author: Washburn, P. J.

text:
    CONTRACT ALLEGED TO HAVE BEEN MADE BY REASON OF FALSE REPRESENTATIONS.
    Court of Appeals for Wayne County.
    J. B. Colt Company v. John Wasson and Florence Wasson.
    Decided, March, 1922.

      Charge of Court — Action to Avoid a Contract on Ground of False Representations — Whether Material False Representations xoere made a Question for the Jury — Characteristics of Such Representations must he Explained to the Jury — Error for the Court to Assume or Determine that All or Any of the Representations made were False.

      . In an action for recovery under a contract of sale, to which a claim of false representations has been interposed, it is for the jury to determine whether the alleged false representations, if made, were untrue and were material to the contract; and for the court to assume, in its instructions to the Jury, that all or any of the representations complained of were false or were materia] is reversible error.
   Washburn, P. J.

' This is an error proceeding in which the parties'appear the same as in the court of common pleas.

Plaintiff and defendants entered into a written contract by which plaintiff sold to defendants an acetylene lighting plant to be installed by the defendants in a house they were then building, the contract being, as has been said, in writing and signed by the parties.

The plaintiff shipped the goods described in the contract and in all respects complied with the contract and was entitled .to recover the contract price, unless the defendants were justified in not accepting the goods on the sole ground that plaintiff’s agent who negotiated the contract made certain false and: fraudulent representations upon which defendants relied and were thereby induced to enter into the contract.

The contract which was signed by defendants, husband and wife, was read by one of them and the other had ample opportunity to read the same, and they do not claim that there were any false representations as to the character of the instrument they signed, but they do claim that said agent falsely represented that the architect and contractor of defendants “pronounced said plant a good thing;” that the cost of operating said plant would not exceed two cents per day; that it was very easy to care for and the refuse therefrom could be run off through the house sewer; that an explosion was impossible; that the insurance company permitted said plants in buildings and recommended them, and that the price agreed upon included the cost of installation.

Under the charge of the court, the jury found that some one or more of these representations were made; that they were false; that the defendants relied upon them and were justified in doing so and would not have agreed to the purchase of said plant but for such false representations and consequently the verdict and judgment was for the defendants.

Two errors are relied upon (1) that some of these claimed representations were mere puffing or dealer’s talk, and too vague and- indefinite and partook too much of the character of predictions or opinions to constitute material false representations, and that therefore evidence in reference thereto and as to their falsity should-not have been admitted; and (2) that the court erred in the charge in reference thereto, such error being an act of commission and not mere omission. These two claimed errors will be considered together.

Fraud at law is a right of action-in a court of common law jurisdiction sounding in damages and is usually termed an action of deceit.

Fraud in equity is a right of action of which a court of equity will take cognizance, but the fraud is the same in either case, the distinction being in the nature of the relief rather than in the character of the fraud.

In either case the misstatement must be of a past or existing transaction, and the deception must relate to facts then existing, or Which had previously existed and which were material to the dealings between the parties in which the deception is employed.

Vague and indefinite statements or representations do not con-statute a defense to an action for specific, performance, of a contract; to be fraudulent the representations must be definite and not mere general statements, uncertain in their character, nor simply puffing or dealer’s talk, mere commendation; a simple statement of opinion is not regarded as a misrepresentation where no confidential relation exists between the parties; and representations as to what will be performed, or will take place in the future, are regarded as predictions and not fraudulent, whether the matter is before the court as an action for damages for deceit or defensively as a ground of avoidance of a written contract. Wilder v. DeCow, 18 Minn., 470; King v. Eagle Mills, 10 Allen (Mass.), 548.

While the mere expression of an opinion, which opinion does not involve the assertion of a fact, although the opinion be incorrect, will not make the person expressing the opinion liable in an action for false and fraudulent representations, still in making statements language may be used and the circumstances may be such as that it is difficult to determine whether the party intended to merely express an opinion, or whether the representations were intended as the statement of a fact, and it is for the jury to determine whether the representation was made as a mere expression of opinion or was a statement of a fact that was calculated and intended to deceive and mislead.

Doubtless there are some statements which the court can determine as a matter of law are mere opinion or commendation or prediction as to the future, and therefore not actionable, and as to such the jury may properly be instructed to disregard them; but when there is a doubt as to the meaning or construction o£ the language used or intention of the-parties, a question is presented which is for the jury to determine under proper instructions.

In the ease at bar the contract was in writing and contained a clause that the written contract “covers all the agreements between” the parties, and “that no agent or representative” * * * has made any statements or agreements, verbal or written, modifying or adding to the tgerms ánd conditions herein set forth”; and if the- evidence which it is claimed was improperly admitted merely tended to prove a warranty and thus add a term to the written contract, it was not competent; but if the evidence tended to prove a charge of a material false representation, it was- competent. Except as to the second defense, which clearly attempted to add a term to the contract and which was finally ruled out by (he court the matters testified to were charged as material false representations and for the most part they were such as presented a jury question as to whether or not they were such.

Tlie claimed false representations were all made in one conversation; a witness was asked to relate that conversation and an objection was made. The question was proper, a part of the answer was clearly competent and there was no motion to strike out any part of the answer, and therefore the record does not present the’ question of whether or not evidence as to any particular claimed false representation was incompetent. But some of the matters testified to in this case partook so largely of the expression of a mere opinion, rather than a statement of fact calculated and intended to deceive and mislead, as to require the court to charge fully and correctly on the subject as to what should be considered false representations. The court charged as follows:

“Now gentlemen of the jury, the defendants claim in substance that thg plaintiff by its agent, Butler, represented or said to the defendants that the cost of operating this plant would not exceed two cents per day; that it was easily taken care of; that-the refuse therefrom could be run off through the house sewer; that there was no danger in charging said plant as an explosion was impossible; that you could not explode it with a fire; that the defendants’ fire insurance agent, Yoder, had recommended it; that defendants’ contractor, Maurer, said it was a good thing. # # # #
“Now gentlemen, how is this matter? Was there fraud practiced by the plaintiff’s agent which induced the defendants to sign this contract, or was there not ? That is the question for you to decide.
“In order that a contract may be avoided- on the ground of fraud it must be shown,
. 1. That material false representations were made.
2. That the person making them knew they were false.
3. That the party to whom they were made relied upon them, and
4. That the contract would not have been signed had the false representations not been made. * # *.
“It is not necessary, in order to find for the defendants, that you find that all of the representations claimed to have been made, were made; but if. you find that cmy one of such material representations were made, which was false, known by Butler to be false, relied upon by defendants, and the contract signed by them because such representation was made, then you will have found the existence of all of the necessary elements to constitute fraud, and your verdict would be for the defendants.” .

No place in the charge did the court explain to the jury the characteristics of a material false representation as applicable 1o a case of this kind, nor that to justify one’s relying upon representations they must relate to facts then existing or which had previously existed, and that they cannot consist, where no confidential relation exists, of the expression of a mere opinion or commendation or prediction as to what will take place in the future. The court did not permit the jury to consider such matters and determine what representations should be considered as material; on the contrary, the court assumed that any and all of the claimed statements, if they were made and were untrue, Avould constitute material false representations.

Under the pleadings and evidence in this case Ave find that the court’s assuming to determine that any and all of said claimed representations were material was an error of commission which prejudicially'affected the rights of the plaintiff, and for error in the charge of the court the judgment is reversed and the ease is remanded for a new trial.

Treash, J., and Pardee, J., concur in judgment.


source: Caselaw Access Project

author: Cushing, J.

license: Public Domain

text:
    ACTION FOR DIVORCE CAN NOT BE MAINTAINED BY A NON-RESIDENT.
    Court of Appeals for Clermont County.
    Stephanie Marie Malgras, v. Louis Eugene Malgras.
    Decided, November 1, 1921.

      Alien Wife Petitions for Divorce — Action not Resisted by Husband— But Petition Dismissed for Want. of Jurisdiction — Residence of Wife does not Follow Domiole of Husband — Section 11980.

    A trial court is without jurisdiction to hear an action for divorce, where the plaintiff is not a resident of the county or of the state.

      Paxton, Warrington & Seasongood and Robert P Goldman, for plaintiff in error.
    No appearance for defendant in error.
   Cushing, J.

The action in the court of common pleas was for divorce. The parties were married in London, England, July 24th, 1907. They lived togethsr for about four months. The husband then deserted the wife. In 1914, he came to Cincinnati, and obtained employment. In 1917, he purchased a farm in Clermont county, where he has since resided.

January 21st, 1921, the wife filed this action for divorce. The husband acknowledged receipt of service nf summons and attempted to enter his appearance in the cause.

The record is, that the wife has never actually been in, or resided in Ohio, nor in the United States.

The husband did not answer or demur. The cause was uncontested. The trial court dismissed the petition on the ground that it did not have jurisiction under the statute of Ohio to hear a case where the plaintiff was not a resident of the county, or the state of Ohio.

In a carefully prepared brief, counsel for plaintiff advances the theory that residence and domicile are synonymous terms; that the domicile of the wife is that of the husband, and, therefore, in contemplation of law, she is domiciled' in Clermont county, Ohio, although counsel admits that she has never actually resided in the county or the state. It is sought by interpretation to have the word “residence” used in Section 11980 of the General Code read “domicile.”

Counsel’s theory of the case appeals to the court as possessing merit and justice, and it would seem only just that where an action is brought in the county of the husband’s residence, that she should be granted a hearing. However, a review of the decisions in the United S’tates render such a determination impossible.

In Friedrich v. Friedrich, 119 N. E. 449, the court held that under the statute of Massachusetts a wife residing in New York could not maintain an original libel for divorce in the courts of Massachusetts, although the husband lived in that state and county, and had so resided for more than four years preceding the filing of the action.

