text:
    LAPSING OF A DEVISE TO AN ILLEGITIMATE CHILD.
    Court of Appeals for Knox County.
    Bertha Owens et al v. Etta Humbert, as Executrix of the Last Will and Testament of David K. Blyston, Deceased.
    Decided, May 20, 1916.

      Wills — Intention of Testator Not Controlling — As to a Devise to an Illegitimate Child — Whose Death, Leaving Children, Preceded that of the Testator — Construction of the Words “Child or Other Relative” as Used in Section 10581, General Code.

    A devise to an illegitimate child, whose decease occurs prior to that of the testator, lapses on the'death of the testator, and does not pass to the children of said illegitimate child, notwithstanding the will indicates an intention on the part of the testator that it should pass to the children of the child of his bounty.

      L. C. Stillwell, for plaintiffs in error.

      Moore & Sperry and Columbus Ewalt, contra.
   Houck, J.

This is a proceeding in error prosecuted from the Common Pleas Court of Knox County, Ohio, seeking to reverse the judgment of that court in its finding that a certain legacy of five hundred dollars which had been given to Elizabeth Owens, the mother of the plaintiffs in error, under Item 7 of the last will and. testament of David K. Blyston, deceased, had lapsed. Item 7 of said will reads as follows:

“Upon the death of my said wife I desire and direct my executrix to-pay over and deliver to Ester Humbert, daughter of Etta Humbert, the sum of five hundred dollars; to D. K. Bly Mavis, one thousand dollars; to W. II. Blyston, my nephew, five hundred dollars; to Flora Heater, my niece, five hundred dollars; to Elizabeth Owens, five hundred dollars.”

This cause was submitted to the court below on an agreed statement of facts, which the court found in its judgment and decree to be true, the agreed statement of facts being as follows:

“First. It is agreed that on the 10th day of March, 1914, David K. Blyston died, leaving a will whereby he appointed the plaintiff (Etta Humbert, executrix) as the sole executrix, and which will was admitted to probate in the Probate Court of Knox County, Ohio, as alleged in the plaintiffs’ petition.

“Second. It is agreed that a true and correct copy of the last will and testament of David K. Blyston is attached to the plaintiffs’ petition.

“Third. It is agreed that Elizabeth Owens, named in said will, was the illegitimate daughter of the said David K. Blyston.

“Fourth. That the said Elizabeth Owens died on or about the 8th day of January, 1913, before the death of the said David K. Blyston.

“Fifth. That the said Elizabeth Owens left surviving her and the said David K. Blyston her children: Bertha Owens, Stella Bell, and Harry Owens.

“Sixth. That the said Elizabeth Owens was married under the name of Blyston, and that her said father, David K. Blyston, was present at her wedding and gave her away in marriage.

“Seventh. That the said David K. Blyston frequently wrote letters to tiie said Elizabeth Owens and always addressed her in said letters as ‘Dear Daughter.’ That the said Elizabeth Owens always addressed him in her letters as ‘Dear Father.’

“Eighth. That the said David K. Blyston frequently visited the. said Elizabeth Owens and her family.

“Ninth. That at the time of her last sickness he went to visit her at the hospital in Mt. Yernon, and there arranged for her care and comfort.

“Tenth. That the said David K. Blyston was present at and attended the funeral of the said Elizabeth Owens, and manifested great sorrow and grief at her death.”

It is contended by defendant in error that by reason of the fact that Elizabeth Owens was the illegitimate child of testator, and that she departed this life before the testator, although she left issue surviving her, that said five hundred dollar legacy given to her .in said will thereby lapsed, and is not saved by any provision of Section 10581 of the General Code of Ohio, which is as follows:

“When a devise of real or personal estate is made to a child or other relative of the testator, if such child or other relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised as the devisee would have done, if he had survived the testator. If such devisee leaves no such issue, and the devise be of a residuary estate to him or her, and other child or relative of the testator, the estate devised shall pass to and vest in such residuary devisee surviving the testator, unless a different disposition be made or required by the will.”

' It being admitted that Elizabeth Owens was the illegitimate child of testator, and that she left children surviving her and the testator, was the said Elizabeth Owens such child or other relative as is contemplated by the provisions of said statute, and by reason thereof does the legacy in question go to and vest in her children? This brings us to the real problem to be solved in this ease, namely: What is the legal meaning of and the proper construction to be placed upon the words “child or other relative,1 ’ as used in Section 10581 of our General Code ?

As a general rule words and phrases used in the statute are to be taken in their ordinary and popular sense, unless it plainly appears from the context or otherwise that they were used in a different sense. In other words, in the constructionlof statutes words and phrases used therein which have two significations should ordinarily receive that meaning.which is generally given to them in their common use. The words, phrases and sentences of the statute are to be read in their ordinary sense, unless so construing them will lead to what would seem to be an absurdity. If we apply this rule to the case at bar, what is the generally accepted meaning of the word child? When one speaks of his child he means a legitimate child: one born in lawful wedlock. Does Elizabeth Owens or her surviving children come within the saving clause of the statute under consideration? Certainly not. While the general policy of the law in providing for a disposition of property is to keep it within the blood of the ancestor, yet if the language of the statute, “child or other relative,” be given its natural construction, we think that the word “child,” in contemplation of law as used in the statute, means legitimate child, and that the term “other relative” applies only to persons of the same kind of relationship to the testator as is sustained by a child. That is to say, if the child in the instant case, being illegitimate, and not being entitled to inherit from David K. Blyston if he had died intestate, then it necessarily follows that the children of Elizabeth Owens, deceased, although they are of the same blood of the testator, yet they can not attain any greater rights in the property of David K. Blyston than the mother possessed. The mere fact that the legatee and her children who survive her are related by blood to the testator in no way enlarges the meaning of the term “other relative,” because the legal rights of the children-in this case to take the legacy in question are to be determined by the rights of the legatee. If upon the death of the legatee the legacy lapsed by operation of law, then the surviving children of the legatee can not properly claim the legacy. While it is true that the testator and legatee here are of the same blood, yet the legatee having been born out of lawful wedlock is what is known in law as a bastard, and since a bastard at common law was filius nullius, and therefore kin to nobody, and had no ancestor from whom any inheritable blood could be derived, it therefore follows that the only inheritable right a bastard has to take property is made so by statute; and we hold that the words, ‘ ‘ child or other relative, ’ ’ as used in the statute now under consideration, are within the well known and recognized rule of construction that prima facie the word child or children, when used in the statute, means legitimate child or children, and that bastards are not within the meaning of the terms, and that child or children, or any other terms of kindred when used in the sthfutb, m'e'ah legitimate children or kindred only.

The intention of the testator is said to be the pole-star to guide and control the court in the interpretation of wills. If we could apply that rule in this case and in addition thereto consider the facts as contained in the agreed statement of facts, we are free to say that from the language used in the will, the facts as contained in the agreed statement of facts, and all the surrounding circumstances, there is no doubt in our minds but that David K. Blyston meant and intended that this five hundred-dollar legacy should be paid to his child, Elizabeth Owens, if she survived him, and if not then to her children. By his conduct and acts, as disclosed in the agreed statement of facts, the testator considered her his child, and the object of his bounty, and felt under a moral obligation to. care for her and the objects of his and her love and affection. Yet, notwithstanding all this, the intention of the testator must in this instance be set aside and held for naught because it is in conflict with the positive provision of a statutory law, namely, Section 10581 of the General Code of Ohio. Therefore the responsibility of not carrying out the intention of the testator as to the. payment of the legacy in question does not rest with the court, but with the residuary legatee.

In view of what we have already said it therefore follows that the court can do but one thing, and that is affirm the judgment of the common pleas court, which we now do.

Judgment affirmed.

Shields, J., and Powell, J., concur.


source: Caselaw Access Project

author: Jones (E. H.), J.

license: Public Domain

text:
    LIABILITY OF CONSIGNOR. FOR. DEMURRAGE CHARGES ON REFUSAL OF CONSIGNEE TO ACCEPT SHIPMENT.
    Court of Appeals for Hamilton County.
    Moores Lime Co. v. Norfolk & Western Railway Co.
    Decided, February 28, 1916.

