text:
    DISREGARD OF A BUILDING RESTRICTION.
    [Circuit Court of Lucas County.]
    Frances A. Brown v. Thomas F. Huber and Roger Huber.
    Decided, March 2, 1907.

      Building Restrictions — Will not be Enforced by Injunction, When— Change in the Character of the Neighborhood — Discretion of the Court — Remedy at Law — Deed—Covenants Running with the Land and Covenants which are Personal — Character of a Building Restriction Covenant.

    Building restrictions in a deed, as to property retained by the grantor, will not be enforced against such property where, after the lapse of several years, the drift of population has so changed the character and surroundings of the property as to make it so inequitable to enforce the covenant as to prevent its improvement in conformity to the new conditions.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    This is a suit in equity to enjoin the construction and maintenance of certain buildings upon property on Ashland avenue in this city. It seems that on the 14th day of October, 1871, what is now known as lot No. 3 was deeded by one Scott to Mrs. Kelley. At that time the title to ]ot No. 2 was in Scott. In the deed to Mrs. Kelley there was a covenant providing for a restriction as to the character of structures thereafter to be placed by Scott, or his heirs, executors and assigns, on lot No. 2. In a subsequent conveyance by Scott to one Wood, of lot No. 2, reference was made by way of recital to the covenant which had been inserted in the deed to Mrs. Kelley, and the deed to Wood was made expressly subject to that covenant. The plaintiff, Mrs. Frances A. Brown, is now the owner of lot No. 3, having succeeded to the title of Mrs. Kelley, and the defendant, Roger Huber, has succeeded to the rights of Wood, the purchaser of lot No. 2. Roger Huber, the owner of lot No. 2 (the other defendant being his agent), has commenced the construction of certain buildings upon the property owned by him, and is about to construct other buildings, in violation, as claimed by Mrs. Brown, of the covenant made with Mrs. Kelley by Scott in the deed of October 14th, 1871.
    Such covenants of restriction as to the character of structures to be placed upon real estate conveyed, and sometimes as to the character of such structures on property retained by the 'grantor, are not very uncommon, and there has been much adjudication as to the rights of parties to enforce such covenants. -While the defendants do not dispute that the one here relied on was inserted in the deed of Scott to Mrs. Kelley, they insist, in the first place, that it was not a covenant running with the land conveyed to Mrs.. Kelley or in any other wise made available to her; but that it was a' covenant personal to Mrs. Kelley. It is claimed, further, by defendants, that the circumstances surrounding this property have so materially changed in the lapse of years as to make it inequitable so to enforce the covenant as to prevent the improving of lot No. 2 in the manner in which the defendants design to improve it.
    I quote the language of the covenant as embodied in the deed of Mr. Scott to Mrs. Kelley:
    “And the said B. T. Scott hereby covenants and agrees for himself, his heirs, assigns, executors and administrators, that neither he, his heirs nor assigns, will at any time erect upon lot 2 of said Scott’s First Addition to the City of Toledo thereon, any building nearer than 60 feet to the southwesterly line of Adams street, and that the only buildings put upon said lot 'shall be a residence and the necessary attachments and that it shall be used for no other purposes than that of a family residence, and shall not cost less than $5,000 for the residence alone. ’ ’
    What was known as a part of Adams street at the date of the deed is now Ashland avenue.
    The reference to this covenant in the subsequent deed of Mr. Scott to Mr. Wood is in this phraseology:’
    “Subject, however, to all the conditions as to location of building, etc., contained in the deed from said Scott to Mary I, Kelley of lot 3 in said addition. And said Scott also hereby makes the same agreement for himself, his heirs, assigns, executors and administrators concerning so much of lot 1 as remains in him after this conveyance, as contained in said last mentioned deed.”
    To be a little more explicit, I should have said that.Scott was the owner also of lot 1 and that a part of that lot, as well as lot 2, was included in the conveyance to Wood. The covenant with Mrs. Kelley does not, in terms, run to any grantee of hers; but it is insisted by counsel for the plaintiff that Mrs. Brown, the present owner of the premises conveyed by Scott to Mrs. Kelley, is entitled to claim under the covenant, because, in the first place, it pertains to the land and was designed for its benefit; and, secondly, the defendant, Roger Huber, prior to his purchase of the property and the making of the improvements now sought to be enjoined, was fully apprised of the covenant in the deed from Scott to Mrs. Kelley and of the claimed rights of Mrs. Brown.
    The view at which we have arrived will not necessitate very much discussion of the question whether the covenant made by Scott either runs with the land or was designed to apply to the land sold by him to Mrs. Kelley. It is insisted by counsel for the defendants that the covenant was made more to gratify Mrs. Kelley — her pleasure and comfort — than that of any person or persons who might subsequently succeed to her rights. Although the covenant does not, in terms, run to her heirs or assigns, it does not differ in that respect from an ordinary covenant of warranty. And perhaps no matter is more thoroughly settled than that the assigns of Mrs. Kelley, under such circumstances, might still bring suit for a breach of warranty. We are disposed, however, to leave this question an open one, as we do not find it necessary to decide it in view of the conclusions at which we have arrived.
    The other point urged in behalf of the defendants is, that the conditions affecting the uses which may properly and profitably be made of these several properties, have so substantially changed since October 4th, 1871, as to make it inequitable now to attempt the enforcement of the covenant, at least to the extent of enjoining the defendants from making the improvements contemplated.
    At this point it is proper that I should pause for a moment to consider the character of the improvements planned by the defendants and in process of construction. There has been no breach of that part of the covenant which restricts Scott and those claiming under him from building within sixty feet of Ashland avenue. There has been no breach, as we clearly find from the evidence, of that part of the covenant restricting Scott or those claiming under him from erecting any building o£ less value than $5,000. The buildings already placed upon the property, by the undisputed evidence, or at least by the very clear weight of the evidence, are each of greater value than $5,000. There was nothing in the covenant prohibiting the erecting of such dwelling as might be placed upon the property-in such position that the rear of the building should be towards the property sold to Mrs. Kelley, and even against the boundary line between lots 2 and 3; that is, between the property sold to Mrs. Kelley and that retained by Scott. The evidence shows that the two buildings which have been erected upon lot 2 are built so as to front a driveway which has been planned so as to extend into the property now owned by Roger Iiuber, and that the rear of the buildings towards the Brown property is some ten or fifteen feet from the line. We are not prepared to say whether or not any substantial damage has been done, or will be done to the Brown property by the erection of those structures in the impairment of the market value — the sale value— of that property. It is claimed by the defendants that the potential renting value of both these properties has been and wall be enhanced by the sort of improvement which they are placing upon this property; indeed, the defendants claim that the property of the Browns’ is enhanced in value rather than depreciated, by the improvements which the defendants are making and have in contemplation. This may still be left as an open question.
    The important question in the case is, whether there has been any substantial change in the drift of the population and the character of the property as to its greater availability and value for use in the manner in which it is proposed to be improved by the defendants, or, whether the character is not so substantially changed. It does not seem to be very much urged by counsel for the plaintiff that there might not be such -a complete change in the condition of the property, or the character of its possible uses, as would prevent the equitable application of the power of a court to enjoin such Use. To illustrate: if the street upon which this property abuts had become a business street, lined with business blocks, and in which the property had acquired a high value for business purposes, it is hardly claimed by counsel for the plaintiff, if we understand his argument aright, that such'a change would not be one affecting the right to insist upon the covenant found in this deed. But it is said that the change in the present instance is not of that character.
    Numerous cases were cited by counsel for the plaintiff, many of which were considered, and I think carefully, by Judge Hull in an opinion rendered by him in a case decided by this court in the year 1900, the case of Bussell v. Harpel, 20 Circuit Court Reports, 127. This was a ease where, by covenant, the grantor sought to restrict the grantee from making a certain improvement upon property conveyed, and, in that respect, is to be distinguished from the ease at bar. Perhaps the conditions in Bussell v. Harpel were rather more favorable to the plaintiff than in the ease at bar, because there could be no question there that the covenant was not a personal one, but ran with the land. I read from the syllabus:
    “The -enforcement of building restrictions in deeds is somewhat a matter of discretion with the courts. If the neighborhood has so changed that a building restriction has become valueless to property owners, equity will not enforce it.”
    On pages 132, 133, 134 and 135, are references in the opinion to cases decided in New York and Philadelphia and also to the pertinent language of Mr. High in his work on Injunctions. Citing the case of Trustees, etc., v. Thatcher, 87 N. Y., 311, Judge Hull says that it discusses quite fully this question of restrictions of this character, and then quotes from the first . paragraph of the syllabus, as follows, page 136:
    “While a court of equity has jurisdiction to enforce the observance of covenants made by an owner ,of lands in a city with an adjoining owner, in consideration of similar reciprocal covenants on the part of the latter, restricting the use of the lands to the purposes of private residences, the exercise of this authority is within its discretion; and where there has been such changes in the character of the neighborhood as to defeat the objects and purposes of the agreement, and to render it inequitable to deprive such .owner of the privilege of conforming his property to that character, such relief will not be granted. ’ ’
    He quotes some language also from the opinion of the judge in the ease, as follows:
    ‘ ‘ It certainly is not the doctrine of courts of equity to enforce, by its peculiar mandate, every contract, in all cases, even where specific execution is found to be its legal intention and effect. It gives or withholds such decree according to its discretion, in view of the circumstances of the case, and the plaintiff’s prayer for relief is not answered, where, under those circumstances, the relief he seeks would be inequitable.”
    Judge Hull cites also Amerman v. Dean, 132 N. Y., 355, and quotes from the syllabus as follows:
    “Where the owner of lands in a city has laid it out into lots, which are sold to different purchasers, each conveyance containing covenants on the part of the grantee running with the land restricting the use thereof to the purposes of a private residence, or prohibiting the erection thereon of certain specified structures, while a court of equity has power to enforce the performance of these covenants, the exercise of this authority is within its discretion, and where there has been such a change in the character of the neighborhood as to defeat the objects and purposes of the covenants and to render it inequitable to deprive a grantee or his successors in title to the privilege of conforming his property to that character, such relief will not be granted, and in lieu thereof damages may be allowed.”