In Rudolph v. Wetherington’s Administrator, et al, 180 Ky., 271, the court considers the question of domicile and residence. Mrs. Nellie Wetherington was a resident of Arkansas. She formed and expressed an intention to remove and become a citizen of Ballard county Kentucky, and, in furtherance of that intention, left her home in Arkansas, with her personal belongings, November 20th, 1916, arriving at the city of Paducah, Kentucky, November 24th, was taken sick and died November 26th, 1916, without having been -in Ballard county. She died intestate, leaving two insurance policies, which became due upon her death to her estate. • Application was made in Ballard county for the appointment of an administrator. The statute provided that the court could appoint an administrator in the county of the deceased’s residence. The court in that ease cites Dicey on Conflict of' Laws, page 106, as follows:

“The only principle which can be laid down as governing all questions of domicile is this, that where a party is alleged to have' abandoned his domicile of origin, and to have acquired a new one, it is necessary to show that there would both be factum and animus. There must be the act, and there must be the intention.”

The court further says:

“Domicile of choice is entirely a question of residence and intent or, as it is usually put, the factum, and animus. Both must concur in order that domicile may be established.”

In Gordon v. Yost, 140 Fed. 79, the court says:

“The rule that the domicile of the husband is that of the wife does not apply in cases of desertion by the husband.”

The question here presented was considered in the ease of Dutcher v. Dutcher, 39 Wis. 651. In that case the court says, syl. 3:

“The rule that the domicile of the wife follows that of the husband, is inapplicable, at least under our statute, to a case of divorce, where the parties are actually living in different jurisdictions1; and the fact that the husband’s domicile has been in this state for many years will not enable the wife to sue for a divorce here, if she has continued to live in another state.”

Section 4 of Article IV of the Constitution o f Ohio provides:

“The jurisdiction of the courts of common pleas, and of the judges thereof, shall be fixed by law.”

•Section 11979-General Code provides:

“Courts of common pleas may grant divorces for the following causes, ****.”

Section 11980 General Code provides:

“Except in an action for alimony only, the plaintiff must have -been a resident of the state at least one year before filing the petition. Actions for divorce or for alimony shall be brought in the county of which the plaintiff is and has been, for at least thirty days immediately preceding the filing of the petition, a bona fide resident, or in the county where the cause of action arose.”

The cause of action in this case arose in London, England. The domicile of the marriage was in London, England. The language of the statute is plain and unambiguous, and on the question of the jurisdiction of the court in divorce cases, the statute must be followed.

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

Hamilton P. J., and Buchwaalter, J. concur.


author: Walters, J.

text:
    QUALIFYING PHRASE IN A WILL HELD TO BE A PRECATORY DECLARATION.
    Court of Appeals for Pike County.
    Heath et al v. Borst et al.
    Decided, July 19, 1916.

      Wills — Children Given an Absolute Devise in Lands — Bui in a Later Clause Alienation is Forbidden — Repugnant Clause Held Void.

    Where a testator by will -devises to his children certain specified realty in absolute language without words of limitation, and later in the same item attempts to limit or qualify the estate by providing “all of which real estate I give and bequeath unto the said Jane and Harvey unto them and their children, which real estate I design for their use, not to be disposed ol' by sale, neither by them nor their immediate children; in case either of the above children should die tlion the other to possess the whole,” there arises a repugnancy, the language forbidding alienation is void, such qualifying provision is in the nature of a precatory declaration, and the devisees take a fee simple estate.

      E. A. Tinker and Mr.. Elijah Outright, Jr., for plaintiffs in error.

      Dougherty & Moore, for defendants in error.
   Walters, J.

Tbis court is called upon to construe the following bequest or devise contained in the will of John Pancake, Sr., which was executed'the 14th day of September, 1834:

“I give and bequeath unto my youngest children, Jane and Harvey two-thirds of all my lands in the botton, that is to say, the home place, the Mounts place, the Switzer place and the Iiultz place; two-thirds of all of which for them to be laid off of the upper side adjoining John Foster and Joseph ' Foster so that the two-thirds of all shall be in one body; also two-thirds of the Bowyer farm adjoining Joseph Foster’s’land, all of which real estate I give and bequeath unto the said Jane and Harvey unto them and their children, which real estate I design for their use, not to be disposed of by sale, neither by them nor their immediate children; in ease either of the above children should die then the other to possess the whole.”

The devisees, Jane and Harvey, at the time the will was executed were respectively nine and seven years of age. After they grew up they amicably divided this land between them, and Harvey conveyed the piece described in the petition to Edward B. Hatfield. .

The question for us to determine under this item of the will is: ■What estate did Harvey take under the provision of this item?

It 'will be noticed that the testator bequeaths or devises to Jane and Harvey two-thirds of all of the lands referred to in this item. In other words, if nothing further was said by the testator, Jane and Harvey would take an absolute fee simple title in the estate. But the testator, in the same item, after describing the lands, adds the following:

“ # # * ap 0f which real estate I give and bequeath unto the said Jane and Harvey unto them and their children, which real estate I design for .their use, not to be disposed of by sale, neither by them nor their immediate children; in case either of the above children should die then the other to possess the whole.”

Here we have a devise giving to Jane and Harvey an absolute fee simple estate and then an attempt to limit and qualify that estate by the language just above quoted. There arises, therefore, in this item of the will, a repugnancy, and the court must reject one and sustain the other provision or declare the will void for uncertainty.

A remainder can not be engrafted upon a fee. The true reason of this rule is not because the law will not permit it, but because the thing is impossible. I can not give the whole of my estate to one and part of it to another. John Pancake, Sr., could not give the whole of this estate to Jane and Iiarvey in fee simple, and then say that they should have only a life estate, or that they were tenants in common with their children — for the same reason that he could not give a square circle, or give nothing — because it involves an uncertainty.

Conflicting provisions in a will should be reconciled so as to conform to the manifest general intent, and it is only in cases where such provisions are wholly and absolutely repugnant that either of them should be rejected. In this case there is an absolute repugnancy. The testator could not give them a fee simple and a life estate at the same time and by the same instrument. The language in that clause which forbids alienation is absolutely void.

In Anderson v. Cary et al., 36 Ohio St., 506, the syllabus reads:

“Lands were devised as follows: I give and bequeath the farm on which I now live, of 285 acres, to my two sons, Thomas and Lincoln, upon the following conditions: 1. I direct that they, the said sons, shall not be allowed to sell and dispose of said farm until the expiration of ten years from the time my son, Charjes Lincoln, arrives, at full age, except to one another, nor shall either of' my said sons have authority to mortgage or incumber said farm in any manner whatsoever, except in the sale to one another as aforesaid. Meld,
1 ‘ 1. The devisees took a vested estate in fee' simple.
“2. A violation of the so-called conditions did not work a forfeiture of the estate devised.
‘ ‘ 3. The restraint attempted to be imposed on the power of the devisees to alien or incumber the estate was void, as repugnant to the devise and contrary to public policy.
“4. The estate of the devisees was' not converted into a trust, by reason of a gift, in the same will, to the widow of the testator, of the one-third of the rents and profits of same lands.”

Section 10580, General Code, provides:

‘ ‘ Every devise in a will of lands, tenements; or hereditaments, shall convey all of the estate of the devisor therein, which he could lawfully devise, unless it clearly appears by the will that the devisor intended to convey a less estate.”

This section was in force at the time this will was made in 1834.

We have examined a large number of cases where testators have made conflicting, inconsistent and repugnant provisions in wills, and while there are a few cases, chiefly the case of Smith v. Bell, 6 Peters, 68, in which Chief Justice Marshall delivered the opinion,- where it is held that the limitation of the fee is legal, yet the supreme court, in Potter v. Couch, 35 Law. Ed., 721 (141 U. S. 296), distinguishes that case in the fifth proposition of the syllabus, where it is said:

“In a devise of land in fee simple, a condition against all alienation is void, because repugnant to the estate devised; for the same reason, a limitation over, in case the first devisee shall alien, is equally void, whether the estate be legal or equitable.”

All modern cases hold the rule to be that where an estate or interest in land is devised, or personalty is bequeathed, in clear and absolute language, without words of limitation, the devise or bequest can not be defeated or limited by a subsequent doubtful provision inferentially raising a limitation upon the prior devise or bequest. When there is an absolute or unlimited devise or bequest of property, a subsequent clause, expressing a wish, desire or direction for its disposition after the death of •the devisee or legatee, will not defeat the devise or bequest or limit the estate or interest in the property to the right to possess and use during the life of the devisee or legatee. The absolute devise or bequest stands and the other clause is to be regarded as presenting precatory language. The will must be interpreted to invest in the devisee or legatee the fee simple title of the land and the absolute property in the subject of the bequest. Williams v. Allison, 33 Iowa, 278; Benkert v. Jacoby, 36 Iowa, 273; Bona v. Meier, 47 Iowa, 607; Alden v. Johnson, 63 Iowa, 124, 18 N. W. Rep., 696; In re Will of Burbank, 69 Iowa, 378, 28 N. W. Rep., 648; McKenzie’s Appeal, 41 Cohn., 607; Jackson, ex dem., v. Bull, 10 Johns., 19; Mitchell v. Morse, 77 Me., 423, 1 Atl. Rep., 141; Ramsdell v. Ramsdell, 21 Me., 288; Jones v. Bacon, 68 Me., 34; Harris v. Knapp, 21 Pick., 412; Lynde v. Estabrook, 7 Allen, 68; Fiske v. Cobb, 6 Gray, 144; Gifford v. Choate, 100 Mass., 343; Williams v. Worthington, 49 Md., 572; Foose v. Whitmore, 82 N. Y., 405; Campbell v. Beaumont, 91 N. Y., 464; Stowell v. Hastings, 59 Vt., 494, 8 Atl. Rep., 738; Seibert v. Wise, 70 Pa. St., 147; Moore v. Sanders, 15 S. C., 440; Canedy v. Jones, 19 S. C., 297, and Anderson v. Cary, 36 Ohio St., 506.