      Railways — Shipment in Carload Lots Refused by Consignee — Consignor Liable for Demurrage Charges.

    Where a shipment upon arrival is refused by the consignee and the shipper is notified by the carrier of such refusal and upon request declines to give the carrier any instructions as to disposition, the carrier then becomes a mere custodian or bailee of the goods to whom the shipper is liable for all charges thereafter accruing.

      Charles M. Leslie, for plaintiff in error.

      Hollister & Hollister, contra.
   Jones (E. H.), J.

Three carloads of crushed stone were shipped prepaid from the Moores Lime Company at Springfield, Ohio, via the C., C. C. & St. L. and N. & W. railroads to R. Wilhelmy at Bond Hill, Ohio, one ear on each of the following dates: September 28, September 29 and October 10, 1910.

There is a written stipulation as to facts in this case which recites:

“The consignee refused to accept and unload said cars. That after said refusal by said consignee to accept or unload said car, notice was given defendant, and defendant was requested to give disposition of same, which defendant refused to do for the assigned reason that it was not the owner of the contents of said cars and had no right to dispose of same.”

This action below was brought by the railway company to recover demurrage charges which accrued after these refusals by the consignee and consignor — the refusal to accept the stone by the former and the refusal to give disposition or exercise ownership by the latter. There is no question raised as .to any fact material to the determination of this case. The question presented is one of law, viz: Under these conditions is the consignor obliged to pay the demurrage charges accruing after the shipment is rejected by the consignee?

Certain principles discussed in argument as having a bearing upon this question are well recognized. For example, it must be conceded that the title to the crushed stone from the time it was loaded at Springfield until it arrived at Bond Iiill was in Wilhelmy, the consignee. It would be so considered in the determination of any question arising while the stone was in transitu.. But when the consignee refused to take the stone there was a changed situation. There was no contract between the carrier and Wilhelmy. The carrier had made a written contract with the lime company to carry and deliver the stone at a certain piace, to a person named in the written contract. When the person so named as consignee refused to receive the consignment it became the duty of the carrier to ask for directions or disposition from its employer, who was the only person in the transaction with whom it sustained a contractual relation or had any privity of contract.

The carrier could not be drawn into or be made to suffer by. a dispute, of whatever nature, between the vendor and vendee simply because the goods sold were on its cars and in its possession. It had performed its duty in safely delivering the cars and placing same in the yard at Bond Iiill.

When the shipment was refused at its destination a new and different relation arose between the shipper and the carrier. 'The latter became the custodian or bailee of the stone, with .'duties and responsibilities resting upon it similar to those of a .warehouseman. The position taken by the shipper, as indicated in the part of the statement of facts above quoted, is and was untenable. It should have promptly given disposition of cars, upon request from the carrier so to do. The railway company was then justified in looking to it as-the owner of the stone, and ' iinder the eighth condition of the bill of lading it was liable as '■“owner”'for all charges accruing thereafter.

Judgment affirmed.

Jones (Oliver B.), and Gorman J., concur.


author: Houck, J.

text:
    COVENANT OF WARRANTY MODIFIED BY PAROL EVIDENCE.
    Court of Appeals for Delaware County.
    William McKenzie et al. v. George C. Buchamann et al.
    Decided, May Term, 1916.

      Title — Covenant of Warranty Against Encumbrances — Circumstances Under which It May be Modified by Parol Evidence — Stich Modification Not Inconsistent with the Covenant.

    1. In an action for damages for breach of covenant against encumbrances, parol evidence is admissible which in any way tends to prove that after execution of the deed containing said covenant, and before its delivery to the grantees, it was agreed between them and the grantor that the grantees should assume a certain unexpired lease constituting a lien on the premises sought to be conveyed, and that but for such agreement the grantor stated he would declare the deal off and destroy the deed.
    2. A promise to assume a lien, which is an encumbrance upon the property conveyed, is not in conflict with or inconsistent with the covenant of warranty against encumbrances contained in the deed, but is in effect a discharge of the grantor from liability on the covenant of warranty so far as said lien is concerned.

      Marriott, Freshtvater & Wickham, for plaintiffs in error.

      George G. Snyder, contra.
   Houck, J.

This is a proceeding in error seeking to reverse tbe judgment of the Common Pleas Court of Delaware County, Ohio. A jury having been waived the case was submitted to the trial judge on the pleadings and evidence. The facts in the case here submitted are contained in the journal entry of the judgment and finding of facts and conclusions of law by the trial judge in the court below, and are before this court for review.

The parties here stand in reverse order from where they stood in the court below. The suit in the common pleas court was brought by George C. Buchamann et al against William McKenzie et al to recover three hundred dollars damages for an alleged breach of covenant against an encumbrance in a deed for certain real estate conveyed by defendants to plaintiffs. The court below found for the plaintiffs,' and a judgment for three hundred dollars and costs was entered in favor of the defendants in error, the plaintiffs below. Plaintiffs in error ask for a reversal of this judgment for the reason that the court erred in excluding certain testimony and not receiving and considering the same, and that the judgment is contrary to law. The following facts, as shown in the finding of facts by the trial judge, were ruled out and not considered by the court below, and to this the defendants below excepted:

“There was no exception in the deed as it was prepared as to the lease of Alkire and Sands. Alkire and Sands had a lease on the east room they occupied, and which would not expire until November 15, 1915. At the time the deed was read, and before the delivery of the deed, the question arose as to the lease of Alkire and Sands. The plaintiffs desired to know whether they could have possession of the room occupied by Alkire and Sands, and were then informed by McKenzie, defendant, that Alkire and Sands had a right to occupy the room until the 15th of November, 1915, and that unless the plaintiffs would accept the deed with Alkire and Sands’ tenancy, and take the property subject to said lease, that the deed would be destroyed and the deal ealle,d off. Thereupon it was agreed by plaintiffs, before the delivery of the deed, that they would accept the deed and take the property subject to Alkire and Sands ’ lease, and it was then suggested that the deed be changed and that there be embodied in it an agreement and exception as to Alkire and Sands’ lease, but the deed having been before that time signed by all the parties, and their wives not being present, it was agreed that plaintiffs would accept the deed as written, in order to save re-writing and re-execution, and that they would accept the property subject to the Alkire and Sands’ tenancy.
‘ ‘ These negotiations were oral, and the conversation took place before the delivery of the deed. Upon the agreement by the plaintiffs that _ they would accept the property and pay the price of $7¡800 subject to the encumbrance of Alkire and Sands’ lease without changing the deed; the deed was then delivered to plaintiffs and the consideration was paid, and the court finds the facts to be that the plaintiffs accepted said deed as written, and without change subject to the Alkire and Sands’ lease, it having been stated to plaintiffs before the deed was delivered that unless they would so accept -the property with the encumbrance of Alkire and Sands thereon the parties would destroy the deed and the trade would be off; and the court finds from the evidence that it was stated orally by plaintiffs that they would accept the deed and pay the price subject to Alkire and Sands ’ lease, and that it was not necessary to put that exception in the deed, and the court finds that the trade was then consummated and the deed delivered without the exception being written therein. ’ ’

It will be conceded as a well settled principle of law that parol evidence can not be received to vary, contradict or change the terms of a written contract, because it is presumed that all of the provisions and terms of the contract are embodied therein; but in the case at bar the deed had been written, signed, witnessed and properly executed, but had not been delivered, and before its delivery, as disclosed in the finding of facts, the plaintiffs below agreed to waive the covenant of the warranty as to the lease in question and accept the property described in the deed subject thereto. Quoting from the finding of facts, “it was agreed that the plaintiffs would accept the deed as written, in order to save re-writing and re-execution, and that they would accept the property subject to the Alkire and Sands’ tenancy, it having been stated to plaintiffs before the deed was delivered that unless they woiúd so accept the property with the encumbrance of the Alkire and Sands’ lease thereon the defendants would destroy the deed and the trade would be declared off; and then the plaintiffs said they would accept the deed subject to said lease and pay the price, and the deed was then delivered and accepted.”