      This case is referred to in the brief of counsel for plaintiff in order, apparently, to suggest that if the plaintiff is not entitled to the relief of injunction, she may be entitled to damages to be awarded by this court, perhaps after reference to a master to ascertain the proper amount. In the case of Trustees Columbia College v. Thatcher, supra, the New York court dismissed the petition for injunction. In the case of Amerman v. Dean, supra, which went up to the Court of Appeals on error, the court below had retained the case for the ascertainment of the amount of damages; finding that there had been such a change in the conditions affecting the property as would justify the refusal of an injunction to prevent the contemplated improvement of the property. I have both these cases before me and have examined them. In the case last cited — Amyrman v. Dean, supra — the petition of the plaintiff prayed for an injunction and for damages. No such prayer is found in the original petition or in the supplemental petition, in the case at bar; although there is, in addition to the prayer for injunction, one for general, equitable relief. Judge Hull quotes from High on • Injunctions, Section 22, as follows:
    “It is said, ‘if it is apparent upon an application for an injunction, that the relief sought is disproportioned to the nature and extent of the injury sustained, or likely to be sustained, the court will decline to interfere.’ And, again, at Sec. 1158, ‘where the character and condition of the adjoining lands,’ with reference to that conveyed, ‘have so changed as to render the restriction in the conveyance inapplicable, according to its true intent and spirit, a court of equity will not interfere by injunction to prevent a breach of the covenant, but will leave the party aggrieved to his remedy at law.’ ”
    The ease of Orne v. Friedenberg et al, 143 Pa. St., 487, is also cited, with this quotation:
    “Plaintiff filed a bill for a mandatory injunction restraining the maintenance of certain structures upon an adjoining lot, in violation of restrictive conditions imposed on conveyance of defendant’s lot in 1825.”

      And, omitting a part of the language which is not entirely pertinent, Judge Hull proceeds:
    "Moreover, there had been such a change of surroundings in the neighborhood, in the character of the improvements, and in the purposes to which they were applied, as might well have been deemed sufficient to justify a chancellor in refusing to restrain the violation of building restrictions such as were complained of.
    "The plaintiff might have brought his action at law, or he might, as he did, file his bill for an injunction. While,' for the reasons given, he was not entitled to an injunction, he may still sue at law and recover damages, if he can show he has sustained any.”
    Judge Hull quotes further from High on Injunctions, Section 1158, a part of his quotation being as follows:
    "Thus, where the vendor has covenanted in the conveyance not to erect or permit the erection of any buildings on his premises in front of those conveyed, the erection of buildings in violation of the terms of the agreement will be enjoined. Where, however, the title of the feoffor, or those deriving their title under him, have so changed the character and condition of the adjoining lands, with reference to that conveyed, as to render the restriction in the conveyance inapplicable according to its true intent and spirit, a court of equity will not interfere by injunction to prevent a breach of the covenant, but will leave the party aggrieved to his remedy at law. ’ ’
    The action taken by this court in the case of Russell v. ILarpel, supra, was the dismissal of the plaintiff’s petition, and no retention of the case for the ascertainment of the amount of claimed damage to the plaintiff.
    Now, as I said a little while ago, there was nothing in this covenant to prohibit any one having title to lot No. 2 from erecting a dwelling-house thereon not fronting on Ashland avenue, but with its rear towards the property of Mrs. Brown. None of the buildings, the construction or maintenance of which is sought to be enjoined, come within the restriction as to the value of such building. There is no violation of the covenant as to the distance of the building which is nearest to Ashland avenue; so that the sole contention of the plaintiff is, substantially, that the defendants are erecting more buildings upon the property than they are entitled to. It is the use of the property farthest removed from Ashland avenue that is sought to be enjoined. There has been no breach of the covenant so far as the first house is concerned, the house nearest to Ashland avenue. The covenant has not been violated, so far as appears, in any respect, unless by the construction of more buildings than one upon the property. We think it sufficiently apparent by the evidence that in the thirty odd years since the deed was made from Scott to Kelley, the conditions for the available use of these properties have substantially changed. True, the property may not have become adaptable at present for business blocks, but we see no distinction in principle between a change from the use of the property for residences only by the families of owners of the properties to that where the property may become very valuable for renting purposes to the occupants of separate domiciles, and a change from the use of property for residence purposes to that for business blocks. The principle is the same, although the extent of the change in the one ease may be greater than in the other. It is a matter of degree rather than of kind, and we think it clearly inequitable to restrain the defendant from that kind of a use of his property, which has become profitable to lots generally in th'e neighborhood by reason of the increase of population, and so deprive the defendant of one of the chief elements of value'in the use of the property which he has bought. True, he may have bought it with a knowledge of the existence of the covenant; and, personally, I am inclined to think that he is held to a constructive knowledge conveyed by the recital in the deed from Scott to Wood; but, notwithstanding that fact, the question remains as to whether the true intent and spirit of this contract is to be subserved by holding the property to what may now be an unprofitable use.
    It is also a proper inquiry whether the plaintiff would derive any such benefit from the enforcement of the covenant as will justify the court in depriving his neighbor of the large benefit which may come from the contemplated use of the property. The plaintiff may or may not have been damaged. The lot of the plaintiff may be more or less valuable by reason of the construction of these buildings by the Iiubers; but there would seem to be no greater difficulty, if the plaintiff has been damaged by the depreciation of his property, in ascertaining the amount of such damage by an action at law, than there is in very many cases where damages are sought and where verdicts are rendered therefor, although the opinions of witnesses may differ as to the exact extent of such damages. I am not holding or indicating that the plaintiff has been damaged in any substantial way, or has not, but I see no reason why we should depart from the principles enunciated in Biossell v. Harpel, supra-, and, entertaining that opinion, following the view of this court which has been undisturbed by any reversal or by any reconsideration of the question and departure from the judgment therein rendered, we are disposed, in the case at bar, to take the same action that was taken by the court in that case." We think that, in view of all the circumstances, the petition of the plaintiff should be dismissed.

      O. S. Bru-mbach, for plaintiff.

      Marshall & Fraser, for defendant.


source: Caselaw Access Project

license: Public Domain

text:
    ASSESSMENTS FOR. STREET IMPROVEMENTS.
    [Circuit Court of Cuyahoga County.]
    William H. Monroe v. The City of Cleveland.
    Decided, March 23, 1907.

      Streets — Assessments for Impi-oving — Law at the Time the Proceeding Began Controls — Assessment in Excess of Statutory Authority— Collection of can not he Enjoined,, Whew.

