was properly divided into paternal and maternal halves; and determination was made of those who are entitled to inherit the paternal half as descendants of the decedent’s paternal grandparents, together with their respective proportions, as well as of those who came within the class entitled to inherit the maternal portion from the decedent’s maternal grandparents. .

The sole question presented to this court in these appeals on questions of law from the Probate Court of Summit County is the conformance of the trial court’s ruling to principles of law in finding that one Jane Elizabeth Horton Hitchcock is a lineal descendant of the decedent’s paternal grandparents, and, in so concluding, finding, as a necessary premise thereof, that Ann Harding (Stanley), the grandmother of the said Jane Elizabeth Horton Hitchcock, was legally adopted by Lucy Ann Butler (Harding) and her husband, Isaac Harding, the former being an aunt of the decedent on her paternal side.

The “necessary premise” noted in the paragraph above stems from the rule that a person who claims inheritance through an ancestor, who was allegedly adopted in the state of New York, must establish that the adoption of the ancestor was valid in law in the foreign state. If the adoption in the foreign state was invalid, the Ohio courts will recognize no rights of inheritance through the alleged adoptive parents. Barrett, Admr., v. Delmore, 143 Ohio St., 203, 54 N. E. (2d), 789, 153 A. L. R., 192; Blaustein v. Blaustein, 77 Ohio App., 281, 66 N. E. (2d), 156.

Prior to the year 1873, there were no general statutes in the state of New York, in the matter of adopting minor children. There were, however, special statutory enactments contained in the charters granted certain charitable societies that received and cared for destitute children, which permitted the societies’ officers to execute agreements of adoption, on behalf of the societies, with suitable persons willing to assume the obligations of parents. In re Estate of Thorne, 155 N. Y., 140, 49 N. E., 661.

Proceeding now to the disputed adoption of the ancestor, Ann Harding (Stanley). It appears that she was born on April 12, 1854, and died on March 21, 1922. From this record of dates, she was 19 years of age at the time of the enactment of the general adoption statute in New York state. There is no record extant or at least none found to exist showing her adoption under this general statutory law. It thus follows that, if legally adopted at all, such status must have been created through the medium of a contract with “certain charitable societies,” acting under statutory authority. This for the reason that adoption was unknown to the common law, and exists in this country only by virtue of statute. In re Estate of Thorne, supra, at page 143.

There is in evidence a census report of 1875 for Broome county, .New York, listing Annie L. Harding as a daughter of, and living in the home of, Lucy Ann Butler Harding and Isaac Harding; there is also presented a page from a family Bible, shown to have passed through the generations from the son and the daughter-in-law of the claimed adoptive parents, to the present owner, a descendant in direct line.

This memorial in the heirloom, lists, in a handwriting obviously transcribed many years ago, the names of the members of the family of Isaac and Lucy Ann Harding. Written therein is the following: “Anna L., adopted daughter of Isaac Harding and Lucy A. Harding, New York, born April 12, 1854.” From other evidence in the record the fact may be reasonably found that the claimed adopted daughter lived with the alleged adoptive parents for a period of years. took the family name, and was generally known as their adopted daughter.

Governed as we are by the legal principle that the burden of proof is upon the claimant to establish the adoption of her ancestor, can we say that the evidence heretofore shown is sufficient? The case law in New York state, which treats of adoption as of the time here under consideration, all points to the requirement of the proof of a contract entered into pursuant to statutory authority. Where do we find here such proof? Certainly, there is no evidence of an agreement with any one relating to an adoption. Can we, as a court, rule that the mere acceptance of a child into a household, and the holding of her out to the public as an adopted daughter, is proof that specific statutes authorizing adoption were met?

We think it apparent that the Legislature of New York did not contemplate the creation of the status of adoption by any other method than that specifically set forth in the statutes. And, there being no rule of common law adoption, we fail to find any evidence of even an attempted compliance with the law.

Finding, as we do, no proof that the ancestor, Anna L. Harding, was legally adopted, it follows, as a legal consequence, that the. claimant, Jane Elizabeth Horton Hitchcock, cannot inherit property through her as a legal heir of the decedent, F. Louise Butler.

Judgment reversed in each, case and final judgments entered.

Hunsiokbr, P. J., and Stevens, J., concur.


text:
    Thornburg et al., Appellees, v. Burden et al., Appellants.
    (No. 509
    Decided February 25, 1952.)

      Mr. Ralph V. Greene, for appellees.

      Mr. Wayne E. Davis, for appellants.
   Per Curiam.