We can not weigh the evidence in the present case and are bound by the facts as contained in the finding of facts. If a bill of exceptions containing all the testimony from the trial below had been prepared and presented to us for review, we are not prepared to say what conclusion we would have reached as to the weight of the testimony in question. /

It will be observed that tbe testimony under consideration was concerning wbat occurred at tbe time of, and _was offered to establish a contract that was claimed to have been made and entered into between the covenantors and covenantees after the execution of the deed in question and before its delivery. The facts disclose that the deed would not have been delivered by the covenantors to the covenantees, but would have been destroyed, if the covenantees had not agreed to accept the same and assume the lease in controversy.

Under these circumstances we can not conceive of a rule of evidence so far reaching and so inequitable as to preclude the admissibility of such testimony. We therefore hold that parol evidence was admissible in the case at bar that in any way tended to prove that after the execution of the deed which contained covenants against encumbrances, and before its delivery to the grantees, it was agreed between them that the grantees should assume the lease in question, which was a lien upon the premises conveyed.

The weight to be given such evidence was to be determined by the trial judge to whom the case had been submitted, a jury having been waived by the parties in this case. We think in the present ease that a parol agreement entered into between the grantors and grantees, wherein the grantees were to assume the lease, was the moving cause of consummating the deal.

Let us inquire: Does proof of a promise to assume a lien, which is an encumbrance upon the property conveyed, conflict with or is it inconsistent with the terms of the conveyance? Certainly not. Can there be any doubt, in a suit for a breach of a covenant against an encumbrance, it could be shown by proper evidence that a lien (a lease in this case) had been assumed by the grantee after the execution of the deed and before its deliverv? We think not. The effect of the promise, which was proved by parol evidence in this case, was only to show that the grantees had agreed to assume the lease before the delivery of the deed, and thereby the lien on the property conveyed had been discharged so far as the grantors were concerned, and by reason thereof they were released from any liability on the covenant of warranty as to the lease.

For the reasons given we are of the opinion that the judgment of the court below should be reversed. Judgment reversed, and the cause is remanded to the common pleas court for a new trial.

Shields, J., and Powell, J., concur.


author: Jones (E. H.), P. J.

text:
    EMISSION OF OFFENSIVE ODORS BY A REDUCTION PLANT.
    Court of Appeals for Hamilton County.
    The Union Reduction Company v. John Story.

    Decided, April 14, 1916.

      Injunction — Lies Against Operation of a Plant Throwing off Noisome Odors, When.

    A reviewing court will not disturb an order enjoining a reduction plant from casting off noisome or offensive odors, where it is in evidence that such odors have been emitted to the annoyance of persons living nearly half a mile distant, and experts have testified without contradiction that with a plant properly equipped the emission of such odors could only be due to carelessness or accident.

      Peck, Shaffer & Peck and Sealy, Ferris <& McAvoy, for plaintiff in error.

      Kelley & Bemke, contra.

      Affirming Story v. Union Reduction Co., 19 N.P. (N.S.), — .
      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court May 29, 1916.

   Jones (E. H.), P. J.

In the court below John Story asked for an injunction against the Union Reduction Company restraining it from casting upon his premises and into his dwelling-house noisome smells, gases, odors, etc., arising from its garbage and dead animal crematory or reduction plant.

A permanent injunction was granted in this language:

“It is therefore ordered, adjudged and decreed by the court that an injunction be, and the same hereby is granted, restraining the defendant from operating its reduction plant so as to continuously create or cause to be cast upon the land of the plaintiff described in the petition any noisome or offensive odors, vapors or gases, or into or about the dwelling of plaintiff to the serious injury of plaintiff in health, comfort or property from and after the date of the entry of this decree. ’ ’

The company seeks here a reversal of this judgment.

There was a large number of witnesses called upon either side and, needless to say, the testimony is conflicting. There is a preponderance, however, in support of the finding of the court that ‘ ‘ at certain times a nuisance is created by the way in which the defendant’s reduction plant is operated.”

The reduction company has a contract with the city of Cincinnati requiring it to gather and dispose of by cremation and reduction process the garbage, dead animals and animal offal of the city. This work by law devolves upon the city, but there is statutory authority for the contract made with the plaintiff in error by the city, Section 3809, G-. C.

It is claimed that the plant has the sanction of the Legislature and city council, that it is performing a public function that has to do with and is closely related to the health and general welfare of the people of Cincinnati and that for these reasons an injunction will not lie. The authorities to which we are cited support this claim but provide that the work must be done with a high degree of care and with constant viligance by those in charge to see to it that only the latest and most improved machinery and appliances are employed.

The evidence shows without contradiction that this plant at the time of the final hearing, in its plan and equipment, was fully up to date. Mr. Jesse Moorman, president of the company, and Mr. Charles E. Woodworth, a man of many years’ experience and an expert upon the subject, were called by defendant below and testified as to the character of the plant.

Mr. Moorman testified that:

‘ ‘ The plant at onr last trial was in an uncompleted condition. Since then we have completed all the buildings, we have put new conveyors in the entire plant, we have added four more units to the digestors, we have completed the decreasing plant, and installed one new drier and a scrubber.” (Record, p. 697.)
‘ ‘ Since the last trial we have rebuilt this plant. In that time we have added — well, we have put in a complete new conveyor system from start to finish. A portion of this decreasing plant was installed at that time, and one boiler, and one drier, and four units of digestors, and the scrubber we have put in since that time.” (Record, p. 705.)

He also testified that he was in the garbage and reduction business at the same time in Indianapolis and St. Louis, and was familiar with other plants in the United States.

‘‘Q. Do you know of any mechanism for the distribution of gases, or elimination of odors, not in operation in this plant by yourself? A. I do not.” (Record, p.'702.).
“Q. What are the odors coming from the plant now, Mr. M'oonpan, what causes them? A. What odors do you mean?
‘1Q. I mean the odors that emanate from that plant; you get odors from the plant, do you not? A. You don’t get odors from the plant unless you go on our premises and get close to the plant.
“Q. You say there are no odors that carry away from the plant? A. No, not to amount to anything, no, sir.” (Record, p. 710.)
”Q. You think, so far as you know, there are no carrying odors from that plant today? A. I think not.” (Record, p. 711.)

Mr. Woodworth testified as follows:

“Q. I will ask you to state whether there is any device or mechanism in use anywhere for the elimination of odors and the destruction of the two smelling gases that has not been introduced at this plant, any successful device? A.- I know of none.
”Q. I wish you would state to the court whether there is anything in the plan of operations, or in the mechanism to be used which can be added to this plant to further eliminate the odors. A. I know of nothing, comparing them with other plants of similar character in the country.”
££Q. What difference is there in the carrying of the odors now and a year ago ? A. Well, with the device they have introduced they have mitigated the carrying of the noxious and offensive gases and odors to the extent of introducing an appliance that is accepted by all the garbage concerns in this country as being the most practical for this purpose.” (Record, pp. 661-662.)
‘' Q. Do you know of any plant that is superior to this equipment, to this plant, for the handling of the same tankage tonnage? A. know of no plant, to my knowledge, sir.” (Record, p. 668.)
‘ ‘ Q. With the introduction of the new apparatus, you say it will eliminate all the far carrying odors? A. Yes, sir, except under extraordinary conditions.
££Q. Except when there would be carelessness of the employes, valves getting out of order or the pipes bursting? A. Yes.”
‘ ‘ Q. About how far away from that plant would you say the local odors that are peculiar to the plant, would be discerned? A. Well, according to the direction of the wind, sir. If you were in the teeth of the wind, that might carry two or three blocks, and if you were against the wind you wouldn’t know the plant was there.
££Q. Well, now, if you were to be told that during the past five or six months, as often as once or twice a week, the people experienced the most disagreeable odors and that of burning flesh and garbage, at a distance from half a mile to a mile and a quarter, to what would you attribute that? A. Two or three times a week? If such were an established fact, I would think there was carelessness that often.” (Record, pp. 675-676.)
££Q. If you were to be told people in their homes a distance of from half a mile to a mile and a half were frequently unable during the past five or six months to eat their meals in comfort because of this sickening odor, what would you say that odor came from? A. I couldn’t tell of any other source, of an odor of that type, so far carrying, that would come from any other part of that process except what I told you, from gas that came from the digestor that was allowed to escape through some cause, either negligence or an accident.” (Record, p. 678.)