    1. An assessment for a street improvement must be levied in accordance with the law in force at the time the proceedings having reference to the improvement were begun, and Section 1536-213, as amended, can, therefore, have no application to an assessment which was pending at the time the amendment was enacted.
    2. An abutting property owner whose property has been assessed for a street improvement in excess of the amount authorized by law, who voluntarily pays the first installment before the contract for said improvement is let; who continues to pay all installments as they fall due while ne watches in silence tne letting of the contract and completion of the work, and, who accepts all the benefits flowing therefrom, is estopped from enjoining the collection of the excess installments.
    Henry, J.; Winci-i, J., and Marvin, J., concur.
    This is an appeal from the judgment of the court of common pleas in an action commenced by William IT. Monroe, on behalf, of himself and many others, to enjoin the collection of the illegal balance of street improvement assessments levied by the city of Cleveland upon their property abutting on Woodland Hills avenue. The issue is one of law, to-wit, whether a person against whose property an assessment to pay for a public improvement is levied in excess of the amount authorized by law, can, after •voluntarily paying the first installment thereof, watch in silence the letting of the contract and the completion of the improvement, accept all the benefits thereof, and then enjoin the collection of the excess installments.
    The city maintains that under these circumstances the plaintiff is estopped to maintain his action.
    The controlling facts in the case are substantially as follows: In May, 1903, the council of the city of Cleveland, desiring to pave and improve three several sections of Woodland Hills avenue, passed three declaratory resolutions to that end. In June, 1903, it passed ordinances, providing that the cost of said improvement, less the city’s portion, should be assessed upon the abutting lands according to benefits and in ten annual installments. In July, 1903, a copy thereof was served on each of the abutting owners. In September, 1903, council passed ordinances to proceed with the improvement, to assess the cost thereof in the manner aforesaid at the rate of thirty-three per cent, of the tax value of the land assessed, and to issue bonds in anticipation of the collection of such assessment.
    At this point the proceedings were suspended and nothing more was done until after the amendment of Section 53 of the municipal code (Section 1536-213, Revised Statutes), passed April 21, 1904. Before the amendment, such assessments could not be levied in any five years to an amount ‘ ‘ exceeding thirty-three per cent, of the tax value” of the property subject thereto. After the amendment, the limit was1 raised to “thirty-three and one-third' per cent, of the actual value thereof after improvement is made.”
    After the passage of this amendment, the city council, in May, 1904, passed new ordinances to proceed with said improvement, and thereby repealed the former ordinances and levied the assessments on the new basis. In June, 1904, notice of this assessment was duly published in Cleveland newspapers.
    In July, 1904, no objections having been filed, council confirmed the estimated assessments. In August, 1904, council levied the special assessments accordingly. In December, 1904, plaintiff, and the other property owmers paid, without protest, the first semi-annual installment of said assessments. In May, 1905, the city awarded the contract for the improvement. In June, 1905, the second semi-annual installment of the assessments was paid, and •work on the improvement was begun. In December, 1905, the third semi-annual installment of the assessments was paid and work on the improvement was completed. The total cost of the improvement was $114,388.10, and bonds to the amount of $89,395 have been issued in anticipation of the collection of the assessments to pay therefor.

      In June, 1906, plaintiff commenced this action upon the theory that the rule of assessment obtaining at the time the improvement proceedings were begun could not lawfully be departed from, that the amendment of Section 1536-213, Revised Statutes, could have no application to pending improvement proceedings, and that the installments already paid amounted substantially bo thirty-three per cent, of the tax value of their property, whereas the assessments as actually levied under the new rule were many times that amount.
    In December, 1906, this theory was apparently approved by the Supreme Court of Ohio, when it affirmed, without report, the judgment in a Lucas county case involving that precise question (Toledo v. Marloiu et dl, 8 C. C., — N. S., 121; see 4 Ohio Law Reporter, 440). It being thus conceded that the assessments are excessive, the sole remaining question is whether plaintiff and those whom he represents are estopped to complain thereof. It is not denied that the city had power to make and pay for' the improvement, nor that the abutting property is actually benefited thereby.
    In support of the estoppel the city relies on Tone v. Columbus, 39 O. S., 281. Against the alleged estoppel the plaintiff invokes the rule of Wright v. Thomas, 26 O. S., 346, and Columbus v. Agler, 44 O. S., 485. Paragraph 5 of the syllabus of Tone v. Columbus is as follows:
    “Active participation in causing the improvement to be made will estop the party engaged therein from denying the validity of the assessment; but to create an estoppel from silence merely, it must be shown that the owner had knowledge: 1. That the improvement was being made; 2. That it was intended to assess' the cost thereof, or some part of it, upon his property; 3. That the infirmity or defect in the proceedings existed which he is to be estopped from asserting; and 4. It must appear that some special benefit accrued to his property from such improvement which it is inequitable, under the circumstances, he should enjoy without compensation.”
    In Wright v. Thomas and Columbus v. Agler, supra, it was held that where a person, against whose property an assessment is unlawfully levied to pay for a public improvement, has not been a promoter of the same, though aware that such improvement, beneficial to said property, was being made, such owner may remain silent, until the improvement is completed, without being estopped to enjoin the collection of said assessment or being called upon to do anything until steps are taken to make the asssessment upon said property. Both cases are expressly distinguished from Kellogg v. Ely, 15 O. S., 64, where the making of the improvement involved an actual trespass upon the property assessed.
    In Lewis, Auditor, ele., v. Symmes et al, 61 0. S., 471, paragraph 2 of the syllabus is as follows:
    “The owner of lands within an assessment district defined in an unconstitutional act for the improvement of a public highway, not having promoted the making of the improvement, may enjoin the collection of an assessment to pay for such improvement in a suit for that purpose begun when an attempt is made to enforce the assessment. He is not required to begin such suit at an earlier day, though he may know of the improvement and of the intention to make the assessment. Columbus v. Agler, 44 Ohio St., 485, followed.”
    In the opinion of the court by Shauck, J., at p. 488, speaking of Tone v. Columbus, and Columbios v. Agler, supra, it is said:
    “The relation of these cases is intimate. The later case arose in the Circuit Court of Franklin County where that court, as the successor of the district court, was engaged in determining the validity of assessments for the improvement of High street, pursuant to the mandate of the court in the Tone case, and in the later case it was determined that inasmuch as the public, in making the unauthorized.improvement, was upon a street which it owned and was not a trespasser as to Mrs. Agler, ‘she was not required to do anything until steps were taken to make the assessments upon her property. ’ The application of this doctrine to the cases before us is obvious. If, therefore, Tone v. Columbios would justify the purpose for -which it is cited, it must be regarded as modified by Columbus v. Agler. That it was not intended to give such important effect to a void enactment should be inferred from the fact that the court did not either overrule or modify Wright v. Thomas, 26 Ohio St., 346, whiejh is full authority for the proposition that the doctrine of estoppel can not be invoked in a case of this character.”

      In Cincinnati v. James et al, 55 O. S., 180, the syllabus is as follows:
    “1. When an assessment for a street improvement, whether payable in installments or not, is larger than allowed by law, and sufficient has been paid, though voluntarily, to equal or exceed the amount which could be lawfully assessed, the collection of the remainder of such assessment may be enjoined.

      “2. In such case the action is not to recover payments already made, but to prevent the collection of unpaid illegal installments. ’ ’
    In that case, however, the city, in assessing per foot front certain corner lots of which the 105-foot side, instead of the 35-foot front, abutted on the improvement, had taken the latter instead of the former as the assessable frontage, thereby making the assessment thrice as large as it could lawfully be under the rule of Haviland v. Columbus, 50 Ohio St., 471. The question of estoppel was not raised, as shown in the statement of facts at p. 181:
    “The city claimed that the six payments already made, were voluntary payments, and that the adjustment, under the rule in the Haviland case, should be only as to the unpaid four installments, and to test that question brought this case here on error, seeking to reverse the judgment of the general term. ’ ’
    It is true that this court in Metcalf v. Carter, 19 C. C., 196, held upon the authority of Cincinnati v. James, supra, that:
    “(1). A property owner whose property has been assessed for a street improvement, who, without objection, has known that the assessment was made, and has seen the work going on, and paid three installments of the assessment, is not after -that estopped from instituting a suit for enjoining the collection of further installments of such assessments.”
    But in that ease, for aught that appears, the installments were paid after, and not, as in the present case, before the improvement was made. Indeed the present case is unique in this, that the first installment was voluntarily paid by plaintiff and all whom he represents, before the contract for the improvement was let. And they all continued to pay without protest, until the improvement was completed. They are thus held to a knowledge at that time of all that they now complain of. And we think this circumstance suffices to distinguish the present case from Wright v. Thomas, Columbus v. Agler, and Lewis v. Symmes, supra, and to bring it within the rule of Kellogg v. Ely and Tone v. Columbios. In going forward with the improvement the city relied upon the acquiescence of this plaintiff and those -whom he represents in the assessment as actually made, as shown by their voluntary payment of the first installment, and their continuance of such payments with knowledge that the work was being done to their benefit and in the expectation that they would pay for it in-the manner already determined.
    The philosophy of the doctrine of equitable estoppel is clearly set forth in a manner plainly decisive of this case in Columbus v. Street Railroad Co., 45 Ohio St., 98, 107, where it is said:
    “In equity whenever the rights of other parties have intervened, by reason of a man’s conduct or acquiescence in a state of things, about which he had an election, and his conduct or acquiescence, or even laches, was based on a knowledge of the facts, he will be deemed to have made an effectual election; and he will not be permitted to disturb the state of things, whatever may have been his rights at first. ”e

    The plaintiff’s petition is therefore dismissed.

      William Howell, for plaintiff.