In this opinion Wilbur L. Thornburg and Myra J. Thornburg, husband and wife, plaintiffs in the Court of Common Pleas and appellees here, and Robert Burden and June Burden, husband and wife, defendants there and appellants here, will be referred to as plaintiffs and defendants respectively.

On July 28,1947, defendants purchased a lot situated in Mentor Park Acres Allotment, Mentor township, Lake county, Ohio, from Raymond and Julia Pratt, husband and wife. On October 27,1947, plaintiffs also purchased a lot in that allotment, which is contiguous to defendants’ lot, from the same parties.

Each of such lots was described as being one hundred feet in width. Subsequent to such purchases deeds evidencing them were duly recorded in the deed records of Lake county, Ohio.

Prior to plaintiffs’ purchase of their lot and at the time they instituted their action in the Court of Common Pleas, to which reference is made, defendants occupied and used a driveway, garage, septic tank, sewers, drains, trees, shrubbery, plantings, etc., situated on their lot and on the northerly twenty feet of plaintiffs ’ lot, which twenty-foot strip of land defendants claim they own by reason of the representation of their grantor as to the boundaries of the land conveyed to them.

Defendants refused plaintiffs ’ demand to vacate the disputed twenty-foot strip of land. Thereupon plaintiffs sued defendants in the Court of Common Pleas to eject them therefrom.

Defendants answered, denying generally the allegations of plaintiffs’ petition; and by amended cross-petition, claimed title to the disputed twenty-foot strip of land by adverse possession and as occupying claimants and sought to quiet their title thereto, alleging that plaintiffs were estopped to commence the action in ejectment.

In their reply, plaintiffs denied that title was in defendants, and generally denied each and every other fact stated, averrment made and allegation set forth in such pleading.

Upon trial, the court overruled defendants’ demurrers to plaintiffs’ petition and opening statement of plaintiffs’ counsel, sustained plaintiffs’ motion for judgment on the pleadings and opening statement of counsel and entered judgment accordingly for plaintiffs, ejecting defendants from the lands described in plaintiffs’ petition.

Defendants appealed from that judgment on questions of law and fact. It was agreed that the appeal was not properly perfected as one on questions of law and fact. The words, “and fact,” were stricken from the notice of appeal, and, it appearing that a bill of exceptions was duly filed, the appeal was retained as one on questions of law.

By assignments of error defendants contend that “the Court of Common Pleas erred in sustaining the motion of plaintiffs-appellees for judgment on the pleadings and opening statements of counsel for the parties”; that the “order and judgment of the Court of Common Pleas are not sustained by the admitted evidence and are contrary to the weight thereof”; and that “the order and judgment of the Court of Common Pleas are contrary to law.”

Without referring further to the allegations of the pleadings of the respective parties or the opening statements of their counsel, we are of the opinion that plaintiffs are not estopped by any act of omission or commission from suing defendants to eject them from such parcel of real estate.

It appears to this court that the defendants are basing their right to title to the disputed twenty-foot strip of land on claimed misrepresentations of their grantor. Such misrepresentations allegedly were not made by plaintiffs, or any one on their behalf, and in the opinion of this court defendants have no basis for a claim of title against the rights of plaintiffs under the conveyance subsequently made to plaintiffs by their common grantor. There is no dispute that such t wenty-f oot strip of land is embraced in the boundaries of the land conveyed by the common grantor, to plain-: tiffs.

Without determining whether the rule of caveat emptor., argued for by plaintiffs, is applicable to the facts in the case we review, it is clear to this court that as between plaintiffs and defendants it was the duty of defendants to know that the description contained in their deed did or did not embrace the disputed land.

Defendants failed to sustain their right as occupying claimants under Section 11908, General Code. They do not claim to have made any improvement on such twenty-foot strip.

The allegations of defendants’ pleadings do not ■•■how that they hold a plain and connected title to the disputed land, or that they hold title thereto under any of the provisions of that section of the General Code. On the contrary, as shown by the pleadings and bill of exceptions, the chain of title to the real property which they claim by adverse possession shows an adverse claim thereto only since 1947.

It is elemental that defendants’ grantors did not hold title to this real estate adverse to themselves, and, therefore, any period of time during which such disputed lands were owned by defendants’ grantors could not be added or tacked to the period of time lapsed since defendants took possession under their conveyance.

Clearly, the plaintiffs are entitled to the remedy of ejectment sought in the petition and defendants are not entitled to the relief sought in their amended crossnetition.

We have considered all defendants’ assigned grounds of error and find no error prejudicial to defendants.

The judgment of the Court of Common Pleas must be, and hereby is affirmed.

Judgment affirmed.

Nichols, P. J., Griffith and Phillips, JJ., concur.