We thus have proof from the company’s witnesses that, except through carelessness or accident, there could be no appreciable annoyance to Mir. Story who lives nearly half a mile from the plant.

We can not see, therefore, how the plaintiff in error can justly complain of the restraining order granted by the court below. If its own expert witnesses are correct (and their evidence is not denied or controverted), there is no excuse in law or morals for offensive odors reaching Mr. Story’s home twenty-three hundred feet away. It seems to us that the order granted below restraining the defendant company from operating its reduction plant so as to continuously annoy Story in his said home with noisome or offensive odors, vapors or gases is reasonable and proper, and one from which there can be no relief in a reviewing court.

Judgment affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


text:
    JUDGMENT ATTACKED ON WEIGHT OF EVIDENCE GIVEN BY RELATIVES.
    Court of Appeals for Coshocton County.
    Pauline Crawford v. W. S. Merrell, Trustee, et al.

    Decided, February 28, 1916.

      Transaction Between Relatives — Evidence Relating to, Given by Relatives — Need Not be Regarded with Suspicion, When — Weight of Evidence — Charge of Court.

    1. An instruction to the jury that transactions between relatives “are always viewed with suspicion, and their testimony with regard to such transactions must he tafeen with allowance,” is not prejudicial where followed immediately by the statement that if such testimony “is of such a nature as to carry conviction to your mind that said witnesses are telling the truth, then it is entitled to as much weight as that of any other witnesses.”
    2. The rule that a reviewing court will not set aside a judgment on the ground of weight of the evidence, applies to a judgment which is based on evidence which is conflicting and of a character as to which different minds might arrive at different conclusions.

      G. B. Bell, George D. Klein and Frank Pigman, for plaintiff in error.

      F. E. Pomerene, Joseph L. McDowell and W. S. Merrell, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 16, 1916.

   Houck, J.

This is an error proceeding prosecuted from tlie common pleas court of this county to this court. The parties here stand in the reverse order in which they stood in the common pleas court. The plaintiff in error seeks to reverse a judgment of the common pleas court of Coshocton county in the sum of four thousand dollars which was entered on the verdict of the jury in the trial of said cause against said plaintiff in error, who was the defendant below. The suit below was brought by the defendant in error, the plaintiff below, as trustee in bankruptcy of Walker and Lawrence, against the plaintiff in error, the defendant below, to recover certain corporate stocks, or the value of same, alleged to have been transferred by Frank A. G. Lawrence, one of the bankrupts, to his mother, Pauline Crawford, the plaintiff in error.

The second amended petition avers that said Lawrence, while indebted to numerous banks and individuals, and at the time such indebtedness was created, was the owner of the corporate stocks in question and was at said time and ever since unable except for same to pay his debts and except for same was insolvent. That while so indebted he transferred to his mother, Pauline Crawford, the defendant, said stocks gratuitously and without consideration.

The defendant denied by answer all the material allegations in the second amended petition, and the cause, upon the pleadings filed, went to trial, resulting in a verdict in the sum of four thousand dollars in favor of the trustee. A motion for a new trial was filed, heard by the court, and overruled, and a judgment was entered on the verdict. A petition in error was filed in this court, -and a bill of exceptions containing the testimony of more than twenty witnesses, covering nearly two hundred pages of typewritten matter. This case being an important one, presenting several new questions of law and fact, the court has given it much time, and with no little amount of labor we have read the testimony of all of the witnesses. The petition in error sets forth many grounds of error, for which a reversal of the judgment below is sought. We have examined all of the grounds of alleged error and think that the following are the only ones urged by counsel in their brief and presented in oral argument which we deem necessary to discuss:

First. Is the second amended petition sufficient in law?
Second. Did the court err in its admission and rejection of testimony ?
Third. Did the court err in refusing to give to the jury special written requests before argument presented by the defendant below?
Fourth. Was the verdict of the jury against the manifest weight of the evidence?

We have examined the second amended petition and while in some respects it is not as clear and definite as it might be, yet it specifically sets forth the facts in such language as to fully and completely advise the defendant below of the claim made, and is, as we feel, a concise, legal and logical statement of the claims relied upon by the plaintiff, and is therefore sufficient in law.

Counsel for plaintiff in error strenuously contend that the trial court erred prejudicially as to the rights of their client in that part of the general charge in which the court said:

‘ ‘ Transactions between mere relations are always viewed with some suspicion, and their testimony in regard to such transactions must be taken with some allowance.”

Counsel say:

. ‘ ‘ This statement was very prejudicial, an invasion of the province of the jury, the giving of impeaching testimony by the court, and strictly against the law.”

"We agree with counsel that the above statement as to the law with reference to transactions between relatives is and would be erroneous and prejudicial if given in that language and without modification, but the trial court modified the above, which will be observed by reading the general charge. Following the above language and in the same sentence we find the following:

“But if it is of such a nature as to carry conviction to your mind that said witnesses are telling the truth, then it is entitled to as much weight as that of any other witness.”

Counsel for plaintiff in error in their brief did not give all the language used in that connection by the trial court. It will not do to take isolated sentences and statements in the general charge and predicate error thereon. All the language used concerning the particular subject must be taken into consideration, and from this determine whether or not the charge is sound in law and pertinent to the issue to be determined.

Applying this rule to that part of the charge complained of, we can reach but one conclusion and that is that it is a correct and proper statement of the law governing the weight that should be given evidence offered by relatives as to transactions between them.

While the bill of exceptions discloses some technical errors in the admission and rejection of certain testimony, we do not think it in any way prejudiced the substantial rights of the plaintiff in error.

Did the court err in refusing to give the special charges before argument as requested by the defendant below? If these special written requests were correct propositions of law applicable to the issue or issues to be determined in the present case, then it was prejudicial error to refuse them. With the view of ascertaining whether or not they are within this rule, we have carefully examined them and find that as abstract propositions of law they are sound but not applicable to the particular facts and the issues to be determined in this controversy, and therefore the court committed no error in refusing to submit them to the jury-

The one real question of fact in this ease and which was presented to the jury for determination — was Frank A. Gr. Lawrence at the time of the transaction in question solvent or insolvent? This being a question of fact was wholly and entirely for the jury to try and determine. We have read all of the testimony of the witnesses pro and con bearing upon this question, and we have no hesitancy in saying that the evidence is somewhat conflicting, being of such a character and nature that different minds might arrive at different conclusions. Questions of fact are for the jury to determine and questions of law for the court to pass upon. Courts should not invade the rights of a jury, and we do not think it is within the province of nor do we feel that it is the duty of a reviewing court to set aside a judgment entered on the verdict of a jury for the reason that the same is against the weight of the evidence, unless from an examination of all of the evidence the judgment is manifestly against the weight of the same; and of this fact the reviewing court must and should be clearly satisfied, and not so finding in the instant 'case the judgment below will not be reversed on 'the alleged error of the verdict of the jury and the judgment entered thereon being against the manifest weight of the evidence. ■ 15

It therefore follows from what we have already said that we find no error in the record prejudical to the rights of the plaintiff in error, and so finding, the judgment of the common pleas court must be affirmed.

Judgment affirmed.