      Newton D. Baker, City Solicitor for the city of Cleveland, and Harry Payer, Assistant City Solicitor for the city of Cleveland, for defendant.


text:
    SUFFICENCY OF AN AFFIDAVIT IN ATTACHMENT.
    Decided, March 9, 1907.
    The American Manufacturing Company v. The National Supply Company.
    [Circuit Court of Lucas County.]

      Attachment — Affidavit for, Sufficient, When — Office of the Affidavit— Essential Elements, Nature of the Claim and Ground of the Attachment Sought — Affidavit may he Aided hy Express Reference to Averments of the Petition — Facts Constituting the Cause of Action Unnecessary — Non-Resident Corporation — Unliquidated Damages Under a Contract.

    1. An affidavit in attachment should contain a statement of the nature of the claim in order to show that the action is one in which an attachment may issue, and a statement of the ground or grounds upon which the attachment is sought.
    2. An affidavit for attachment contains a sufficient statement of the na: ture of the plaintiff’s claim, if in appropriate terms it refers to the petition and on examination the petition discloses such a cause arising on contract as would justify the issue of an attachment.
    Taber & Clapp, for the defendant in error,
    cited Cook v. Engine Works, 19 R., 732; Northern Nat. Bank v. Bolling Mill Co., 2 N. P., 260; Coston y. Paige, 9 Ohio St., 397; Harrison v. King, 9 Ohio St., 388; Creasser v. Young, 31 Ohio St., 57; Ilookspringcr v. Ballenburg, 16 Ohio, 304; Emmitt v. Yeig, 12 Ohio St., 335; Constable v. White, 1 Handy, 45; Hoover v. Haslage, 5 N. P., 90; Simpson v. McCarty, 78 Cal., 175 (20 Pac. Rep. 406) ; Haywood v. McCrory, 33 Ills., 459; Thierman v. Vahle, 32 Ind., 400; Drew v. 'Dequindre, 2 Doug. (Mich.), 93; Klenk v. Schiualm, 19 Wis., Ill; Phelps v. Young, 1 111., 327; Siifel v. Bank, 16 Bull., 398; Halbert v. Armstrong, 14 C. C., 296; Caldwell Y. Spillman, 7 W. L. J., 149; Pennsylvania By. y. Peoples, 31 Ohio St., 537; Landis y. Case, 5 N. P., 366; Conley y. Creighton, 5 Am. Law Rec., 421; Conley v. Creighton, 2 Bull., 4.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    This is a proceeding in error to reverse the judgment .of the court of common pleas of this county. The suit below was by the defendant in error, the National Supply Company, against the plaintiff in error, the American Manufacturing Company, to recover unliquidated damages to the amount of four thousand dollars, upon the breach of a certain contract alleged to have been entered into between the parties. The American Manufacturing Company, being a non-resident, was brought into court by proceedings in attachment, and the only ground of claimed error before us is, that the court below erred in'holding sufficient the affidavit for said attachment.
    ■It is claimed that this affidavit is defective in that it does not with sufficient clearness state the nature of the plaintiff’s claim. In this respect the affidavit says, “That the nature of the plaintiff’s claim in this action is a demand arising upon contract, as is set forth in the petition filed herein.” No attack is made upon the affidavit for any alleged insufficiency in other respects. It is not claimed that it does not sufficiently state a proper ground for the attachment — the non-residence of the defendant corporation — nor that it fails in any of the other averments required by the statute. It is insisted, however, that it does not sufficiently state the nature of the plaintiff’s claim, and that its reference to the allegations of the petition, to reinforce and supply whatever may be lacking in the affidavit, is not permissible.
    An affidavit for an attachment may properly be divided into two essential parts. One is a statement of the nature of the claim, in order to show that it is a case in which an attachment may issue. The other is a statement of the ground of the attachment sought in the particular case. There are numerous grounds for an attachment; one of which is, that the defendant is a foreign corporation — or a non-resident of this state. This affidavit says both that the American Manufacturing Company is a non-resident of the state of Ohio and that it is a foreign corporation. The last clause of Section 5521, stating the grounds of attachment, provides that:
    “An attachment shall not be granted on the ground that the defendant is a foreign corporation or a non-resident of this state, for any claim other than a debt or demand arising upon contract, judgment or decree, or for causing death or a personal injury, by a negligent or wrongful act.”

      Section 5522 provides what are the requisites of the affidavit, as follows:
    “An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing: (1) The nature of the plaintiff’s claim.”
    Then there are certain other matters in regard to the justice of the claim and of the existence of one of the grounds for the attachment as provided in the preceding section. The statute does not provide that there shall be any especial form of stating the nature of the claim. Indeed, it does not say, in terms, that the affidavit shall state the nature of the claim, but it says that the affidavit shall show it — that is, that an affidavit shall be filed showing the nature of the plaintiff’s claim. This affidavit — as has been once before said by this court in another case — is not directed to the court, but is rather for the information of the clerk and to authorize the clerk to issue the process in an attachment proceeding. In a case which I decided while on the common pleas bench (Hoover & Woodward v. Haslage, 5 Nisi Prius Reports, p. 90) I held that:
    “It is unnecessary, in an affidavit for attachment, to allege the facts constituting the cause of action on which the attachment is based. The plaintiff is required to state only the ‘nature of the claim.’ An affidavit which states that the action is ‘upon a.book account for merchandise sold to said defendant, amounting to $471.47,’ is in this respect a substantial compliance with the statute, and sufficient.”
    This ease was affirmed by the circuit court; but, as no special emphasis was laid by the circuit court in its decision of the case upon the question of the sufficiency of the affidavit, in this statement of the nature of the claim, I will make no special reference to it further than to cite it, infra.

    In their bearing upon the questions here involved, some of them close and some remote, I cite the eases of Haslage v. Hoover & Woodward, 16 Circuit Ct., 570; Constable v. White, 1 Handy, 44; tfimpson v. McCarty, 78 Cal., 175 (12 Am. St. Rep., 37); Cope v. Mining & Prospecting Go., 1 Montana, 53; Haywoocl v. McGrory, 33 Ills., 459, in which, on page 462, the court says:
    “The statute does not require the nature of the indebtedness to be described with any degree of particularity. The affidavit states the nature and amount of the indebtedness; and that is all that the law requires to be stated in regard to it.”
    I cite also: Theirman v. Valúe, 32 Ind., 400; Dreiv, Receiver, v. Dequindre, 2 Douglas (Mich.), 93; Klinh v. Schwalm, 19 Wis., Ill; Phelps v. Young, 1 Ills., 327, where the question was raised as to the sufficiency of the affidavit for an attachment, as in the case at bar, and it was held by the court:
    “Under the attachment law of 1827, which requires that the amount and nature of the indebtedness should be specified in the affidavit, it is sufficient to state that the non-resident is justly indebted to the plaintiff! in the sum of $-by his certain instrument in writing signed by him.”
    In the ease at bar, we have an averment as to the justice of the claim — that the plaintiff ought to recover the sum of $4,000, and that the claim is one arising on contract, with the other reference ■ already recited, to the petition for more specific information as to the character of the action. The Illinois court in the case just cited, says:
    “The proceeding must be considered as one against a nonresident debtor, and all the forms of the statute appear to have been complied with, unless the affidavit upon which the attachment was sued out should be defective in not sufficiently specifying the nature of the indebtedness. The statute requires that the plaintiff in the attachment shall specify in his complaint, on oath or affirmation, the amount and nature of the indebtedness of the defendant. The deposition sets out that Phelps is justly indebted unto the plaintiff 'in the sum of fourteen hundred dollars by his certain instrument of writing signed by him’; and the question is thus presented for determination whether this is the description of specification intended by the statute. It would seem at a first examination of the object of the act, that there was not that compliance with its spirit in the specification given, as its framers intended, but when it is recollected that the plaintiff has filed his declaration, in which the entire canse of action is fully set forth, the objection loses its force.”
    The ease of Miller v. Chandler, 29 Louisiana Annual, p. 88, is a ease in which the affidavit for attachment was held to be aided by the averments of the petition. Probably in that case the affidavit was one upon the same sheet, or written with the petition itself, but I fail to see that that makes any substantial difference. The decision of the court was, in this respect, as follows:
    “The petition sets out clearly and distinctly a cause of action ex contractu a debt alleged to be due to plaintiff by defendant, and it charges that defendant is a non-resident. The affidavit is that ‘all the allegations of the foregoing petition are true.’ There can be no question as to the .sufficiency of this affidavit to authorize the order, and to maintain the writ of attachment.”
    It does not seeni to be disputed by counsel for plaintiff in error that if the petition had been sworn to absolutely and the affidavit had then referred to it and made the petition a part of the affidavit, with such reference, that it might be used in aid of the affidavit-to determine the nature of the proceeding; but it is contended that in the case at bar the petition is not sworn to absolutely and that the affidavit does not expressly make the petition a part of it, although it says that the case is one arising on a contract, “as is set forth in the petition filed herein.”
    In the case of Stifel v. Cincinnati Nat’l Bank, 16 Weekly Law Bulletin, 398, the Cincinnati Superior Court, at its general term, in October, 1886, passed upon a case in which reference was made, in an affidavit for attachment, to the petition in the case, and the court held:
    “Averments in the petition in an action may, by express reference, be incorporated in an affidavit for attachment.”
    I will not take time to read the case, which is especially interesting in that it cites a number of authorities bearing more or less closely upon the question, including the ease which I have already cited of Miller v. Chandler, supra, decided by the Supreme Court of Louisiana.