In Bills v. Bills, 45 N. W. Rep., 748 (80 Iowa, 269), the syllabus is1 as follows:

“Where a testator devises all his personal and real property to his wife, except as thereafter provided in his will, and in a subsequent clause states that it is his ‘ desire ’ that what remains at her decease shall be divided between named persons, the wife takes a fee-simple in the realty, and the absolute property in the personalty, the latter clause being merely precatory.”

In Snodgrass v. Brandenburg, 164 Ind., 59 (72 N. E. Rep., 1030), the court used this language at page 69:

“If upon an examination of a will, a court concludes that it was the purpose of the testator to make a grant, and that he attempted, by subsequent language, to create a legal estate in derogation of the grant, that is the end of the discussion, for a testator must effectuate his intent within the rules of law. The rule that we have invoked does not apply to such cases; it is one of construction, and is wholly consistent with the proposition that the court will explore the four corners of the instrument to bring out its meaning; but, if it is found that one clause, standing alone, clearly evinces a purpose to create a certain interest, and the subsequent language merely operates to create a doubt about the testator’s intent in that particular, the latter words will be disregarded. ”

In Stowell et al. v. Stowell, 8 Atl. Rep., 738 (59 Vt., 494), the first proposition of the syllabus is

“A testator devised the residue of his estate to his wife ‘for benefit and support, to use and dispose of as she may think proper,’ and then provided that ‘if any of the estate should be left in my wife’s possession at her death,’ that the same be divided between his brother and sisters. Held, that the wife took an absolute estate, and that the remainder over was void for repugnancy. ’ ’

In Alden v. Johnson, 18 N. W. Rep., 696 (63 Iowa, 124), the first proposition of the syllabus is as follows:

“Where property is devised in fee-simple to a widow, and words are added directing the disposition of what remains at her death, such words, if precatory, do not affect her title, and, if intended to impose a condition, are void, as repugnant thereto.”

In the opinion the court says, at page 697:

“If they [the words of the will] be regarded as imposing a condition or limitation to the effect that she shall take less than the unqualified and absolute interest and title in the property, they are repugnant to prior language of the instrument devising to her the fee-simple title in the land, and an unqualified right to the personal property, and are therefore void.”

See also Widows’ Home v. Lippardt, 70 Ohio St., 261, and Darlington v. Compton, 20 C. C., 242. In Mitchell v. Morse, 1 Atl. Rep., 141 (77 Me., 423), the syllabus is:

“A devise to M., without words of limitation, remainder over in case of M.’s1 death, vests an estate in fee:simple in M., and the devise over is void.”

In Jackson v. Robins, 16 Johns., 537, the court in the syllabus says:

“Where A devises all his real and personal estate to his wife, and in case of her death, ivithout giving, etc. by will, or otherwise selling or assigning the said estate, then he devises the same to his daughter D; * * * [the wife] takes the entire fee simple, both by force of the word estate, and of the absolute power given by the will, and the subsequent limitation, being repugnant thereto, is void, either as a remainder, * * * or as an executory devise, * * * in either case, it is void. Where there is a devise for life, in express terms, a power of disposal annexed, does not enlarge it to a fee; but where to a general devise, without any specification of the quantity of interest, and absolute power of disposal is annexed, the devisee takes a fee.”

In the opinion the court says, at page 588:

“We may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it- carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life only. * * *
“When he [the testator] attempted to ingraft an executory devise or limitation over, upon a fee * * * he did what was incompatible with his other and principal intention, and which the courts must, of necessity, reject as repugnant and void.”

In the syllabus of McKenzie’s Appeal, 41 Conn., 607, the court holds:

“A testator gave his widow certain personal estate and provided that if any remained at her décease it should be equally divided among his children. Held, that an absolute power of disposal was given to the widow and that the gift over was inconsistent with this power and therefore void.”

In the opinion in the same case, at page 156, the court cites the case of Jackson, ex dem. Brewster, v. Bull, 10 Johns., 19, and says the language of the testator was: “In case my son should die without lawful issue, the said property he dies possessed of, I will,” etc.

The words were held to imply a power of alienation by the devisee and consequently, an absolute ownership repugnant to the limitation and destructive of it.

In Harris v. Knapp, 21 Pick., 412, it is said at page 416:

“The words ‘whatever shall remain,’ necessarily mean that portion of the property bequeathed, which shall be undisposed of at her decease; * * * and therefore the implication is inevitable, that she had a power to make such disposition. This is inconsistent with the supposition, that the whole was to remain undiminished in the hands of the executor, of other trustee, for the purpose of satisfying the gift over.”

In Flinn v. Davis et al., 18 Ala., 132, the third proposition of the syllabus reads:

“When by the terms of a will the first devisee is given the absolute right to dispose of the property, a limitation over of so much as he may leave undisposed of at his death, is void for repugnancy.”

In the will of John Pancake, Sr., he makes two devises of the same property: “I give and bequeath unto my youngest children Jane and ITarvey two-thirds of all my lands in the bottom, * * * all of which real estate I given and bequeath unto the said Jane and Harvey unto them and their children.” It would seem clear that by the first devise he had given a fee simple estate to Jane and Harvey, and then afterwards had attempted to waive or limit the estate he had previously given them in fee simple.

It would seem that the testator’s will in this case was drawn by a person who was unskilled in the use of language and that what th^ testator meant by the qualifying provision in item.two was simply a request or wish or design, ydiich last word he uses, that this land devised to Jane and Harvey should not be disposed of by them or their children, and the language is in the nature of a precatory declaration. The last clause, providing that if either of the above children should die then the other to possess the whole, it seems would give to the survivor a fee simple, as it certainly would after the elimination of the alienation clause, and if the one so dynig had children they would be cut out. There is no life estate created by the language used in this item and it is uncertain what construction was meant by the language “to them and their children.”

The conclusion is that Jane and Harvey took a fee simple estate.

Judgment affirmed.

Sayre and Merriman, JJ., concur.


author: Tkeash, J.

text:
    PROSECUTION FOR RAPE.
    Court of Appeals for Wayne County.
    Benjamin F. Zell, v. The State of Ohio.
    Decided, January 15, 1922.

      Criminal Law — Relative of Prosecuting Witness on Grand Jury which Returned Indictment against Defendant — Competency of Evidence against One Charged with Rape — Child Born as a Result of the Attack Exhibited to the Jury — Prosecuting Witness Silent as to the Attack until Child is Born.

    1. The presence of the father of the prosecuting witness on the grand jury which indicted the defendant for rape does not afford ground for sustaining a plea in abatement to the indictment.
    2. In a prosecution for rape it is competent for the prosecuting witness to exhibit to the jury the child horn as a result of the alleged attack, and it is permissable for the prosecuting attorney to direct the attention of the jury to and comment upon such resemblances as he claims exist between the child and the defendant and tend to prove the paternity of the child.
    3. Where it is in evidence that the prosecuting witness struggled against her assailant, and was only prevented from making outcry ■by his grasp of her throat, and was threatened with the death of both herself and her mother if she ever told of the outrage, it is for the jury to say whether, under the stress of such threats and the humiliation attending the attack, her failure to make any disclosure regarding the attack until the child was born affords reason for doubting the truth of her story as to the attack.
    «“Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, March 7, 1922.
    Error to the Court of Common Pleas.

      A. D Metz, attorney for planitiff in error.

      W. G. Patterson, Prosecuting Attorney, and W. H. Boss, attorneys for defendant in error.
   Tkeash, J.

Benjamin F. Zell was indicted, and found guilty on April 29, 1921, of raping Ruth. — —-, a school girl, who bore the relation of grand niece to him by marriage, his wife being a sister of the gild’s grandmother. With the Zells at the time also lived a sister of Mrs. Zell. At the trial the girl testified that she had been in the habit of visiting her aunts, who lived not far from the home of her parents, and that on the evening of March 18, 1920|, she went there to borrow a book, and finding her aunts not at home, started to leave, when her uncle siezed her by the arm, and with his hand on her throat, forced her to accompany him to a shed in the rear-of the house, where, forcibly and against her will, he ravished her, overpowering all her resistance. At the same time, she said he threatened to bill her and her mother if she ever told anybody of the affair, and that by reason of these threats and the shame and humiliation of the affair, she never told her parents or other persons of the offense.

She attended school regularly until December 23rd, 1920, and neither her parents, teachers, friends or school mates suspected her condition. On December 24th, she became ill, and in a few hours gave birth to a child. She then stated that Zell was the father of the child, and for the first time told of the circumstances of the offense. Zell at the time of the crime charged was 72 years of age and the girl a few days past 16 years. The family physician testified that she was still a child — weighing less than 100 pounds, and was only physically developed as a child of 13 years. She was a sophomore in high school and had never had any boy company or companions, and as far as the record discloses, was a girl of unblemished character and reputation. Zell, a machinist by trade, was short of stature, strong and active for a man of his years.

On the stand Zell denied the girl’s story in toto3 and claimed he did not know anything concerning her condition until ten days after the birth of the child, although he did admit he and his wife had been invited and planned to go to the girl’s home for Christmas dinner on the day following the birth of the child, but did not go there, and the record does not disclose any reason why they did not go. The next day after learning of the child’s birth, he left Wooster, to seek work elsewhere as he explained.

A motion for a new trial having been overruled, a petition in error was filed in this court seeking to reverse the judgment of the common pleas court.