Shields, J., and Powell, J., concur.


author: Jones (Oliver B.), J.

text:
    VALIDITY OF SEWER. ASSESSMENT AGAINST ACREAGE TRACT.
    Court of Appeals for Hamilton County.
    Horatio W. Burckhardt et al v. City of Cincinnati et al.
    Decided, November 29, 1915.

      Sewers — ■Assessment Against Acreage Tract — Held Yalid Although Present Buildings Gould Not be Connected with the Sewer.

    Where an acreage tract improved by only one dwelling but susceptible of subdivision to better advantage with lots fronting in part upon a street in which a sewer has been constructed, which is available for the sewerage of the lots abutting it, but not for the dwelling now on said land, the assessment for such sewer will not be held invalid but the lien for same will be restricted to so much of the land as abuts upon such sewer to the usual depths of lots in the neighborhood. (Section 3818, General Code.)

      Black, Swing & Black, for plaintiffs.

      Walter M. Schoenle and Frank K. Bowman, City Solicitors, contra.
   Jones (Oliver B.), J.

Plaintiffs own a tract of land of about seventeen acres, not subdivided into lots, lying on the northwesterly side of' Madison road. It is now improved with but one dwelling house thereon which is located south of the center and fronts towards Madison road, and which has no sewer connections, the house drainage being carried into a cess pool. The eastern boundary is Vista avenue, which runs northwardly from Madison road. The natural drainage of the land is to the west and south.

Under certain proceedings of the council of the city of Cincinnati, commenced by the resolution declaring it necessary to improve by sewering, passed December 27, 1910, sewers were constructed in certain streets, including that part of Vista avenue abutting 280 feet along the northern part of plaintiff’s property, and an assessment was levied on each front foot of the lands abutting thereon of $1.60 to pay the cost and expense of such improvement, by an ordinance passed November 13, 1911.

Under a contract dated April 11, 1913, plaintiffs granted to the city of Cincinnati the right to construct and maintain a trunk sewer through the western part of their lands, which should carry off the surface drainage and storm water of tfie adjoining lands, and plaintiffs were given the right to tap such sewer without assessment or charge to them for the purpose of connecting such tributary sewers as they might thereafter see fit to build in accordance with city specifications, for the sewering and drainage of their property as it should be developed. Madison road was also improved by the construction of a sewer therein.

Plaintiffs seek in this action to enjoin the collection of the assessment for the Vista avenue sewer on the ground that it can be of no benefit to their property because it is only three to four feet below the basement of the present residence, and that their premises do not need local drainage and are otherwise sufficiently provided therewith (Section 3819, General Code).

It would probably not be practical to use this sewer in Vista avenue for the house drainage of the present residence because of its depth and the fact that it is so far from the residence, and the natural topography would make a sewer connection preferable either with the sewer in Madison road or with the trunk sewer in the ravine in the western part of the premises. But the property might be so divided as to lay out lots on Vista avenue fronting that part in which the sewer is laid, and houses built thereon could be so constructed as to tap and use this sewer; and under the doctrine of Cincinnati v. Bickett, 26 Ohio St., 49, and Ford v. Toledo, 64 Ohio St., 92, the assessment for this sewer should be sustained. In levying the assessment against this property council should have fixed the depth to which the lien would attach to the fair average depth of lots in the neighborhood (Section 3813, General Code). If <so desired, that may be fixed now in the decree.

It appears to the court that if the present arrangement for the'sewerage of these premises had been in existence at that time, so far as this property is concerned that part of Vista avenue abutting it might have been omitted; but there is nothing before the court to show that it may not have been necessary for the drainage of property on the opposite side of Vista avenue.

This improvement had been made and the assessment levied some time before the sewerage contract was entered into between plaintiffs and the city, and the fact that it was not mentioned in that contract leads to the belief that it was not intended by the parties that the arrangement made therein should in any way affect the validity of the Vista avenue assessment. It must therefore be held legal, and plaintiff’s petition is dismissed.

Jones (E. IT.), P. J., and Gorman, J., concur.


author: Sayre, J.

text:
    CONTRACT THAT FOSTER. CHILD SHOULD INHERIT ENFORCED.
    Court of Appeals for Hocking County.
    Della Snyder v. May Shuttleworth et al.
    Decided, February 25, 1916.

      Specific Enforcement of Contract — Providing for Adoption of Child and Making Her an Heir — Persons to Whom the Property Has Descended — Required to Make Conveyance in Accordance With Said Agreement.

    A written contract, entered into by tbe parent of an infant child with strangers, by the terms of which the latter agreed to adopt such child, 'perform the duties and obligations of parents to such child, and further agreed that such child should inherit from each all property which she would be entitled to inherit if she were their own child, will be specifically enforced, by requiring the person to whom the legal title has descended to convey the property in accordance with the terms of the contract, when such contract has been fully performed on the part of such child.
    John W. Dennis filed his petition in the court of common pleas, stating that on the 27th day of January, 1881, he married Margaret A. Hartley, who died the 17th of October, 1906, seized of 73.6 aeres, more or less, of land in Hocking county, Ohio. The prayer was for dower.
    By leave of court Della Snyder filed an answer and cross-petition, and later an amended cross-petition which, omitting the formal parts, reads as follows :
    “On or about the 15th day of June, A. D. 1874, one James Lanning, the father of this answering defendant, duly entered into a written agreement with John J. Dennis and Eliza A. Dennis, his wife, wherein and whereby it was mutually agreed by and between the said parties, that said James Lanning, who was then a widower, should, and by the terms of said agreement did, give, grant and surrender unto the said John J. Dennis and Eliza A. Dennis, his infant daughter, this answering defendant, then about the age of two years,

      “That such grant and surrender was made for the sole purpose of having his said infant daughter, Della Lanning, adopted .by the said John J. Dennis and Eliza A. Dennis according to law.
    “And in consideration thereof the said John J. Dennis and Eliza A. Dennis promised, covenanted and agreed with the said James Lanning, that upon the execution of said contract to legally adopt said infant child Della Lanning, now Della Snyder, and would accept the rights and perform the duties and obligations of a parent to said child, and that said child should in all respects be to them and each of them as that of a child born in lawful wedlock.
    ‘ ‘'That said child should inherit by law from each of them any and all property to which she would be entitled to inherit if she were the legitimate child of the said John J. Dennis and Eliza A. Dennis, his wife, or either of them.
    “This defendant avers that said James Lanning, who is now deceased, and this defendant duly performed all the agreements and covenants of said contract on their part to be performed. That he duly surrendered his said infant child to said John J. Dennis and Eliza A. Dennis, who thereafter claimed, demanded and received all her services from said June 15, 1874, until December 24, 1891.
    ‘ ‘ This defendant avers that upon her surrender by her father, James Lanning, as aforesaid, that she was by the said John J. Dennis and Eliza A. Dennis taken to their home, where she remained continuously until December 24, 1891, when she was by and with the consent of said John J. Dennis and Eliza A. Dennis married and left their home.
    “That from said June 15, 1874, until December 24, 1891, she duly performed all the terms, conditions and covenants of the said agreement under their command, performing household and kitchen work, and for a large part of the time working in the fields on their farm, performing the labor of a man. That for more than sixteen years she worked for the said John J. Dennis and Eliza A. Dennis under their orders and demands and by virtue of the terms of said contract, and received no compensation therefor except her boarding and clothing.
    “This defendant further avers that said John J. Dennis and Eliza A. Dennis did not perform their part of said agreement in this, to-wit: They did not cause said Della Lanning to be adopted as their child according to law; nor they or either of them, by will or otherwise, provided for said child so that she would, or could, inherit or receive in any other manner the property to which, she would have been entitled to inherit if she were the legitimate child of said John J. Dennis and Eliza A. Dennis.
    “This defendant further says that on March 8th, 1902, said John J. Dennis died intestate, leaving the plaintiff, John W. Dennis, his only child and heir at law. That on December 10, 1903, the said Eliza A. Dennis died intestate, leaving Margaret A. Dennis, wife of said John W. Dennis, her only child and heir at law. That on October 17th, 1906, the said Margaret A. Dennis died intestate, leaving the defendant, May Shuttleworth, intermarried with the defendant, Hugh 0. Shuttleworth, her only child and heir at law.
    “That said Eliza A. Dennis died seized in fee simple of the premises in the petition described, together with some other lands now disposed of. That said lands descended to her daughter, Margaret A. Dennis, subject to the rights of this defendant therein.
    “That said Margaret A. Dennis died seized of the premises in the petition described, but subject to the rights and interest of this defendant therein. That subject thereto the said lands descended to the said defendant, May Shuttleworth.
    “That the defendant, May Shuttleworth, has ever since October 17, 1906, received all of the rents, issues and profits from the said lands.
    “That said contract has been lost or destroyed, and for that reason she can not attach a copy to this pleading. That she did not know the terms and conditions of said contract and her legal rights thereunder until within two years prior to the filing of her answer and cross-petition herein.” * * *
    A general demurrer to the amended cross-petition was sustained.