      It is our view that this affidavit, while not quite so specifically-drawn as it might well have been, is still sufficient, if an examination of the petition to which'it refers discloses such a case arising on a contract as would .justify the issue of an attachment against a non-resident debtor. We think that tho petition discloses such a case. It is a case for unliquidated damages, but it is a case arising on a contract.
    In another case which was before me on the common pleas bench, Samuel M. Lmdis v. Cora E. Case, 5 Nisi Prius Rep., 366, I held that:
    “An attachment will lie on the ground that the defendant is a non-resident of the state under R. S. 5521, subs. 1 and 9, and constructive service may be obtained by publication, in an action for special damages for breach of land contract notwithstanding the fact that such damages are unliquidated.”
    I based my opinion very largely upon the case of Pennsylvania Railroad Go. v. Peoples, 31 O. S., 537, which holds:
    “Negligence of a railway company by which a passenger is injured, may be made the basis of an action upon the company’s contract to carry the passenger, or in tort, at the passenger’s election,” and “although the case was clearly one for unliquidated damages, the cause of action was one arising upon contract within the meaning of the attachment statute before referred to.” ’
    The Supreme Court referred to the statute relative to attachments and affidavits therefor.
    Our conclusion is, that this ease is one in which an attachment is authorized; the affidavit discloses the fact that the defendant was a non-resident corporation and the other grounds for an attachment, and that there was brought to the knowledge of the clerk, before the issuing of the order of attachment, the nature of the plaintiff’s claim with sufficient precision to justify the clerk in the issuance of the writ. We think that the court below did not err in overruling the motion to discharge the attachment, and the judgment below will be affirmed.

      Smith & Beckwith, for plaintiff in error.

      Taber & Clapp, for defendant in error.


text:
    AGREEMENT AMONG BENEFICIARIES AS TO INTENTION OF TESTATOR.
    [Circuit Court of Hamilton County.]
    Lawrence Poland et al v. The St. Joseph’s Orphan Asylum Association of Cincinnati.

    Decided, May 18, 1907.

      Wills — Wrong Construction of by the Beneficiaries — Should be Upheld by the Courts, when — Power of an Archbishop, Named as Trustee, to Enter into such an Agreement — Emergency Warranting such Action — Discretionary Power of Trustee.

    1. An archbishop who is named as trustee of a devise has power to enter into an agreement with the other beneficiaries under the will with respect to the construction to be plaped upon its provisions, and he exercises no more than a reasonable discretion in so doing, when confronted by the emergency of an impending contest of the will, and delay on his part in acting or a refusal to act might result in irreparable loss to the cestui que trustent.

    2. Such an agreement when entered into in good faith by all the parties interested in the disposition of the estate will be upheld by the court, notwithstanding the construction which was adopted was not the construction which the court would have placed on the will.
    Smith, J.; Giffen, J., and Swing, J., concur.
    Upon consideration of this ease to ascertain the construction of the will of Gregory Rossiter, and particularly the two clauses 5 and 6 of said will, the court is of the opinion that the intention of the testator was to give:
    1st. To Mary L. Rossiter a life estate in his real estate, and also his personal estate for life; and
    2d. The remainder in all of his estate, including the fee in the real estate, and all of his personal property, after paying certain specific bequests therein set forth, to Archbishop Elder and his successors in trust for St. Joseph’s Orphan Asylum of this city.

      We reach this conclusion by reason of the fact that all the items in a will must be construed together, if possible,, so as to have each take effect, and in placing this construction ■ upon the clauses full force and effect is given to each clause in the will under consideration. Smith v. Bell, 6 Peters, 68; Robins v. Smith, Jr., 72 O. S., 1, and cases cited.
    It appears, however, that soon after the death of Gregory Rossiter, Mary L. Rossiter, his sister and legatee under the will, and Archbishop Elder, as trustee for St. Joseph’s Orphan ■Asylum, made an agreement with regard to their construction of the will, as follows:
    “Whereas, the last will and testament of Gregory Rossiter, deceased, was duly probated on June 26th, 1899, Case No. 48064, Hamilton County, Ohio, Probate Court; and,
    “Whereas, some doubt or question may exist or hereafter arise as to the true meaning or construction to be given to items 5 and 6 of said will as to the leghl disposition of the personal property of said decedent; and,
    “Whereas, it is manifest to our minds that the decedent in referring to personal property in said item 6 intended thereby to mean and refer to personal property growing out of the investment of the proceeds ainsing from the sale of real estate, if any should be sold by Mary L. Rossiter, and to no other personal property or intended to refer to leasehold property as personal property.
    “Now, therefore, know all men that we, the undersigned, Mary L. Rossiter, sister of said decedent, and Most Rev. William Henry Elder, Catholic Archbishop of Cincinnati, Ohio, a beneficiary trustee under said will, for and in consideration of the avoidance of litigation, and in consideration of mutual concessions tending thereto, hereby agree for ourselves and those who may come after us, that the real and true construction and meaning to be given to said items 5 and 6, and to all of said will shall be given as follows:
    “First. Mary L. Rossiter shall have the use of, and the income of all the real estate of the decedent during her lifetime, and such other power over the same as the will provides.
    “Second. That said Mary L. Rossiter shall have all the personal property ,of the decedent, including cash in hand, stocks, bonds arid credits, and other personal property absolutely as her own.
    “Third. That at the death of said Mary L. Rossiter the real estate of the decedent shall pass to, and vest absolutely in, the Most Rev. William ITenry Elder, Archbishop, as aforesaid, or his successor in office, in trust, nevertheless, for 'the uses and purposes set forth in said will.
    “Fourth. That after the death of said Mary L. Rossiter any personal property, the proceeds from the sale of real estate of the decedent, made by said Mary L. Rossiter under authority of the will, -or any real estate or securities in which such proceeds shall be invested, shall pass to and vest absolutely in said Most Rev. William Henry Elder, Archbishop, as aforesaid, or his successor in office, in trust, nevertheless, for the uses and purposes set forth in said will.
    “In witness whereof, we have hereunto set our hands in duplicate, this 30th day of June, 1899.
    “Mary L. Rossiter.
    “William Henry Elder, *

      “Catholic Archbishop of Cincmnaii.”

    By this paper the two parties mentioned agreed that the true construction of items 5 and 6 gave Mary L. Rossiter the personal estate absolutely, and a life estate in the real estate, with remainder to the Archbishop in trust. While this construction is opposed to what we think is the true construction of the will, yet, if the Archbishop had power to enter into such an agreement, the court will enforce the writing as construed by the parties interested and affected thereby. Where parties meet together to make a settlement and place a construction upon the language used in a will, and agree as to the intention of the testator, and the meaning of the language, such construction will be upheld. Pate v. French, 122 Ind., 10; Follmer’s Appeal, 37 Penn. St., 121; 30 Am. & Eng. Ency., 673, and cases cited.
    But it is claimed by the defendant that, Archbishop Elder, as trustee for St. Joseph’s Orphan Asylum, was without power to enter into such a settlement and agreement of construction of the will in question. The will itself does not give the trustee the discretion under which he acted, but under the evidence in this case, the court is of the opinion that the rule of few allowing trustees under certain circumstances to exercise the discretionary powers of an absolute owner is applicable to this case, and that the trustee had such power. Exigencies arose which demanded'his immediate action, and it is evident, that it was for the interest of the beneficiary that he should h.ave exercised the reasonable discretionary power he had in the emergencies existing at the time the agreement was made. When the circumstances are such as to require immediate or prompt action on the part of the trustee, and it appears1 that he acts in good faith, and to the best of his judgment, he will be sustained by the court; and in an emergency which involves a delay that might be attended with injury or loss to the estate, the trustee will be upheld in the timely and wise exercise of discretionary power. Perry on Trusts, Yol. 2, Section 476; Beech on Trusts and Trustees, Yol. 2, p. 992, and cases cited.
    The Archbishop had full power as the sole trustee under the lay^ to enter into such an agreement. He was not alienating church property. He acted in good faith. The agreement was entered into at a time when he and Mrs. Rossiter believed that an attempt might be made to break the will, and thereby in case the will was set aside, he would lose all his interest in the estate. At least he believed that such a suit, if brought, might materially lessen the interests of his beneficiary.
    In making this agreement, the court feels that he acted in the greatest good faith and exercised that careful and wise judgment which is upheld by the law in such cases, and although the construction placed upon the will by the parties to the agreement is not, in the opinion of the court, the true construction, yet, the Archbishop having power to enter into said agreement, and benefits having accrued to his beneficiary, where perhaps otherwise great loss would have accrued, the court will enforce the construction placed upon the will by the parties, and a decree may be taken in accordance herewith.