There are numerous assignments of alleged error noted in the petition in error, but the principal ones relied upon in oral argument and in the brief of counsel may be classified as follows: (1) That the plea in abatement to the indictment should have been sustained, for the reason that the father of the prosecutrix was a member of the grand jury which returned the indictment against the defendant; (2) That the court erred in permitting the proseeuting witness to exhibit the baby to the jury during the giving of her testimony, and in permitting the prosecuting attorney to argue from such evidence the resemblance between the baby and the accused; (3) That the crime of rape was not proven, because there was no evidence of an outcry at the time Of the alleged commission of the offsense, nor complaint thereof on the part of the prosecutrix within reasonable time thereafter; (4) That the verdict of the jury is manifestly against the weight of the evidence.

(1) It has long been settled in this state that the presence of a near relative of the victim as a member of the grand jury does not invalidate an indictment against one accused of crime committed against such victim. The Supreme Court, in the case of State v. Easter, 30 O. S. p. 542, held:

“It is not a good plea to an indictment for murder, that a member of the grand jury was a nephew of the person who was murdered.”

The reason for this is well stated by .Wright, J., at page 543:

‘ ‘ The law has declared that certain qualifications are necessary. Can we go further, and say the grand juror must also be no kin to those injured by the accused? A moment’s consideration will show that this would be imposing absurd and impossible conditions. The grand jury do not know who will be accused before them, and if, upon a case being presented in which an injury has been done to some relation of a member of the jury, that member is to be disqualified, it may be necessary to have a new grand jury for every crime committed.”

And it has also been held, in the ease of State v. Deiter, 81 O. S. 504, that a plea in abatement does not lie in such a ease.

(2) The second complaint is that the prosecuting witness was permitted to exhibit the child to the jury and the prosecuting attorney was allowed, over objection, to refer to and argue the resemblance of the child to the accused, to establish its paternity, one of the particular comparisons being the red hair of the baby and the red hair which the accused admitted, on cross-examination, he possessed as a child.

There are no reported holdings upon this subject in this state in prosecutions for rape, and the decisions of courts of last resort in other states are in conflict. The case of State v. Danforth, 73 N. H. 215, 66 Atl. 839, 111 Am. St.. Rep. 600, appears to be the leading and best reasoned ease on the subject, holding as follows:

“2. In a prosecution for rape the state could not be confined to proof by oral testimony, and excluded from presenting to the jury a child born to prosecutrix, as .evidence tending to establish the fact of birth and prior unlawful intercourse; hence there was no error in exhibiting the child to the jury.
‘ ‘ 3. In a prosecution for rape it was not error to permit counsel for the state to call attention to peculiarities in the features of a child born to prosecutrix and of the defendant, and to a general resemblance between them, as, if defendant was the father of the child, his guilt was proved, and any evidence tending to establish that relationship was relevant.
“4. In a prosecution for rape, whether the features of a child born to prosecutrix are sufficiently developed to authorize its use by comparison with defendant, as evidence on the issue of paternity, is purely a question of fact.”

A much-quoted case, of the same title, State v. Danforth, 48 Iowa 43, 30 Am. Rep. 387, holds to the contrary. The point of divergence in the reasoning of these opposing doctrines seems to center about the immaturity and changing characteristics of a very young child as compared to a mature person, and that this evidence is so vague, uncertain and fanciful as to be misleading to a jury. Other courts have fixed a definite age limit as necessary before tfie evidence is admissible,

'Most of the courts so holding concede, however, that there may be cases in which the maturity of the child or the characteristics or peculiarities relied upon as ground of resemblance or dissimilarity render the evidence competent upon the issue of paternity.

We feel, however, that this objection goes to the weight rather than the competency of the evidence.

It is common knowledge among lay people as among experts that children do not develop uniformly, either mentally or physically, but that both mental and hysical characteristics are transmittable by inheritance, and do frequently appear in. offspring in various stages of their development. A jury of laymen are as capable of making the comparison when both the putative parent and child are before them as the court. At least, it is difficult to see how the law can fix a definite time when such characteristics ■ may safely be said to appear, when nature has fixed none. At best it would require the court to take expert evidence in each ease to determine when such.period had arrived, if that were possible at all. Whether the features and characteristics of a child' are sufficiently developed to warrant its use as evidence by comparison with the alleged parent, is purely a question of fact and not of law, and should be submitted to the jury for determination and not decided by the personal impression of the court as a matter of law. Certainly, at least, the exhibiting of a child born to prosecutrix within due time after the offense charged, is competent to go to the jury in a prosecution for rape as evidence tending to eorrobate the testimony of prosecutrix and establish the fact of birth and prior unlawful intercourse.

We will not review further the conflicting holdings of the courts of the various states. They are cited and digested in able opinions referred to, in a note to State v. Harvey, 112 Iowa 416, 52 L. R. A. 500; also see note, 6 Am.-Eng. Ann. Cases, 560, 3 R. C. L. 764; Wigmore on Evidence, Vol. 1, Sec. 166.

If this was a question of- first impression, we might be inclined to be of more uncertainty as to its solution, but the Supreme Court of Ohio in Crow v. Jordan, 49 O. S. 655, has passed upon this very question in a bastary proceeding, and has said at page 656 of its opinion:

“There was no error in permitting the child to be exhibited to the jury as evidence of alleged paternity and in corroboration of the testimony of the prosecutrix.”

We have been unable to distinguish between the competency of such evidence in a bastardy proceeding and in a criminal prosecution for rape, and we believe there is none, either in reason or upon authority of reported decisions. The issue in both prosecutions to which the evidence is directed is the paternity of the child, and if relevant in one case it should be relevant in the other involving the same issue. From an examination of the holding of many courts, it appears that where such evidence has been admitted or excluded in bastardy proceedings, it has likewise been consistently admitted or refused in rape cases.

We accordingly hold that in a criminal prosecution for rape, the child born as a result thereof may be exhibited to the jury as competent evidence, together with the other evidence upon the question of the paternity of the child and in corroboration of the testimony of the prosecutrix.

Such evidence being competent, it is not error for counsel for the state to comment thereon in his argument to the jury, and to call attention to any resemblances between the child and the defendant, and no error was committed by the court in either admitting such evidence or in the conduct of the state’s attorney in commenting thereon.

(3) The silence and delay of the prosecutrix in making complaint of the commission of the offense is claimed as evidence absolutely refuting the girl’s story and establishing the innocence of the accused.

If this evidence stood alone or unexplained, unquestionably it would east great discredit and suspicion upon the girl’s story, and might warrant the court in setting aside the verdict for failure of proof. But the girl did testify that she did struggle and tried to make an outcry, but was prevented by the hand of her assailant upon her throat and was silenced by the threat of death to herself and her mother if she ever told of the outrage, and we consider this a proper matter for the determination of the jury, along with the other evidence bearing upon the guilt or innocence of the accused.

The relationship, age, size, and circumstances of the parties to this case make the statements of the Supreme Court in the case of State v. Labus, decided February 15, 1921, and reported in Ohio Law Bulletin and Reporter, August 22, 1921, particularly appropriate to the case at bar:

‘ ‘ The force and violence necessary in rape is naturally a relative term, dependent upon the age, size and strength of the parties and their relation to each other; as the relation of father and daughter under 12 years of age with the filial obligation of obedience to the parent, the same degree of force and violence would not be necessary upon a person of such tender years as would be required were the parties more nearly equal in age, size and strength; but in the case at bar, there are sufficient threats, fright, intimidation and the like, coupled with the unnatural and atrocious act, to overwhelmingly prove the necessary force and violence to constitute rape, wholly independent of the presumption that the prosecutrix was incapable in law of consenting to such violence.”

Again, in the opinion of the case of Dunn v. State, 45 O. S. 249, at p. 252, the court says:

‘ ‘ Silence and delay in making known the wrong would be likely to awaken suspicion.and doubt as to the truth of complainant’s statement. If, says Blackstone, she conceals the injury for any considerable time after she has had an opportunity to complain, such a circumstance would carry a strong presumption, though not conclusive, that her testimony is false or feigned. 4 Comm. 213. But when delay by the prosecutrix in making complaint or declaring the circumstances of the wrong has occurred, such delay may be explanied, and excused by proof of sufficient cause therefore, as for instance, want of suitable opportunity, or duress, or threats by the perpetrator of the wrong. ’ ’

(4) The last assignment of error is that the verdict of the jury was manifestly against the weight of the evidence. All the members of this court have carefully read the entire evidence in the bill of exceptions, and have given the case careful consideration, especially in view of the age of the defendant, and while we are not insensible to the human appeal of the spectacle of so aged a man going to the penitentiary to spend what doubtless may be the remaining years of his life, yet we cannot find that the verdict of the jury was manifestly against the weight of the evidence, but on the contrary we do find the verdict was fully warranted by the evidence, and that there were no material errors committed in the trial warranting a retrial of the case. The accused was represented by able and experienced counsel, who was untiring at every step of the proceeding in protecting his interests, and every right which the- law guarantees to one accused of crime was accorded to him by court, jury and the state. The admissions of the defendant while on the witness stand and his conduct after the birth of the child, furnish strong corroboration of the claims of the girl. In addition to the facts already stated, the record discloses that Zell had been very friendly with the girl, giving her presents and helping her with her lessons.

On the day of the birth of the child he had gone to her home, but had been refused admittance by the girl’s grandmother, who waived him away, saying he was not wanted there, and he went without question or protest. He and his wife had been invited to her house for Christmas dinner the next day, but did not go or give any reason for not going. He claimed he did not know of the girl’s condition or birth of the child until ten days after, when a relative who had been visiting the girl’s home came to his house and reported that Zell was charged with being the father of the child. The next day he left town, to get work as he claimed, and went from place to place, getting his mail at general delivery, and having mail sent to him by his wife from the railroad station box — not through the post office. For almost three months the sheriff was unable to locate him, although* he searched his home and tried to trace his whereabouts.