      John C. Pettit and C. W. McGleary, for plaintiff in error.

      Tom O. Crossin, contra.
   Sayre, J.

There is presented for determination the question, whether a written contract, entered into by the parent of an infant child with strangers, by the terms of which the latter agreed to adopt such child, perform the duties and obligations of a parent to such child, and further agreed that such child should inherit from each all property which she would inherit if she were their own child, will be specifically enforced when fully performed on the part of such child.

This question is discussed, but left undecided, in Shahan v. Swan, 48 O. S., 25, 31, 32. The question was not presented in that case because the contract there under consideration was a parol contract.

The ease of Schwartz v. Steel, 8 C. C., 154, which was reversed in 55 O. S., 685, on the authority of Shahan v. Swan, was also founded upon an oral contract.

There was introduced in that case — Schwartz v. Steel — the record of a proceeding in the probate court, by which the parties who had agreed to adopt the child undertook to carry out that agreement when the latter was twenty-one years of age. But this record, which consisted of a petition signed by Carnahan and wife, ‘ ‘ disclosing their intention to make Sarah Ann their heir, ’ ’ and her consent thereto, and the journal entry of the adoption which had been placed upon the records of the probate court, would fail utterly to show that Carnahan and wife, when Sarah Ann was two years old, had proposed to adopt her as their own and make her their heir. In other words, this record wholly fails to show a written contract for adoption made with the Carnahans when Sarah Ann was a child, and the contract proven was an oral one, which brought the case within the rule of Shahan v. Swan.

So the question for our consideration has never been decided in Ohio so far as shown by reported decisions.

In many jurisdictions an oral contract of this character, when fully performed on the part of the person for whose benefit the contract was made, will be specifically enforced. Written contracts were specifically enforced in the following cases: Chehak v. Battles (Ia.), 110 N. W., 330, 8 L. R. A. (N. S.), 1130; Sharkey v. McDermott, 11 Mo., 648, 4 S. W., 107; Winne v. Winne, 166 N. Y., 263, 82 Am. St., 647; Burns v. Smith (Mont.), 53 Pac. Rep., 742; Fiske v. Lawton (Minn.), 144 N. W., 455; Anderson v. Anderson (Kan.), 88 Pac., 743, 9 L. R. A. (N. S.), 229; Starnes v. Hatcher (Tenn.), 117 S. W., 219. In these cases many objections raised to tbe power and right of a court of equity to decree specific performance have been considered, and it is unnecessary to repeat what is therein reported.

In Starnes v. Hatcher, supra, the opinion (p. 221) says this:

“Unquestionably, so far as the contract contemplated fixing a status for these complainants as heirs by statutory adoption, this now can not be done. By the death of Starnes, who failed during life to comply with his obligation to adopt these parties, it is made impossible for the courts to do what he should have done in this regard. But it does not follow from this that the complainants are to be cut off from all relief. As we have seen, his agreement was not only to adopt, but to leave these parties at his death his estate. Thus it covered two different duties, which he obligated himself to discharge. These were as distinct in character as if he had bound himself in a strictly legal manner, upon a valuable consideration, to convey two tracts of land' to another. To a bill to enforce specific performance of such contract he would not be permitted to repel one seeking its enforcement upon the ground that, subsequent to the contract, he had incapacitated himself from a performance of it in its entirety by selling to a'third party one of the tracts covered by his covenant. In such case, upon the election of the complainant, relief would be granted, at least to the extent of the tract remaining unsold. Story’s Equity Jurisprudence, Section 779.”

So in the ease under consideration John J. Dennis and Eliza A. Dennis having agreed to adopt Della Snyder (then Lanning), and having agreed that she should inherit any and all property to which she would be entitled if she were their child, there is no reason, since the contract can not be enforced as to the matter of adoption, why it should not be enforced as to the property.

Now the contract does not bind John J. Dennis and Eliza A. Dennis to leave their property so that Della would inherit anything from them. The contract only requires that she shall inherit such property as she would be entitled to inherit if she were their child. She was to be treated, so far as the property was concerned, as they would or might treat one of their own children. Eliza A. Dennis and her husband could have devised all their property, or conveyed it by deed, to some other person and Della would not have had any redress whatever. Pemberton v. Perrin (Neb.), 144 N. W., 164; Doppmann v. Doppmann, 114 N. Y. Supp., 620, 122 N. Y. Supp., 1126; Crawford v. Wilson (Ga.), 78 S. E., 30. If Eliza A. Deunis had devised or conveyed by deed all her property to Margaret A. Dennis, Della Snyder would have been like any other child who is disinherited, because a parent may dispose of his property by will or deed without regard to his children.

But the property was not conveyed by deed or devised. It was left to pass by law, and the legal title has descended to May Shuttleworth. If Della had been adopted, as agreed, she would now have been the owner of the undivided one-half of the premises described in the petition. Eliza A. Dennis-’and her husband have, therefore, failed to comply with their contract, although Della has fully complied with hers. Since the property has passed under the statute of descent, Della is entitled to be treated, so far as this property is concerned, as if she were the child of Eliza A. Dennis. Della Snyder did not inherit the property. She is not an heir of Eliza A. Dennis. Her rights in the premises are lodged in the written contract of 1874, fully performed by her.

In Emery v. Darling, 50 O. S., 160, the contract was that the property should pass by will, and it was held that at the death of the promisor the promisee was the equitable owner of the same.

In the instant case the property is to pass by means of adoption. In each case the person making the promise failed to comply with its terms. In each case the property passed by descent. If, after the property passed by descent in the one case, the person to whom the promise was made became the equitable owner thereof, no reason can be assigned why the person to whom the promise was made in the other did not become the 'equitable owner of the property in controversy.

The contract is in writing, and hence does not conflict with the statute of frauds. The title to an undivided one-half of the premises described in the petition descended to Margaret A. Dennis in trust for Della Snyder, and then on the death of Mlargaret A. it • descended to May Shuttleworth in trust for Della Snyder. There is no obstacle to a specific performance, and it is only justice that, after her father released her to a stranger and gave up the society of his daughter, according to the contract of 1874, and after Della has fully completed the same, she should now be decreed what it was agreed she should have when the contract was made.

The demurrer to the amended cross-petition should have been overruled. The judgment will be reversed and remanded for further proceedings.

Judgment reversed.

Walters, J., and Merriman, J., concur.


author: ITouck, J.

text:
    EJECTMENT NOT AVAILABLE TO A MORTGAGOR WHERE CONDITION OF THE MORTGAGE HAS BEEN BROKEN.
    Court of Appeals for Stark County.
    Isaac Stripe v. The National Fireproofing Co.

    Decided, January Term, 1916.