      O. J. Cosgrove, for plaintiff.

      J. Ledyard Lincoln and Denis F. Cash, for the Archbishop and St. Joseph’s Orphan Asylum.

       Affirming Poland v. St. Joseph's Orphan Asylum, 4 O. L. R., 337,


text:
    ALLOWANCE TO A WIFE WHERE DIVORCE HAS BEEN GRANTED ON HER. AGGRESSION.
    [Circuit Court of Cuyahoga County.]
    Charles Kelso v. Emma F. Lovejoy et al.

    Decided, November 10, 1905.

      Divorce and Alimony — Allowance to Wife as Alimony — Distinguished from an Allowance Under Section 5700 — Attachment—Will Lie for Recovery of Allowance in the Latter Case, When.

    1. Where a divorce is decreed for the aggression of the wife, and the court has, under Section 5700, adjudged to her such share of her husband’s estate as seemed reasonable, the allowance stands upon an entirely different footing from one made in a case where the divorce is granted on the husband’s aggression; and the character of the allowance in the former ease is not changed by the fact that in the decree it is designated as “alimony.”
    2. Where an allowance to a wife, made under the provisions of Section 5700, has not been paid a creditor of the wife may garnishee the husband and subject the money due on this allowance to the payment of his claim in the same way such creditor could garnishee any other debtor of the wife.
    Marvin, J.; Henry, J., and Winch, J., concur.
    Error to the court of common pleás.
    The only thing here to be determined is whether certain money which, under an order of the court of common pleas, one Clarence H. Lovejoy was required to pay to said Emma F. Lovejoy and which has not been paid, can be reached by attachment and garnishee, by a creditor of said Emma.
    Proper grounds for the issuing of the attachment are shown in the affidavit. Is there a fund liable to be attached? The order requiring the payment to be made by Clarence to Emma was entered in an action in which Clarence sued Emma for divorce, and was successful. The decree of divorce, as far as it need here be noticed, reads:
    “The court further finds that the defendant” (Emma F. Love-joy) “has been guilty of willful absence from said plaintiff” (Clarence D. Lovejoy) “for three (3) years prior to the filing of his petition herein and by reason thereof the plaintiff is entitled to a divorce as prayed for. It is therefore adjudged and decreed that the marriage contract heretofore existing between the parties be and the same is hereby dissolved and both parties are released therefrom. The defendant is hereby allowed as reasonable alimony the sum of five hundred and sixty dollars ($560), payable in monthly installments of twenty dollars, on the 10th of each month hereafter, and said plaintiff is ordered and adjudged to pay to said defendant the said sum of $560 in monthly installments of $20 on the 10th of each month, said payment to be made to the clerk of this court for said defendant.” .
    It will be noticed that, though the money here ordered to be paid is spoken of in the order as “alimony,” it is not made under the statute authorizing the court to allow alimony to the wife. That statute is, Section 5699, Revised Statutes, and provides for alimony to wife only in cases where the wife is granted a divorce by reason of the aggression of the husband.
    In cases where the husband is granted a divorce by reason of the aggression of the wife, the court is authorized to grant alimony to the husband in a proper case, but not to grant alimony to the wife (Section 5700, Revised Statutes). The provisions in such a case as to the property rights of the wife are that she shall be barred of all rights of dower; that she shall be restored to all of her lands, tenements and hereditaments not allowed to her husband as alimony, subject to his right of dower therein, “and the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just and reasonable. ’ ’
    The reading of these two sections make it very clear that the allowance made to the wife, in case she secures a divorce from her husband, stands upon a very different footing from that upon which the allowance to her stands when he is granted a divorce on account of her aggression. In the former case, every consideration of good morals and common justice require that he should contribute to the support of his wife and not be relieved of that duty because he has so conducted himself that he is no longer,worthy to be her husband, and reasons for holding such allowance should not be diverted from that purpose may be very strong, which do not exist at all where, by reason of her wrongdoing, she is unfit to be his wife, and the court has awarded her a reasonable share of his property. The fact that what was allowed to Mrs. Lovejoy here is called “alimony” in the order can not affect the question of what the court had authority to do. That authority was to “adjudge to her such share of her husband’s property as it deemed reasonable. ’ ’ That having been so adjudged to her became her property and subject to be applied to the payment of her debts, as any other property belonging to her would be.
    . The authorities cited as to the nature of a claim for alimony which has been decreed, but not paid, are not applicable to a case like the one under consideration.
    In the case of Hassaureh v. Markbreit, Admr.} 68 O. S., 554, Judge Shauck says, in the opinion on page 579:
    “Nor need we consider the natuye of the obligations upon which decrees for alimonies are founded, since the finding of the court, upon the evidence that the wife had been willfully absent for more than three years, and its judgment that the marriage relation should be terminated for that reason excluded her right to alimony. The court having concluded that a divorce should be decreed for her aggression, its further jurisdiction was defined by Section 5700.”
    The court below erred in its holding that this attachment should be discharged, and for that reason the judgment is reversed.

      Klein & Harris, for plaintiff in error.

      Ilcrrich c6 Hopkins, for defendant in error.

       Affirmed by the Supreme Court without report, April 30, 1907.


author: Per Curiam.

text:
    CONSTRUCTION OF WILL.
    [Circuit Court of Hamilton County.]
    Theodore M. Harding, Trustee under the Will of Theodore Marsh, v. Sarah D. Marsh et al.

    Decided, June 19, 1906.

      Will — Construction of — Where there was a Provision for a Life Estate— Then Estates in Fee Tail — Then Estates in Fee.

    Under the will of M his estate passed to his wife for life, then to his sisters in fee tail, and then to their issue in fee simple; or in the absence of issue of any sister, her share to pass to the surviving sisters or sister in fee simple.
    The action was brought in the court of common picas by Theodore Harding, trustee under the will of Theodore Marsh, to construe the will. The issue was as to whether Flora C. Knight, a granddaughter of one of the sisters of the testator, had any interest in the estate. The grandmother was a sister of the testator, and died subsequent to his death, but prior to the death of his widow to whom a life estate was given. This sister left a son, who died testate bequeathing his property to Flora C. Knight, his' only child. The fourth and lifth items of the will are subjoined:
    “Fourth. It is my will that at the death of my said wife, Rachel Marsh, and at the termination of the life estate herein created, all of my said estate shall become the property and vest in my sisters, Margaret A. Knight and Sarah I). Marsh, of Hartwell, Hamilton county, Ohio, and Mary G. Harding, now residing in Canon City, Colorado, and the heirs of their bodies forever: And in the event of the death of any of my sisters, wdthout issue, the share to which said sister would be entitled, shall be divided or distributed among my remaining sisters, or in the death of both to my remaining sister, or in the death of all- to the heir or heir of such sister or sisters as his or their mother would have .taken if alive, subject, however, to the conditions and provisions of the trust herein created, namely:

      “That immediately after the decease of my said wife, Rachel Marsh, and the termination of said life estate as herein provided, for a period of ten jrears, all the income arising from my estate, real or personal, of whatever nature and description shall be collected by my nephew, Theodore M. Harding, now residing in Canon City, Colorado, .whom I appoint as a special trustee for that purpose and the trust herein created — and shall be expended and distributed by him as follows:

      “{a) That one-half of all such gross income arising from my estate for a period of ten years'after the death of my said wife, Rachel Marsh, shall be held by the said Theodore M. Harding, or his successor, as a fund in trust for the erection and construction of a good substantial business block on the southeast corner of Sixth street, and Central avenue in the city of Cincinnati, 0., to be known and designated as the “Marsh Block,” in commemoration of my father, John Marsh, and said trustee, or his successor, is hereby authorized and directed to superintend the erection and construction of said building or block; and in order to increase the trust fund for that purpose the said trustee, or his successor, is hereby directed to invest such portion of my income from time to time as his judgment may direct in securities of the United States, the state of Ohio, or the city of Cincinnati. ''
    “ (Z>) That my said trustee, or his successor, is hereby authorized and directed after the payment of all taxes, assessments and repairs from one-half of the gross income arising from my estate for said period of ten years after the death of my wife, Rachel Marsh, and the termination of the life estate herein created, to pay the residue of such one-half of the gross income for the period aforesaid in semi-annual payments, to my said sisters, Margaret A. Knight, Sarah D. Marsh and Mary C. Harding, or their legal heirs according to the former provision of this section as to the distribution of my estate, and chat my said trustee, or his successor, account annually to the Probate Court for Hamilton County, Ohio, for all ‘moneys so collected, invested and expended by him as trustee aforesaid, and that his compensation in the premises be fixed by said court.
    “Fifth. It is my will that at the expiration of the said period of ten years after the death of my wife, Rachel Marsh, the said trustee, or his successor, shall make distribution of all of the personal property’ belonging to my estate among my said sisters, Margaret A. Knight, Sarah D. Marsh and Mary C. Harding, or their legal representatives as heretofore provided in this will as to distribution of my estate, and that partition of all of. my real estate be had as soon thereafter as practicable, under the statutes of Ohio, among the said Margaret A. Knight, Sarah D. Marsh and Mary C. ITarding, or their legal heirs, according to their respective interests.”