All these facts and many others were before the jury. They heard and saw the witnesses. They had opportunity to note the appearance and demeanor of the girl and defendant, upon the witness stand, especially under cross-examination, when conscience is oftentimes more clearly revealed in appearances than by words, and after a fair trial twelve men found him guilty .beyond a reasonable doubt of the crime charged in the indictment; and we, from a reading of the record alone, can find no reason for disturbing their verdict. .What the defendant must suffer is the result of his own wrong doing, and now, as in the day it was first uttered, “Verily, the way of the transgressor is hard.” So abhorrant and cowardly a crime, committed against a little school girl, could only come from a depraved and perverted nature, and the full penalty of the law is none too severe to meet it.

There are numerous other claims of alleged irregularities set forth in the petition in error, and we have examined each carefully, and while there were some slight errors and irregularities, such as occur in the trial of almost every case, yet we do not find any one singly or all collectively constitute error matérially affecting the rights of the accused.

The judgment of the common pleas court is affirmed, and case remanded for execution according to law.

Washburn, P. J., and Pardee, J., concur in judgment.


text:
    WATER WORKS REGULATIONS.
    Court of Appeals for Hamilton County.
    Rogers, a Taxpayer, v. The City of Cincinnati.

    Decided, August 2, 1920.

      Municipal Corporations — Method of Charging for Water — Authority of Director of Public Service to Malee Regulations — An Answer that a Method Resulting in Discrimination has been Corrected is 'Good against Demurrer.

    1. Where a petition in an action to enjoin a city from carrying out certain regulations establishing a method of charging for water alleges that it is an unlawful discrimination to require part of the users of water to pay by one system and part by another, an answer setting forth later regulations, prescribing but one method by which the city charges for water, is good against demurrer.
    2. Sections 3957 and 3958, General Code, vest in the director of public service power to make such by-laws and regulations as he deems necessary in the management of the waterworks and the collection of water rents, and the courts have no power to control such discretion where there has been no abuse of it.

      Grosley & Rogers, for plaintiff.

      Saul Zielonha, city solictor, and Dennis J. Ryan assistant city solicitor, for defendant.

      Affirming Rogers v. City of Cincinnati, 23 N.P.(N.S.), 257.

   Cushing, J.

Plaintiff’s action in the court of common pleas was to enjoin the city of Cincinnati from carrying out the regulation made 'by its service, director, establishing a method of charging for water. For many years two methods were used — for residences, what was known as the survey • system, and for business houses, the meter system. On May 1, 1917, the service director promulgated bylaws and regulations with reference to the use and charges for water. On May 12, 1917, an amendment to the regulation was adopted.

Plaintiff filed his action February 12, 1919. He set out in full the regulation of May 1, 1917, but did not include the amendment of May 12,1917. The petition charged that it was arbitrary, unreasonable and unlawful to charge part of the users of water by the survey system and others by the meter system; that it was an unlawful abuse of corporate power to require a part of the users of water to inst-al and repair meters, as a means of measuring water, while others escape that expense; and that it was unlawful to require any of the users of water to install and keep in repair meters as a means of measuring water.

To this petition the city filed an answer admitting the adoption of the regulation set out in the petition, and added the amendment of May 12,1917, that all service now supplied by the survey assessment shall be metered within a period of two years from and after May 12, 1917. The answer stated at the time of the adoption of the -amendment there were 17,370 houses supplied by the survey system, and that at that time all business users of water were charged by the meter system. Under the regulation the city was divided into zones and the users of water were requird within two years to install the meter system.

Plaintiff demurred to the answer.

Of the three divisions of plaintiff’s petition the first and second amount to the same and are to the effect that it is an unlawful discrimination to require part of the users of water to pay by the survey and part by the meter system.

The two years regulation ended May 11, 1919.

The record is silent as to the number of users of water supplied by the meter system at the time the petition was filed. The reg-. ulation not being questioned .by users of water other than those in litigation, it will be presumed that the balance of the 17,370 users of water above mentioned have acquiesced in the regulation and installed the meter system. So that whatever might have been the argument when the two systems were used is of no force at this time. There is now but one method by which the city charges for water, and the first and second contentions of plaintiff could not have any force after May 12, 1919.

The main argument of counsel is that the city should install and keep in repair all meters. Section 3957, General Code, authorizes the director of public service to make by-laws and regulations that he deems necessary for the safe, economical and efficient management and operation of the waterworks; that such regulations shall have the force and effect or ordinances. Section 3958 authorizes the director, for the purpose of paying the expenses of conducting and managing the waterworks, to assess and collect water rent of sufficient amount in such manner as he deems most equitable upon all tenements and premises supplied with water. This section of the statute vests in the director of public service a discretion as to the manner he deems most equitable for the collection for water service. The language of the statute is:

“For the purpose of paying the expenses of conducting and managing the water works, such director may assess and collect from time to time a water rent of sufficient amount in such manner as he deems most equitable upon all tenements and premises supplied with water.”

In his discretion the director has deemed it most equitable to collect by the meter system.

Plaintiff’s argument that it would be better for the city to install and pay for meters goes directly to the question of the discretion vested in the service director.

.Where a discretion is vested in an officer, board or body, a court may not control that discretion by judicial determination, neither can it substitute its judgment for such discretion. Pugh Printing Co. v. Yeatman et al., Deputy State Supervisors of Elections, 22 C. C., 584, and Robinson v. McDonald, 26 O. C., N. S., 137.

The'first and second statements in the petition and the argument of counsel did not include all the regulations of the service director, and if there was a discrimination prior to May 12, 1917, there is no such discrimination now; the conclusion is that the demurrer to the answer was properly overruled on that ground. Also, as neither the petition nor the answer raises the question that the service director has abused the discretion vested in him, and as this court is without authority to control that discretion or substitute its judgment therefor, the demurrer to the answer was properly overruled on that ground.

A decree, therefore, may be entered overruling the demurrer to the answer and assessing the costs in this court against the plaintiff.

Judgment acoordhngly.

S'hohl, P. J., and Hamilton, J., concur.


author: Lieghley, J.

text:
    ACTION TO ESTABLISH A MECHANIC’S LIEN.
    Court of Appeals for Cuyahoga County.
    Parker & Day Marble & Tile Co. v. The East Ohio Gas Co. et al.

    Decided July 2, 1917.

      Mechanics Liens — Action to Establish a Lien and tor Foreclosure — Is an Action at Law and Variable to a Jury, When — Appeal Does Not Lie, When.

    1. When in a suit for establishment of a mechanic’s lien and the foreclosure thereof, brought by a subcontractor against the-owner.of the building, such defendant interpledes the amount due under the contract to the principal contractor w-ho in turn sets up facts tending t'o show breach of the- contract and denies that anything is due plaintiff, the issues joined constitute an action at law and should be determined by the intervention of a jury.
    2. In such a case appeal does not lie from the judgment' of the common pleas court.
    Appeal: Court of Appeals for Cuyahoga county.
    Error: Court of Appeals for Cuyahoga county.

      A. A. <& A. II. Bemis, for plaintiff in error.

      White, Johnson, C,annon <& Neff, for defendants in error.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 9, 1917.

   Lieghley, J.

The parties stood in the same order below.

The two cases a/bove, numbered 1707 and 1767 on the docket, are an error proceeding and an appeal from the same judgment in the court below. The plaintiff, a foreign corporation, filed its petition against the East Ohio Gas Company, alleging that the Traitel Marble Company had a contract for the marble work on the East Ohio Gas building; that said marble company had sublet a portion of the work to plaintiff; that plaintiff had performed all the conditions and requirements to be performed by it under the terms of said contract; and that it had taken all the necessary steps to perfect a lien upon said premises. The petition prayed for an accounting of the amount due, the establishment of the lien, and foreclosure thereof, if necessary.

The defendant, the East Ohio Gas Company, sought leave of court to interplead the amount due under the contract to the Traitel M'arble Company, a foreign corporation, which leave was granted, the said the Traitel Marble Company made a new defendant, and the East Ohio Gas Company discharged.

The Traitel Marble Company did not question in any manner the jurisdiction of the court below under the circumstances, but . answered, denying any liability under said contract to plaintiff, admitting the contract, but setting forth facts which if established tended to show a breach of said contract by plaintiff, and denying that any sum was due to plaintiff under said contract.

The case came on for trial in the court below and evidence was offered tending to establish the mechanic’s lien claimed by plaintiff, and a motion was made by defendant marble company to dismiss the case on the ground that the plaintiff failed to estab ■ lish a lien, which motion was granted and judgment rendered for defendant, with an order that all of the fund be paid to the defendant marble company without the intervention of a jury or the determination of any of the issues upon said contract made in the pleadings. From this judgment error is prosecuted to this court to reverse the same.

We are of the opinion that when the East Ohio G-as Company-paid said fund by leave of court into court, or made the same available by way of interpleader, said fund took the place of the lien, if any. And when the defendant marble company, without in any manner challenging the jurisdiction of the common pleas court, answered joining issue with plaintiff on the averments and claims in respect to said contract, said defendant thereby voluntarily consented to and agreed to a charge in the character of the action and submitted itself to the jurisdictiou of the court below. The court below thereby acquired jurisdiction and retained it for adjudication of the issues made in the pleadings. The court below had jurisdiction of the subject-matter and of the persons. The character of the action by the answer of the defendant became one of interpleader by reason of the nature of the answer. The fund substituted for the claimed lien was subject to the orders of the court. The only-issues remaining upon the face of the pleadings were what and how much if anything was due plaintiff under said contract.