      Foreclosure — Jurisdiction under a Cross-Petition» Not Obtained Without Service, When — Bights of Mortgagor and Mortgagee After Condition .Broken — Ejectment.
    1. Jurisdiction to render judgment on a cross-petition is not conferred by the service had on the petition praying for foreclosure of a mortgage, where the cross-petition was not filed for several months after the entering of a decree of sale on the petition, and did not ask for the sale of the same land as that described in the petition but had reference to a different parcel of land, and the relief sought was not the same but of a different nature, and the co-defendant whom it is sought to hold under the service upon the petition did not enter his appearance under the cross-petition.
    2. But a suit in ejectment does not lie upon the petition of a mortgagor, or his heirs and devisees or supposed successors in title, where the condition of the mortgage has been broken; from which it follows that the defective service in the instant case is without avail to the plaintiff who claims title through the mortgagor.

      J. W. Craine and J. W. J offers, for plaintiff in error.

      Pomerene, Ambler & Pomerene and Kratsch & Maier, contra.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 6, 1916.

   ITouck, J.

This is an error proceeding in which it is sought to reverse the judgment of the common pleas court of this county. The parties stand here in the same relation to each other as in the court below. The action was one in ejectment and a jury being waived in the court below was submitted to the court on the petition of the plaintiff and the first defense in the second amended answer of the defendant, the National Fireproofing Company, and the amended reply thereto, and an agreed statement of facts. The court below found for the defendant and error is now prosecuted to this court seeking a reversal of the judgment below. The facts necessary for a proper determination of this controversy obtained from the agreed statement of facts are as follows:

“John Stripe was the owner of the northwest quarter of Section No. 31, Township No. 12, Range No. 8, Stark county, Ohio. On June 1,1861, to secure certain notes John Stripe executed and delivered to Daniel J. Wise a mortgage on the south half of said northwest quarter. Later Daniel J. Wise sold and transferred his notes and mortgages to John H. Wise. John H. Wise died, and these notes and mortgages came into the possession of Oliver P. Shanafelt as his administrator. On April 7, 1877, John Stripe and wife, for the purpose of securing nine promissory notes, executed and delivered to Hiram Stripe a mortgage on the entire northwest quarter, excepting 1.35 acres. This mortgage was the second mortgage on the south half and the first mortgage on the north half of said northwest quarter. On the 8th day of April, 1878, Hiram Stripe transferred his notes and mortgage to Hiram R. Wise. On the 15th day of March, 1878, John Stripe and wife, to secure certain notes, executed and delivered to John Miller a mortgage on the entire northwest quarter, excepting said 1.35 acres, which mortgage was the third mortgage on the south half and the second mortgage on the north half of said real estate.

“Oliver P. Shanafelt, as administrator, on the 13th day of May, 1884, commenced an action to foreclose his mortgage on the south half of said northwest quarter making John Stripe, Hiram R. Wise, John Miller et al, defendants, and served all of the defendants with summons excepting John Miller. John Stripe having filed an answer to the petition of Oliver P. Shana-felt, as administrator, said administrator having filed a reply to said answer, the cause came on for hearing on said petition, answer and reply, and on the 2nd day of January, 1885, a decree was rendered in favor of the plaintiff, Oliver P. Shanafelt, as such administrator. At the time of this decree, which was January 2, 1885, Hiram R. Wise had not filed an answer or cross-petition in this case, although the case was started May 13, 1884, and Hiram R. Wise was duly served with summons. On September 11, 1885, being eight months and nine days after the trial and decree entered in favor of the plaintiff, Oliver P. Shana-felt, Hiram R. Wise filed his cross-petition praying to have his mortgage foreclosed not only on the south half but on the north half of said northwest quarter. No summons was issued under this cross-petition, nor did John Stripe enter his appearance. On March 1, 1886, the south half of said northwest quarter was sold under the decree rendered in favor of Oliver P. Shanafelt, administrator, and on March 3, 1886, said decree was confirmed and deed ordered, the purchaser being Hiram R. Wise. On March 1, 1886, Hiram R. Wise obtained a judgment and decree under his said cross-petition. On August 17, 1891, Hiram R. Wise assigned and transferred whatever interest he had in his decree to George W. Crouse, and on December 14, 1895, the north half of said northwest quarter was sold under the Hiram R. Wise decree to George W. Crouse, and on December 16, 1895, the sale was confirmed by the court and said Crouse entered into possession of said premises and continued thus until he sold same to tbe defendant, the National Fireproofing Company, which was in tbe actual possession of same at the commencement of the suit in ejectment. That John Stripe on November 16, 1892, executed his last will and testament in which he attempted to devise the real estate in question to certain heirs, and the plaintiff now claims title thereto by said devise and certain deeds conveying the same to him. That said John Stripe departed this life on July 18, 1894, and at said time was in the actual possession of the real estate in question.”

We find from the facts in this case but two questions are presented for determination by the court, and that they are decisive of this controversy. The first question is, Did the court have jurisdiction over the person of John Stripe in face of the fact that no summons was served on him and there being no waiver of service of summons by him on the cross-petition of Iiiram R. Wise? The facts clearly show that the petition upon which service was had did not include the real estate sought to be sold under and by the cross-petition of Hiram R. Wise, but embraced an entirely different parcel of land, and the relief sought in the cross-petition was of a different nature and not the same, and therefore certainly could not bind John Stripe when he had not been served with summons and had not otherwise entered his appearance with reference to the relief sought in the cross-petition.

We feel that our Supreme Court has finally determined this question in the case of Southward v. Jamison et .al, 66 O. S., 290, the first syllabus being as follows:

' “So long as the cross-petition in a case is strictly confined to matters in question in the petition, the summons issued on the petition would be sufficient notice to sustain a judgment rendered on the cross-petition, but when the cross-petition sets up matters which are not drawn in question in the petition, and seeks affirmative relief against a co-defendant of a nature different from that sought in the petition, a summons to the party to be charged issued on the petition will not confer jurisdiction to render judgment on the cross-petition, especially when the cross-petition is filed after the defendant thereto is in default for answer to the petition and a summons on the cross-petition in such case is necessary. ’

But we do not think this question is decisive of the real problem to be solved in the ease at bar. We hold that it must be determined upon the rights of mortgagor and mortgagee after condition broken, which brings us to the second question in this inquiry." What are the legal rights of the mortgagor and mortgagee of real property after condition in the mortgage is broken ? Was the remedy of plaintiff, if he had any, ejectment? We think not. Section 11903 of the General Code of'Ohio provides:

“In an action for the recovery of real property, it shall be sufficient if the plaintiff sets up in his petition that he has a legal estate therein and is entitled to the possession thereof, describing it with certainty as to identity, and that the defendant unlawfully keeps him out of the possession. ” * # *

The plaintiff must allege and prove that he has a legal estate in the real estate of which he seeks to-gain possession. Did Isaac Stripe have a legal estate in the real estate in question at the time oí the commencement of this suit? Certainly not. He had the title, if any, that John Stripe had in same, and what title did John Stripe have at the time of his decease? Simply the equity of redemption growing out of his rights as mortgagor after the condition in the mortgage had been broken. What are the rights of a mortgagor in the mortgaged premises after the condition in the mortgage is broken?

“A mortgage on real estate is regarded in equity as a mere security for the performance of its condition of defeasance and when that condition is a payment of a debt the security is regarded as an incident of the debt.” Swartz v. Leist, 13 O. S., 419.
“The mortgage being in equity regarded as a mere security for the debt, the legal title to the mortgaged premises remains in the mortgagor as against all the world, except the mortgagee, and also as against him until condition broken, but after condition broken the legal title as between mortgagor and mortgagee is vested in the mortgagee.’’ Allen v. Everly, 24 O. S., 97; Hibbs v. Ins. Co., 40 O. S., 543-559; Martin v. Alter, 42 O. S., 94.
‘‘ In our own state the right to foreclose a mortgage after condition broken either by a strict foreclosure or by a foreclosure and sale of the mortgaged property, continued down to the adoption of the Code of Civil Procedure in 1853. By 'Section 374 of the Code (which is now Section 11588 of the General Code) it is provided that: ‘When the mortgage is foreclosed a sale of the premises shall be ordered.’ This prohibits a strict foreclosure in this state, and now after condition broken if the mortgagee appeals to the courts to enforce his mortgage he must elect between two remedies, he may sue for the recovery of the possession of the land in a real action in the nature of ejectment, using his mortgage to prove his title, or he may sue for a foreclosure of his mortgage and a sale of the mortgaged premises. After condition broken the title is vested in the mortgagee as between him and the mortgagor, and as the right of the mortgagee to recover the possession of the land by ejectment always existed at common law and has not been taken away by statute, it still exists in this state.” Kerr et al v. Lydecher, admrx., 51 O. S., 249-250.