      Samuel B. 1-IammA and Wm. Worthington, for plaintiff.

      John B. Sayier and Lawrence Maxwell, contra.

       Affirmed by the Supreme Court without report, May 14, 1907.

   Per Curiam.

By the fourth item of the will of Theodore Marsh we think he disposes of his estate in the following manner:

All of his estate went to his sisters as an estate in fee tail; upon the death of either leaving issue, said issue came into the enjoyment of said estate in fee simple. Upon the death of either sister leaving no issue, such share passed in fee simple to the surviving sister or sisters in fee simple.

Upon the death of Margaret A. Knight, her one-third share became an estate in fee simple in her only issue, Benjamin Knight, and upon his death his share would vest in his daughter, Flora Cornelia Knight, if he had died intestate; but Benjamin Knight having died testate his estate passed by his will. Upon the death of Sarah D. Marsh, her share, which she held in fee tail, vested under this item in her sister, Mary C. Harding, in fee simple.

Under the fifth item of his will his personal property is to bo distributed in the same manner as his real estate is given under the fourth item.

A decree should be entered in this court along the same lines as that entered in the court of common pleas.


text:
    PAWNBROKERS’ LICENSES.
    [Circuit Court of Lucas County.]
    Isaac Kopelman v. City of Toledo.
    Decided, March 27, 1907.

      Municipal Corporations — License Fees — Power of Municipality to Recover — Duration of Pawnbroker’s License — Debt for, Incurred without Applying for a License, When — Sections 4388 and 1536-100.
    1. The year covered by a pawnbroker’s license begins when the application for the license is made and the fee paid and runs until the corresponding day of the following year.
    2. A debt to the municipality is incurred, for a license fee required ’by ordinance to be paid, by carrying on the business for which such license fee is imposed; and this is so though the ordinance may prescribe penalties for the carrying on of the business without a license, and though no license has been applied for or issued.
    There was cited for the city as to the power of municipality to recover license fees: City ordinances (Toledo) pages 369; Cincinnati v. Beauhausen, 22 Bull., 421; State v. Hibbard, 3 Ohio, 6.3; State v.Gazlay, 5 Ohio, 14; Dillon, Mun. Corp. (4th Ed.), Section 818; Cooley, Taxation (3d Ed.), 836; Philadelphia v. Telephone Co., 109 Fed. Rep., 55; Templeton v. Tekamah, 49 N. W. Rep., 373; State v. Green, 42 N. W. Rep., 913; New York {Mayor) v. Railway, 23 N. E. Rep., 550; State v. Bank, 84 Temi., Ill; New Castle v. Electric Co., 16 Pa. Co. Ct. Rep., 663; Mendocino Co. v. Bank, 24 Pac. Rep., 1002; Johnson v. Armour, 12 So. Rep., 842.
    Parker, J.; Haynes, J., and Wtldman, J., concur.
    Error to Lucas Common Pleas Court.
    On August 28, 1906, the city of Toledo brought an action against Isaac Kopelman to recover from him $100, which the city claimed was due from him as a debt to the city on account of his having carried on the business of pawnbroker in the city frorq March 1, 1905, until March 1, 1906. Kopelman denied that he was indebted to the city on this account, and plead specially that on July 5, 1904, he paid a license fee of $100 to the city, whereupon a license was issued to Mm by tbe mayor of the city, licensing him as a pawnbroker. For how long a period this license was to run is not stated in the answer and is not made apparent by the record. Assuming that under the law it. would necessarily run for a year, it would not expire until July 5, 1905, and the result would be that for part of the time that the city charges that Kopelman was carrying on the business of a pawnbroker, on account of which he owes the city $100, he was duly licensed and had paid the license fee.
    It appears that on October 2, 1893, the city of Toledo passed an ordinance providing for the licensing of pawnbrokers and other lines of business, and it was therein provided that the annual fee for carrying on the business of a pawnbroker should be $100, and that the fee should cover the year from the first day of March of any year until the next succeeding first day of March. And the ordinance provided penalties in the form of fines to be imposed upon those who should carry on business without paying the fee and procuring a license.
    This ordinance appears to have been passed under authority of a special act passed on behalf of the city of Toledo, appearing in 90 O. L., 335. I believe that would bring the date of the act some time in 1892. It appears in the revision of 1897 of Bates’ Annotated Ohio Statutes as Sections 2672-113 to 2672-11.7. By the new municipal code, as first passed in 1902, these sections were repealed, so that the foundation and support of the ordinance appears to have been taken away. It may be remarked that perhaps it never had very much foundation or support, because the statute was clearly of a general nature though special and limited in territorial scope, so that it was unconstitutional. But whatever there was of it was taken away by the new municipal code.
    In Sections 1692 and 1692-1 of the code as they existed prior to 1902 (Section 1536-100, Revised Statutes), defining the powers of the municipalities, there was no provision for licensing pawnbrokers ; and we can find in the law as it then existed no authority therefor to the municipality other than the special act to which I have just referred, unless it may be found in Section 4388, Revised Statutes, which either gives or recognizes authority to pass an ordinance fixing the amount of the fee for a pawnbroker’s license. That section is found in chapter 13, title 5, on the subject of pawnbrokers. It reads;
    “The mayor of any municipal corporation may grant a pawnbroker’s license to any person of good moral character who may apply therefor, when the applicant pays into the treasury of the corporation a sum to be fixed by ordinance, not to exceed two hundred dollars per annum, and executes a bond, with surety, to the satisfaction of the mayor, to the municipal corporation, in the sum of five hundred dollars, that the applicant will conform to the requirements of the law and ordinance of the corporation.”
    So the amount may be fixed by ordinance of the corporation (if that is a statute conferring authority), and the bond may be executed requiring the applicant to conform to the requirements of an ordinance of the corporation, but, of course, the ordinance of the corporation should not contain provisions beyond those expressly authorized by law.
    By the new municipal code, as passed in 1902, no authority was conferred upon municipalities to license pawnbrokers or to in any way regulate their business, or to legislate upon the subject; but an amendment of Section 7 of that code, passed April 20, 1904 (97 O. L., 509; Section 1536-100, Revised Statutes), it is provided that all municipal corporations shall have the power to regulate and license pawnbrokers, and other lines of business-mentioned in the statute.
    This ordinance was not passed in pursuance of that' statute. The ordinance was passed a long time before the statute was enacted. It may be very questionable whether the ordinance, having once failed of support by reason of the statute authorizing it having been repealed, can afterward be revived and supported by the enactment of a new statute which would seem to authorize such municipal legislation; but we do not feel called upon to discuss that question.
    We decide this case upon the assumption that there was no authority for this ordinance in the year for which the city sires other than that found in Section 4388, Revised Statutes, and that, therefore, all of the provisions of this ordinance must fail, must be held to be invalid and without support excepting the provision that the amount of the license fee shall be $100. And we decide the ease upon the assumption that the license which was issued to Mr. Kopelman on July 5, 1904, was issued for a year, under and in pursuance of Section 4388, Revised Statutes, or that, at least, it would protect him for a year — the $100 — it would pay his license fee for one year from that date. But even upon that assumption, we think that the judgment of the court of common pleas, which was in favor of the city, should be sustained, for it is admitted in the record that Mr. Kopelman carried on this business the whole of the year running from March 1, 1905, to March 1,1906. Therefore, it is admitted that he carried on this business between July 5,1905, and March 1,1906. Certainly his privilege, by reason of his having paid the license fee, did not extend beyond July 5, 1905, and the moment he began carrying on the business after that period without a new license fee for another period of one year having been paid, be became liable to the city for such license fee. And we assume that the true construction of this statute is, that it would be a license fee for another year, for there is no provision for licensing for a shorter period. Mr. Kopelman, then, carried on business after July 5, 1905, after his former license had expired, and he became indebted to the city for another year, and the privilege was with him either to continue the business for a full year or to discontinue it. In either event, his indebtedness would be for the whole fee of $100.
    This action was not brought until some time in August, 1906, so that at that time the year had expired, whether we count from March 1, 1905, or from July 5, 1905; and it is our judgment that the city would not be called upon to wait until the year had expired but could begin the action as soon as the year had begun; that the debt would then accrue and be due and payable. If it should be-made to appear in any case that the city was endeavoring to recover for a period between the first day of March of any year and the fifth day of July covered by a fee already paid — a thing that does not distinctly appear here, or does not necessarily follow here — then we would be brought to a position where we would be bound to meet and decide the question of whether it was competent for the city to provide that the year for license privileges, upon payment of these license fees, should begin upon any certain day of the calendar year, as it has here provided. We do not think that question is necessarily involved here, and yet we express the opinion that at this period it was not competent for the council so to provide, but that, under Section 4388, Revised Statutes, the year began when the application for the license was made and the fee paid, when the license issued, and that the year would run until the corresponding day of the following year.
    The question has been raised and discussed as to whether the city can recover at all by a civil action in a ease where it is provided that a license shall issue upon the payment of a certain fee therefor, where it also appears that the license was not applied for and was not issued and the fee was not paid; it being urged on behalf of plaintiff in error that in such case the city is remitted to its right to prosecute, for the penalty, and, upon the hearing of the ease, some of us, at least, were inclined to that view. It seemed to us that the payment of a license fee is for the purpose of procuring a privilege in the exercise of which a party should be protected or immune from punishment while doing the thing which he is licensed to do; that if the privilege is accorded and the immunity from punishment afforded the debt may be' said to have been thereby incurred, but unless the privilege is accorded and the immunity afforded it seemed to us then somewhat difficult to discover how or upon what principle it could be said that the party owed for the privilege. In case of a mere tax on a business, there is no privilege or immunity conferred.
    We find the case of Stevenson v. Hunter, 2 N. P., 300, decided by Judge Pugsley and affirmed by this court. I am not sure whether it went any further. That was an action under the Dow law to recover a tax from a party who had carried on business in a township where, under the township local option law, the business was prohibited, and the law as laid down in that case is very well stated in the syllabus as follows:
    “An assessment can be lawfully made under the ‘'Dow law’ upon the business of trafficking in intoxicating liquors in a township which has voted against the sale of intoxicating liquors under the ‘township local option act’ of March 3, 1888,”