The judgment of the court below, in face of the issues joined, deprived the plaintiff, even though it did fail to establish its lien, of a trial of the issues joined in respect to said contract, and without trial thereof judicially determined that the entire fund belonged to the defendant. If the fund under the control of the court was to be disposed of, it certainly should not be disposed of until the rights of the parties therein were determined. If the trial 'had proceeded with the gas company as the only defendant, then, the plaintiff failing to establish its lien, the court would have been obliged to dismiss the petition for want of jurisdiction to do otherwise and could not have awarded the fund to the marble company. The marble company voluntairly submitting to the jurisdiction, and tendering issue on the contract, thereby altered the situation.

When the case came to trial the issues joined constituted an action at law, and should be determined by the intervention of a jury, unless waived. The parties by their pleadings created and developed the state of the ease when it reached the trial room. Whether or not a case is an action at law or in equity is determinable by the pleadings. Raymond v. T., St. L. & K. C. Rd. Co., 57 Ohio St., 271.

Considering the ease in the light we do, as above stated, that the same was an action at law when it came up for trial, we conclude that no appeal would lie from the judgment entered at that time, and the appeal, being case No. 1707, is therefore dismissed. Pratt, Admr., v. Aetna Life Ins. Co., 5 C. C., 587; Warner v. Jaeger et al, Id., 16; Campbell v. Eames, 8 C. D., 374, and Maginnis v. Schwab, 24 Ohio S't., 336.

In case No. 1767, the judgment of the court below is reversed and remanded for further proceedings, at costs of the defendant in error, the Traitel Marble Company.

Grant and Carpenter, JJ., concur.


author: Buchwalter, J.

text:
    VALIDITY OF A DECLARATION OF TRUST.
    Court of Appeals for Hamilton County.
    Harry G. Lamkin, Executor, v. John F. Robinson, et al.

    Decided, 1922.

      Agreement between Father and Daughter Relating to the Ownership of Securities — Trust Created by such an Agreement not Testamentary, when — Issues Pertaining to the Agreement, Involved m Previous Litigation, become Res Adjudicata — Trust Involved not Testamentary — Conveyance of Rights not Rendered Testamentary —By Postponement of Possession and Enjoyment of some of them until after Death of the Party Making the Conveyance.

    1. Where fraud, undue influence,' lack of knowledge and lack of consideration were issues joined in a court of competent jurisdiction, the decree entered therein was necessarily based upon consideration and determination of those issues, and they are thereafter res adjudicata and cannot be again litigated.
    2. Rights granted by the execution of an instrument are not rendered testamentary by the fact that possession and enjoyment of some of the rights so conveyed are postponed until alter the death of the party granting them.
    3. The court finds that the agreement under consideration was a validly executed trust, complete, definite and precise in its terms, and embodying conditions w'hich can be fully carried out, and that the subject matter concerns property which is subject to contract, all of which precludes and renders untenable the theory that the trust was testamentary.-

       Affirming Lamkin, Executor v. Robinson et al, 23 N. P. (N. S.), 425.

   Buchwalter, J.

These preeeedings in error were brought to reverse a judgment entered in the Superior Court of Cincinnati in an action wherein John Robinson was plaintiff and Harry G. Lamkin, both as executor of Pearl R. Lamkin and individually, and certain corporations were defendants.

The corporations named as defendants are not interested in the cause, except for the purpose of transferring the shares of stock in controversy as the court may order.

John F. Robinson will hereinafter be designated as plaintiff and Harry G-. Lamkin as defendant.

While the action was pending plaintiff died and the cause was revived in the name of his executor.

Defendant was the husband of Pearl R. Lamkin, who was a daughter of plaintiff, and so far as the said shares of stock are concerned was the sole beneficiary under her will.

The shares of stock in the defendant companies, which are the subject matter of this litigation, stand on the books of said companies in the name of Pearl R. Lamkin.

Plaintiff claims the ownership of said stock by reason of a written agreement executed by Pearl R. Lamkin on March 3rd, 1905.

This agreement was executed in five copies, in the presence of witnesses,' one copy being filed with each of the various- defendant companies.

The action was for specific performance of said written agreement, and to compel the defendant companies to accept the surrender of the certificates issued in the name of Pearl R. Lamkin, and to issue new certificates to said plaintiff.

The defendant by answer avers that the contract was executory and without consideration, was the result of undue influence exerted by the father, while said Pearl R. Lamkin was a member of his household, and without any independent advice.

That the gift, to take effect after her death, was testamentary in -character, hence void as not being executed in accordance with ’ the laws governing wills, and, by the way of cross-petition, asks that specific performance be denied, that he ¡be declared the owner of said certificates, subject, however, to the plaintiff’s right to the dividends thereon during his life.

The ownership of the said shares of stock and the dividends thereon, accruing since the death of Pearl R. Lamkin, depend upon the validity of Section 4 of the instrument, executed March 3rd, 1905.

If that section is valid, said shares became the property of plaintiff at the time of the death of Pearl R. Lamkin; if invalid, they passed under her will to the defendant, subject, however, to .plaintiff’s right to the dividends during his life.

The instrument is as follows:

‘ ‘ Whereas, I am the owner of certain stocks, to-wit, five hundred and eight (508) shares of the, capital stock of The United States Playing Card Company, evidenced by Certificate No. — ; “Now eight hundred and three and three-fourths (808§4) shares of the capital stock of the United S'tates Printing Company, evidenced by Certificate No.-: and fifty (50) shares of the'W. B. Oglesby Paper Company evidenced by Certificate No.-; now, this agreement is to show:
‘ ‘ That for and in consideration of one dollar and other good and valuable consideration to me paid, the receipt where of is hereby acknowledged;
“1. The said John F. Robinson is to have and retain possession of said shares of stock for and during the term of his natural life and collect the dividends thereon and apply them to his own use and he shall never be called upon to account for them to me or my executors or administrators.
‘ ‘ 2. He is to vote the said stock at any and all elections of the said companies, respectively; and for this purpose I hereby authorize him, the said John F. Robinson as my true and lawful attorney, with power of substitution and revocation for me and in my name to vote at any and all meeting or meetings of stockholders of said companies with all the powers I should have if personally present.
“3. That with my consent and approval, when in his judgment it is advisable to do so, to sell the said stock and reinvest the proceeds -of sale.
“4. In the event of my dying before he does, leaving no issue of my body, then the said trust shall lapse and the said stock is to revert to him; and to carry out this condition I hereby authorize and empower the said United States Playing Card Company and The United States Printing Company, and The U. B. Oglesby Paper Company, and the respective officers of each to transfer the said shares of. stock so thansferred to me to the said John F. Robinson at his request.
“5. Should I die before my father, leaving issue, his rights hereunder shall continue and at his death the said stock is to become the property of my children or their descendants.
“6. Should my father die before I do then the said stock is to come into my possession again and become fully my property.
“7. This agreement is to be in effect during the life of my said father — subject, of course, to our right to change the terms at any time we may agree to do so.
‘1 In Testimony Whereof, I have hereunto set my hand in quin-triplicate — one copy for myself, one for John F. Robinson, and one for each of the said companies, this third day of March, A. D. 1905.
Pearl R. Lamkin.
“Witnesses:
“R. 0. Belt,
“John F. Robinson.”

The original investment was made by plaintiff who became one of the partners of Russell & Morgan. Later, to-wit, in December, 1883, the partners formed a corporation known as The Russell & Morgan Company. At the time of incorporation, the plaintiff received ninety-nine shares of stock of the par value of $1,000 each in the new company. In 1884 the plaintiff transferred ninety-five (95) shares of this stock to his wife Caroline F. RoN inson, in order to- protect his family in the event of misfortune, with the understanding that she would make a will returning it to him, in case he survived her.

During the years that she held this stock, the plaintiff received and used the dividends in the same manner as he had prior to the transfer.

Caroline F. Robinson died suddenly in 1899, without making a will, leaving her husband, the plaintiff, and four minor children surviving her.

Plaintiff’s brother was appointed administrator of the estate and plaintiff was appointed guardian of his four children. The shares were inventoried and appraised as the property of Caroline F. Robinson. Plaintiff did not claim his one-third interest but received the dividends, used them and all of the children gave receipts in full to him therefor when they became of age. The certificates of stock were transferred to their names at this time, although plaintiff retained the certificates.

The daughters, Caroline and Pearl were then each the holders of 23% shares of stock in The Russell & Morgan Printing Company. In 1894, The United States Printing Company bought out the Russell & Morgan Printing Company and Pearl Robinson received 853% shares of stock in the new company. Later, a part of the business of The United States Printing Company was acquired by The United States Playing Card Company, and 508 shares of the stock of the last named company were issued to her. By subsequent exchange of 50 shares of the stock of The United States Printing Company, she received 50 shares of stock in the W. B. Oglesby Paper Company.

In 1915, The United States Printing Company formed a consolidation with other companies, and in lieu of the 8033/4 shares remaining in The United S'tates Printing Company, there was is-used to Pearl R. Lamkin, under the name of Pearl Robinson 522— 43-100 shares of First Preferred Stock and 281 — 31-100 shares of the Second Preferred stock of The United States Printing & Lithographing Company. The petition alleges 381 31-100 shares of second preferred, and the briefs and decree below also state that number, but from the evidence that is apparntly an error.

Plaintiff continued to take and use the dividends until Caroline, one of the daughters, desired in 1901 to marry one Horace Stevens, contrary to plaintiff’s wish, and she transferred to plaintiff her shares of said stock. In 1903 plaintiff transferred these shares to her name,' at the time when she signed an agreement similar to the one signed by her sister, Pearl, March 3rd, 1905, except that it did not include the Oglesby stock.

On March 1st, 1905, Pearl married the defendant, without her father’s knowledge or consent, and returned home the same day, and her husband returned to Columbus, where he was employed

On March 3rd, 1905", Pearl signed a receipt, acknowledging settlement in full of all accounts between her father and herself and mentioning particularly moneys collected by him as dividends on the said stocks and also signed the instrument hereinbefore set forth; at the same time she executed a will embodying the same provisions.