Applying the above principles of law to the conceded facts in this case we can reach but one conclusion, and that is that the judgment of the common pleas court is right and should be affirmed.

Judgment affirmed.

Powell, J., and Ferneding, J. (sitting in place of Shields, J.), concur.


text:
    RUNNING OF MOVING PICTURE SHOWS ON SUNDAY MAY BE PROHIBITED.
    Court of Appeals for Ross County.
    Clarence Myers v. State of Ohio.

    Decided, February 29, 1916.

      Sunday Laws — Running a Moving Picture Show is Giving a Theatrical Performance — ■Contrary to the Statute Relating to Sabbath Desecration.

    A moving picture show is a theatrical performance and is prohibited on Sunday by Section 13049, General Code of Ohio.
    The plaintiff in error was charged, in an affidavit filed in the mayor’s court of Chillicotke, with unlawfully and purposely exhibiting to the public, in a building known as the Majestic Theatre, on East Second street in that city, “a theatrical performance, to-wit, a moving picture show, on the first day of the week, commonly called Sunday. ’ ’
    It appears from the testimony that the defendant was exhibiting a moving picture show on Sunday, the 21st of November, 1915, at the place mentioned in the affidavit; that the name of the picture was “Judith of Bethulia;” that at the time the picture was exhibited there was no scenery used and no music of any kind; that the picture had been approved by the board of censors, in accordance with the law of Ohio, and that tickets were sold in the usual way.

      Walter W. Boulger, for plaintiff in error.

      John P. Phillips, A. P. Minshall and Garrett Glaypool, contra.

      Motion to direct the Court of Appeals to certify its record in this case overruled, April 25, 1916.

   Sayre, J.

The defendant was found guilty of a violation of Section 13049, General Code of Ohio, and the judgment was affirmed by the Court of Common Pleas of Ross County.

Section 13049 reads as follows:

“Whoever, on Sunday, participates in or exhibits to the public with or without charge for admittance, in a building, room, ground, garden or other place, a theatrical or dramatic performance or an equestrian or circus performance of jugglers, acrobats, rope dancing or sparring exhibition, variety show, negro minstrelsy, living statuary, ballooning, base ball playing in the forenoon, ten pins or other game of similar kind, or participates in keeping a low or disorderly house or resort, or sells, disposes of or gives away ale, beer, porter or spirituous liquor in a building appendant or adjacent thereto, where such show, performance, or exhibition is given, or houses or place is kept, on complaint within twenty days thereafter, shall be fined not more than one hundred dollars or imprisoned in jail not more than six months, or both.”

The question for determination is, whether a moving picture show is a “theatrical performance.”

When the words “theatrical performance” were originally placed in the statute there were no moving picture shows, but at the time of the last amendment, April 26, 1911 (O. L., 102, p. 92), they were common things. The fact that there were no moving picture shows when the statute was originally passed is not decisive of the question. State v. Cleveland, 83 O. S., 61.

The argument that the Legislature meant to allow moving picture shows on Sunday because they were not included by name in the amendment of 1911 is not at all convincing or satisfactory.

The Century Dictionary defines the adjective “theatrical” thus:

“Of or pertaining to a theatrical or scenic representation; resembling the manner of dramatic performances; as, theatrical performances; theatrical gestures.”

The same authority defines “performance” thus:

“3. A musical, dramatic or other entertainment; * #

It does not require any assembling of facts or arguments to demonstrate that a moving picture show is an entertainment resembling the manner of a dramatic performance. So a moving picture show is within the strict letter of the statute. Is it within the real meaning and spirit of the descriptive terms of the'same ? Section 13049 is a police regulation, the purpose of which is to fix regular recurring days of rest from certain secular pursuits therein named, and thus to promote the business, health and well-being of society. State v. Powell, 58 O. S., 324.

The exhibition of the ordinary picture show is a secular pursuit, just as the old line dramatic performance is, and as base ball playing is. The very object aimed at in the statute was the prevention pf the prosecution of these secular pursuits every day.

The two performances differ in the fact that jn the picture show moving pictures of persons and things are thrown on a screen, and in the old line dramatic performance the persons and things appear upon the stage. In the former there is absence of the human voice; in the latter the human voice is present. But while these differences and some others are found, the two in many respects are similar. In the moving picture show there are human forms in action, exhibiting fear, terror, courage, cowardice, hope, love, hatred, happiness, sadness, despair, and all the various passions, 'virtues, vices and human characteristics which are portrayed on the stage by real persons. In the moving picture show situations are represented which draw moral truths, as on the stage by real actors. In the picture show there is the same exaggeration of events as portrayed by real actors. The effect upon the audience is substantially the same. In both the moving picture show and the old line dramatic performance the particular thing aimed at is the portrayal of the events and emotions of life, often highly exaggerated and misrepresented, to afford entertainment to the audience.

Further, the moving picture represents to the eye greater, larger and more comprehensive scenic effects than can possibly be produced upon the real stage.

These facts are referred to simply to make plain that the moving picture show is in actual fact a scenic representation, and by the very best authority a scenic representation is a theatrical entertainment or performance.

The judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Walters, J., and Mbrriman, J., concur.


author: Gorman, J.

text:
    INSUFFICIENT EVIDENCE TO SUPPORT REFORMATION OF CONTRACT.
    Court of Appeals for Hamilton County.
    Michael J. Gibbons v. The J. H. Day Company.

    Decided, July 19, 1915.

      Contract for Heating Building — Action for Reformation of Contract— Evidence Insufficient to Warrant Reformation.

    Under the rule that before a contract can be reformed the evidence establishing a mistake must be clear and convincing and must show that the mistake was not that of one of the parties alone but was mutual, the court is unable to grant the prayer for a reformation of the contract in this case.

      Littleford, James, Ballard & Frost and Van Deman & Vorys, for plaintiff.

      Clore <‡ Clayton, contra.

      Motion to direct the Court of Appeals to certify its record overruled by the Supreme Court, May 9, 1916.

   Gorman, J.

The action below set out in the petition consisted of three causes. The first was to reform the contract for the heating of the defendant company’s plant on Harrison avenue in this city, which contract was entered into between, the plaintiff and the defendant.

The contract is in writing, signed on behalf of plaintiff by M. W. Ward, superintendent, and on behalf of the defendant company by J. H. Day as president. At the time of the trial of the case below Mr. Day was dead and Mir. Ward was non compos, so that the testimony of neither was available. It is claimed by the plaintiff that there was a'mutual mistake in the execution of the contract in that there was omitted therefrom a reference to the plans and specifications, and that the same were to be made a part of the contract.

We have examined the record and considered the briefs of the parties in this ease, and we are unable to find that there was a mutual mistake made by the parties. The contract for the heating of .defendant company’s plant appears to be full and complete, and there is no evidence before us which tends to show that the parties had before them any plans and specifications, or intended to make them a part of the contract either by reference or by attachment to the contract. It is elementary law that in order to warrant a court in reforming a contract, the evidence to establish a mistake must be clear and convincing, and that the mistake was not that of one of the parties alone but was mutual.

We are unable to find from the evidence in this case that there was a mistake made by the parties hereto, and we therefore deny the prayer of the petition as to the first cause of action, which cause of action will be dismissed at the cost of the plaintiff.

The issues made upon the second and third causes of action set out in the petition are not before us, and the case will be remanded to the court of common pleas for further proceedings according to law.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.