In 1908 the plaintiff married a second time, and Pearl, after notifying the various companies that she claimed the dividends, brought suit against the plaintiff to set aside the agreement of March 3rd, 1905.

Her sister filed a similar suit and the eases were heard together in the Common Pleas, Circuit and Supreme Courts.

In 1918, Pearl Lamkin died, leaving no children surviving her.

This action was then brought by plaintiff to enforce the agreement above set forth and secure the unconditional ownership of the shares of stock in question.

The only question involved is the validity of Section 4.

One of the errors complained of is that the trial court did not consider any evidence introduced tending to show undue influence, fraud or lack of consideration, on the theory that these matters had been passed upon in the case of Lamkin v. Robinson, 88 O. S., 603, and were, therefore, res adjudicata as to the entire instrument.

After the decision was announced, and before the finding of law and fact, requested by defendant, had been formulated by the court, defendant offered an affidavit and certain exhibits as to the maner in which the new stock was issued by the United States Printing & Lithographing Company and as to the taking up by Pearl Lamkin of certain subscription rights for additional stock in the United States Playing Card Company, and, by motion, asked for leave to file an amendment to his second answer and cross petition, setting up these facts. This motion was overruled.

The new stock issued by The United States Printing & Lithographing Company was a substitution for other stock which by Item 3 of the agreement could be substituted by consent. The original certificate was issued in the name of Pearl Robinson and her consent was necessary to make the exchange. There can be no question but that this stock would be bound by the instrument of March 3rd, 19*0(5, and the answer of defendant practically admits it. Nor do we see how the fact that Pearl Lamkin subscribed to the additional shares of The United Spates Playing Card Company can affect this issue.

She was a stockholder of record; the option to subscribe was given to all stockholders of record. It was not a dividend declared on stock already issued, and, hence plaintiff had no rights therein. He was familiar with the transaction, assisted in carrying it out by acting for her under power of attorney. This was not an abandonment of the agreement of March 3rd, 1905.

These matters as well as other evidence is reference to want of consideration, undue influence, etc. would be material if these issues were not prejudged by the prior decision. If these questions are res adjtidicata, the consideration of this evidence was properly excluded by the trial court.

In the original action of Lamkin v. Robinson, it was prayed that the agreement be set aside. The answer and cross petition asked that it be upheld and enforced.

It is true the opinion of the Circuit Court states:

‘ ‘ It is elamied that Item 4 of the said agreement is testamentary in character and void for absence or inadequacy of consideration. As said Item has nothing to do with the questions in this case, and can have no effect until the death of the plaintiffs, we have deemed it unnecessary to consider the validity of Item 4„ and the decree may so- recite.”

’ But the decree contains the following:

‘‘ The Court finds that the defendant is entitled for the term of his life to the dividends upon the stocks in controversy in this case and set forth in the petition herein, together with the other rights given him by the instrument in writing of March 3, 1905, set forth in the petition, which instrument the Court finds to be valid and subsisting except the right of survivorship provided in Item 4 thereof, which the Court finds U unnecessary to pass upon and does not do so. * * *' Wherefore it is considered, adjudged and decreed that the defendant have and he is hereby awarded the right to draw the dividends on said stock during his Ufe and the other rights specified in said instrument of March 3, 1905, except the right of survivorship, which is not decided as aforesaid. . * * * And that subject to the provisions of said instrument of March 3, 1905, the plaintiff (Pearl R. Lamkin) is the owner of said stock.”

It was the decree and not the opinion of the court which was affirmed by the Supreme Court.

It has been vigorously contended that by that decree the court merely refused to exercise its equitable powers and set aside the contract and therefore left the parties as they were except as to dividends, and that when the dividends were allowed to Robinson, it was because of the long acquiescence by the daughter to this arrangement.

But the issues of lack of consideration, duress, etc., were fully presented, the Common Pleas Court found the instrument void for lack of consideration, and on appeal the Circuit Court dedared it a “valid and subsisting agreement,” and the opinion states:

‘ ‘ These agreements so far as they related to the dividends, did not change the situation of the parties. They simply created in the defendant, as a legal right, that which he had been exercising by the consent and acquiescence of plaintiffs since they became of age-”

It is further claimed that the court held there were various separate agreements embodied in the one instrument, because the Circuit Court mentioned agreements. It must be remembrd that there were two cases presented at the same time, on by Caroline S'tevens, and one by Pearl Lamkin, and the word agreements in the decision evidently refers to the two instruments, one signed by each.

Many cases are cited by counsel for plaintiff in error to the effect that the dismissal of Pearl R. Lamkin’s petition to set aside the contract of March 3rd, 1905, was for want of equity and conferred no rights on Robinson, as the judgment was rendered on his cross petition.

The principal cases relied on being Cramer v. Moore, 36 O. S., 347, and Porter v. Wagner, 36 O. S., 471.

The case of Cramer v. Moore was one in which the plaintiff had no right to maintain the equitable action, and it was dismissed; hence, he was entitled to put the same questions in issue in defense in an action at law. In other words, he was simply left to his remedy at law. The court says at page 349:

“We do not question the principle insisted upon on hehalf of the defendant in error, Moore, that a judgment of a court of competent jurisdiction, upon a question necessarily involved in a suit, is conclusive in a subsequent suit between the same parties, depending on the same question; and in respect to this quality of conclusive effect upon parties and privies, the decrees of courts of equity, upon matters within their jurisdiction, stand upon the same footing with judgments at law.”

In Porter v. Wagner, the court refused equitable relief and left the parties to pursue their legal rights.

These cases were both decided on the principle that if equitable relief is denied, either because there was an adequate remedy at law, or because no case was made out for distinctly equitable relief and the court leaves the parties to their rights at law, there is no estoppel.

The case of Porter v. Wagner and Cramer v. Moore, are both considered and construed as above in Steward v. Ashtabula, 98 Fed. 516 at 519, and Stewart v. Ashtabula, 107 Fed. 857. In the last named ease, Judge Day, at page 863 says:

“In the Cramer case the court puts the decision upon the ground that the former equity proceedings may have been dismissed because of want of equity. The statement of the rule in the Porter case that a judgment is conclusive only as to facts without the proof or admission of which it cannot be rendered, is undoubtedly a correct statement of the law. It is equally true, and a necessary corollary of this proposition, that when facts have been found essential to the determination of the issues, parties are estopped from relitigating the same. ’ ’

The rule has been established since the time of the ease of Rex v. Duchess of Kingston, 20 Howell’s S'tate Trials, 356, that, a judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court.

In Hixon v. Ogg, 53 O. S., 361, the syllabus is:

“Where issue has been joined on a material fact in an action, and the issue judicially determined and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is reversed or set aside. And the fact thus established cannot be retried by the same parties in any subsequent action, whether the second action is upon the same or a different subject-matter from the first. In this respect it is immaterial that one of the actions may have been ex contractu and the other ex delicto.”

In Southern Pacific Bd. Co. v. United States, 168 U. S. 1, Justice Harlan says:

“A right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, cannot be disputed in a subsequent suit between the parties or their privies; and even if the second suit is for a different cause of action the right, question or fact once so determined, must, as between the same parties or their privies, be taken as conclusively established so long as the judgment in the first suit remains unmodified.”

In the case of Pearl R. Lamkin v. Robinson, the action was to set aside the instrument of March 3rd, 1905, to recover possession of the stock and also the dividends collected by said Robinson, and dividends which had accrued subsequent to the bringing of the suit. She alleged fraud, undue influence, lack of knowldge and no consideration. Robinson, by answer and cross petition, denied all the allegations of fraud, undue influence, lack of knowledge and lack of consideration, and prayed for an order adjudging said agreement valid, and directing that he be entitled to possession of the stock during his lifetime, and absolutely if his daughter died before him, without issue.

All matters not admited by the petition were denied in the reply. ; ■ ¡I ;

The Court of Common Pleas by its decree awarded to Pearl R. Lamkin the dividends which had accrued since she revoked her said father’s authority at the time of bringing her suit, and declared the instrument of March 3rd, 1905, was invalid, because executed without consideration, and ordered it set aside and held for naught.

When heard on appeal in the Circuit Court, that court found by its decree that said Robinson was “entitled for the term of his life to the dividends upon the stocks in controversy # # * together with the other rights given him by the instrument in writing of March 3rd, 1905, * * * which instrument the court finds valid and subsisting, except the right of survivorship provided for in Item 4, which the court finds it unnecessary to pass upon and does not do so. ’ ’ This decree, affirmed by the Supreme Court, not only gave Robinson the right to collect and use the dividends, but also the right to keep possession of the stock certificates, to vote said stock, and to act as attorney for Pearl R. Lamkin in reference thereto. As the dividends were in the hands of a trustee pending the litigation, it was necessary for the court to decide to whom they belonged, and the rights of the parties were there determined.

Alleged fraud, undue influence, lack of knowledge and of consideration as to tbe entire instrument were issues raised in tbe case, and were necessarily involved, considered and determined by tbe judgment. These issues can not again be litigated.

The holding of the trial court in the instant case that these matters were res adjudicata was not erroneous.

Item 4 was left open and not determined by the Circuit Court in the prior hearing, and this was probably because there was small likelihood at that time that the contingencies stipulated would happen, to-wit: that Pearl would die before her father, without leaving issue.

The only remaining question of moment to be determined is, whether or not Item 4 is invalid for any reason other than fraud, undue influence, lack of knowledge or consideration.

It is contended that said item is executory and testamentary, and, that, therefore, the stocks would pass to the defendant by will.

The plaintiff claims that when the instrument was signed, an executed trust was established, and, that, therefore, the said item was not testamentary.

The instrument provides that the plaintiff Shall retain the certificates of stock, collect and use the dividends during his lifetime, vote the stock, and act as attorney for Pearl R. Lam kin in reference thereto. Robinson was given dividend rights during his lifetime, with full power to safeguard those rights. At his death, if Pearl R. Lamkin was alive, she was to enjoy the complete ownership, or if her death preceded his and she left issue, they should be the unconditional owners. In the event of Pearl’s death, without issue, Robinson succeeded to all rights of ownership. By this arrangement, all contingencies were provided for, and the instrument is clear, complete and definite.

The court found that Pearl was the legal owner and that the beneficial interest in said stock was held by her father. Also by the decree therein, in holding that all items of the instrument were valid, except the survivorship in Item 4, which was not passed upon, the legal owner had put the physical possession of the stock in the hands of her father. She had declared the trust and notified the defendant companies. She had put it out of her power to change the investments without the consent of the cestui que trust. He also was without power to change the investments, or to sell the securities without her consent, as the certificates had never been endorsed by her.

The specific authority granted by the instrument to plaintiff to act, even after the death of Pearl R. LamMn was passed upon in the prior suit. Therein the agreement was declared valid and subsisting. How, therefore, can this be an executory trust ?

In the Estate of Thomas Smith, deceased, 144 Pa. St. Reports, 428, syllabus 2:

"An executory trust, so called is one in which the limitations are imperfectly declared and the donor’s intention is expressed in such general terms that something not sufficiently declared is required to be done in order to complete and perfect the trust and to give it effect. "When the limitations are fully and perfectly declared, the trust is regarded as executed.”

All limitations are fully and definitely declared. Had this stock been transferred to another person to hold as trustee, and the same provisions made as are incorporated in this instrument, it would not have been invalid. Pearl R. Lamkin held only the naked, legal title, and by her declaration of trust, and she designates it as a trust in said Item 4, she made her act irrevocable, except with the consent of the cestui que trust. She further executed copies of the instrument, which were served on the com' panies issuing the stock, so that her declaration of the trust was made to all interested parties.

An owner may declare Mmself a trustee in the same manner as if he transferred the legal title to a third person with a similar declaration. Estate of Thomas Smith, deceased, supra, Syl. 4.

In the case of Bruer v. Johnson, et al, 64 O. S., 7, it was held that a person may sui juris orally, or in writing, declare that he holds personal property for another, and that such declaration constitutes him a trustee of such property, and also that such a declaration of trust may operate after the death of the declarant.

This was a trust where no consideration was paid. There is nothing in the instrument in question that is executory. An owner may declare a trust and hold the naked, legal title in the same manner as if the title is transferred to a neutral trustee, and in this ease the beneficial interest is separated from the legal title. This principle is referred to in: Jones v. Luplow, 13 Ohio App. 428, (31 O. C. A., 517); Flanders v. Blandy, 45 O. S., 108, 116; Worthington v. Redkey, 86 O. S., 128, Syl; Locke et al v. F. L. & T. Co., 140 N. Y., 135; Martin v. Funk, Admr., 75 N. Y., 134.

The court is of the opinion that this was a valid, executed trust, complete, definite and precise in its terms, all conditions of which can be fully carried out, and the subject matter concerns property which is subject to contract..

Holding the instrument to be a complete, executed and valid declaration of trust, precludes the theory that it is testamentary. It may be well; however, to briefly consider the question of whether or not Item 4 could be considered testamentary in character. If so, it would be an endeavor to transfer personalty after death, without the formal requirements of a will, and would have been revoked by a subsequent will. A will does not take effect until the death of the testator. It may be revoked at any time prior to the death and no rights are acquired thereunder-until after the death of the testator.

Under the instrument herein, rights are given during the lifetime of Pearl R. Lamkin. It is true that some of those rights are to take effect in possession and enjoyment only upon the happening of certain contingencies, that -is, the death of Pearl R. Lamkin, without issue, but the rights given could not be revoked by her alone. The rights were granted at the time of the execution of the instrument, although possession and enjoymnet of some of those rights were postponed until her death. Such an instrument is not testamentary. Disposition of property to take effect at death may be controlled and not be testamentary if a present interest passes, and the disposition made is not revocable. Robb v. Washington and Jefferson College, 185 N. Y., 485; Patrick v. Parrott, 92 O. S., 184; Lewis v. Curmett, 130 Ia. 423; Emery v. Darling, 50 O. S., 160.

It is also contended that the defendant by this trust agreement was deprived of his rights in the stock, and that this was a fraud upon his marital rights. "We do not consider that there was any merit in this contention. Sections 7798 and 7799, General Code; Urner, Guardian v. Yager, 15 W. L. B. 265, affirmed 27 W. L. B. 148.

An examination of the record and a study of the voluminous briefs filed herein does not disclose any error prejudicial to the plaintiff in error.

The decree below refers to 381 31-100 shares of the second preferred stock in the United States Printing & Lithographing Company. This should be corrected to read 281 31-100 shares.

The judgment below, with the above correction, will be affirmed.

Hamilton, P. J. & Cushing J. concur.


author: Hughes, J.; Crow, P. J., and Warden, J.

text:
    APPLICATION OF THE RULE OF LIS PENDENS.
    Court of Appeals for Crawford County.
    Chester A. Meck v. Bertha Clabaugh.
    Decided, April 20, 1922.

      Reason for the Rule of Lis Pendens — Extent to which a Purchaser Pendente Lite is Bound..

    1. The rule as to Us pendens is founded on its necessity to prevent alienation of property in dispute and to give effect to court proceedings, and does not rest on the theory of notice.
    2. A purchaser pendente lite of property involved in litigation, is bound by the decree or judgment rendered in the case pending, and no further, and is not constructively bound by a claim of the party to the pending suit other than that which is consummated in the final judgment.

      Chester A. Mdch, for plaintiff.

      Edward J. Myers, for defendant.
   Hughes, J.; Crow, P. J., and Warden, J.

This is an action in partition before this court on appeal. The facts, as we find them to be, are as follows:

During the year 1917, the defendant, Bertha Clabaugh, and her husband, purchased Lot Number 180Q in the city of Bucyrus, Ohio, taking title jointly for the same and in et|ual moieties. In February of 1921, the defendant filed a petition in the court of common pleas of Crawford county, Ohio, praying for divorce and alimony and custody of children, and for a determination of che property rights between her and her husband.

In this petition she alleged that all of the purchase money, with which this lot was procured, had been furnished by her. During the pendency of this action the plaintiff, without any actual knowledge of the claims made by the defendant in this suit, purchased from her husband, his half interest in this lot and took his warranty deed for the undivided half thereof.

Defendant’s action was thereafter prosecuted to the end that divorce and alimony were denied, there was no adjudication of property rights, and her petition was dismissed at her costs.

From this judgment she prosecuted error to the court of appeals, where the judgment of the court below was affirmed.

In this action for partition the defendant sets forth in her answer, practically the same claim made in her divorce case; that is, that the purchase price of this lot was furnished by her and that her husband had no interest therein, and she seeks to enforce a trust for her benefit against the plaintiff here, on the theory that he was a purchaser pendente lite.

There may be found in decisions and in some language used by text-writers, sufficient to justify this contention. However, we believe this comes from a misconception of the rule, for while Us pendens does operate as notice pending the suit, it is not based upon notice, but is established to prevent the alienation of property which is the subject-matter of litigation.

“The rule, as to the effect of lis pendens, is founded on the necessity of such rule to give effect to the proceeding of a court of justice. Without it, every judgment and decree for specific property might be rendered abortive by successive alienations. This necessity is so obvious that there is no occasion to resort to the presumption of notice of the pendency of the suit, to justify the rule. This principle, however necessary, was harsh in its effects on purchasers, and was confined in its operation to the extent of the policy upon which it was founded; that is, to the giving full effect to the judgment or decree which might be rendered in the suit depending at the time of purchase. As a proof of this, if the suit was not prosecuted with effect, as if a suit at law was discontinued, or a suit in chancery dismissed for want of prosecution, or for any other cause not upon the merits, although the plaintiff might bring a new suit for the same cause, he must make him who purchased during the pendency of the former suit a party; and, in this suit, the purchaser would not be at all affected by the pendency of the former suit at the time of his purchase. If a fob pendens was notice, then it should bind the purchaser, like actual notice in any subsequent suit prosecuted for the same cause; but this it does not. English judges and writers have carelessly called it notice, because, in the one single case of the suit prosecuted to a judgment or decree, it had the same effect upon the interest of a purchaser as notice had, though for a different reason. But the courts have not in any case given it the real effect of notice.” Cherry v. Dickerson, 194 S. W., 690; Bailey v. Ford, 200 S. W., 797.
“The sole object of Us pendens is to keep the subject in controversy within the power of 'the court, until the judgment or decree shall be entered, and thus make it possible to give effect to decrees and judgments of courts of justice.” Cook v. Hendricks, 90 S. E., 383; Glatti v. Bradford, 62 Southern, 643.

Our attention has been called to no case in Ohio which defines the rule with this particularity.

However, our Supreme Court has recognized the rule that the decree of the court binds the property in the hands of the purchaser, although he is not a party and though he purchased with no actual notice of the claim of the party in the suit, and that he is bound by the decree that is eventually entered. Fox v. Rader, 28 O. S., 181; Benton v. Schaffer, 47 O. S., 117; Stewart v. Railway Company, 53 O. S., 151.

It must follow that plaintiff’s title to the undivided one-half of the lot in question here, is not affected by any claim the defendant might have inasmuch as the decree and judgment in her suit prosecuted against her husband, was adverse to her and her petition was dismissed without any relief granted to her.

Partition will therefore be awarded.