      It seemed to us when we affirmed the decision of Judge Pugsley, and it seems to us now, that this' reasoning is unanswerable, and is well supported by authority. But we were inclined, as I say, upon the hearing of this ease, to distinguish between a tax and a license or a fee required to procure a license. The license is one thing and the revenue derived therefrom is another thing, often called a tax. It is generally held that where the amount exacted exceeds the expense of issuing the license and the purpose is a revenue, it is a tax. And yet it seemed to us that where the tax is.imposed in order to procure the privilege and it would be unlawful to carry on the business until the privilege had been thus secured, there might be a distinction 'between a license and a tax, but upon looking into the authorities we find that the view to which we were inclined is not supported, but that it is held generally and without any exception, so far as we have been able to discover, that a debt for a license fee is incurred though the license is not applied for and is not issued, and, though there may be penalties for carrying on the business without a license, the city may recover for the amount of the license fee as a debt owing to the city, if the business is carried on.
    Among the authorities we have examined are: Cincinnati v. Beauhausen, 22 Bull., 421; Philadelphia v. Telephone Go., 109 Fed Rep., 55; Templeton v. Tekamah, 32 Neb., 542; Stale v. Green, 27 Neb., 64; New York v. Railway, 118 N. Y., 389, 390; Slate v.' Bank, 84 Tenn., Ill ; Lexington v. Wilson, 118 Ky„ 221.
    The judgment of the court' of common pleas in this case will be affirmed, and in the ease of Smith v. City, a case of like character where there are no complications about a license fee having been paid or a license issued, it seems entirely clear that the judgment should be affirmed, and it is affirmed.

      Denman & Crane, for plaintiff in error.

      C. S. Norihup, City Solicitor, and G. N. Pell, for defendant in error.


text:
    FAULTY MINUTES OF OFFICIAL ACTION.
    [Circuit Court of Cuyahoga County.]
    J. Sherman Beck v. The Board of Education of Rocky River Village School District.

    Decided, November 10, 1905.

      Schools — Contract for Re-employment of Principal — Breach of — Suit Thereon — Recital of Minutes of Board — Correction Thereof by Cleric After Going Out of Office — What Constitutes Compliance With Section 3982.
    1. A clerk of a board of education can not by his own act, after the expiration of his term, lawfully correct his official entries in public records.
    2. The legal adoption of a resolution by a board of education can only be shown by the entry upon the minutes of the names of the members of the board voting “aye” and the names of the members voting “nay,” as required by Section 3982, Revised Statutes. A statement in the minutes of the board that all the members were present at roll-call, and later on that all voted “aye” on a given question, is not a compliance with this statute.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to the Court of Common Pleas.
    This proceeding in error is prosecuted by the plaintiff below to reverse a judgment rendered against him upon demurrer sustained to his amended petition, wherein he prayed damages for breach of an alleged contract, of May 4, 1903, to re-employ him as superintendent of schools for the following school year'.
    The petition avers that the minutes of the meeting of the board of education held on said date showed that all the members were present,. when the meeting was convened, and that the resolution, upon roll-call, was passed, “all voting aye.” The minutes did not, however, originally recite the names of those voting “aye”; but after the reorganization of the board, by the passage of the school code, had deprived the clerk of his office, he undertook to amend the minutes to conform literally to the provisions of Section 3982, Revised Statutes, requiring that, upon a motion to adopt a resolution of this kind, “the clerk of the board shall call, publicly, the roll of all the members composing the board, and enter on the record required to be kept the names of those voting ‘aye’ and the names of those voting ‘no.’ ” ■
    Plaintiff in error claims that he was lawfully employed notwithstanding these irregularities, because, first, the minutes, as originally recorded, showed substantially, who voted “aye,” to-wit, all the members of the board, and that none voted “no”; secondly, the ex-clerk could lawfully, and did in fact, correct the minutes, to conform with the truth, by supplying the names of those that actually so voted.
    On the latter point it is contended that the ex-clerk could, by mandamus, have been compelled to do what in the discharge of his official duty he ought to have done; and that he might, therefore,, lawfully perform the same duty without such compulsion. Whatever may be true in reference to the continuing official duty of an ex-officer to surrender public property still retained by him after the expiration of his term, we can not agree that he can thereafter, by his own act, correct his official entries in public records. Hartwell v. Inhabitants of Littleton, 30 Mass., 229; Boston Turnpike Co. v. The Town of Pomfret, 20 Conn., 590; Vaughn v. School District Thirty-one, 27 Ore., 57.
    Upon the remaining point, we are of opinion, based upon Board of Education v. Best, 52 Ohio State, 139, and especially upon the view of Judge Cooley, therein endorsed, as reported in Steckert v. The City of East Saginaw, 22 Mich., 104, that the original minutes of the board’s meeting do not show that the resolution, here relied on, was lawfully adopted, because there is no entry of “the names of those voting ‘aye,’ and the names of those voting ‘no’,” as required by the section before, mentioned. The syllabus of the Michigan case is in part as follows:
    “A statute — charter of East Saginaw, Laws of 1859, p. 971— which requires that the vote of a city council, in certain cases, shall be entered at large on their minutes, is designed to accomplish an important public purpose; it can not be regarded as immaterial, nor its observance dispensed with. The record of a vote that it was adopted unanimously on call — the names of those voting not otherwise appearing than by the statement of those present at the opening of the session — is not a compliance with the statute. Neither the spirit nor the purpose of the act can be satisfied without entries on the minutes showing who voted on each resolution embraced within the terms of the act, and how the vote of each was cast; in other words, the ayes and noes on each resolution must be entered at large on the minutes.”
    The reasons demanding so rigid a construction of this and similar enactments, and compelling the conclusion that alleged contracts thus imperfectly evidenced are void, appear further in McCloud et al v. The City of Columbus, 54 O. S., 439, 453; City of Lmcaster v. Miller, 58 O. S., 558, 575; Buchanaoi Bridge Co: v. Campbell el al, 60 0. S., 406, 425.
    The judgment below is affirmed.

      P. H. Kaiser, for plaintiff in error.

      D. T. Miller, for defendant in error.

       Affirmed by the Supreme Court without report, March 26, 1907,


text:
    PROSECUTION FOR. BARBERING ON SUNDAY.
    [Circuit Court of Hamilton County.]
    In re J. B. Stanfeal, Ex Parte.
    Decided, May 11, 1907.

      Criminal Law — Constitutionality of Section 7033-1 — Making it a Misdemeanor to Barber on Sunday — -Habeas Corpus — Error—Amendment of Mayor’s Mittimus.

    1. Failure to provide maximum penalty does not render unconstitutional Section 7033-1, making barbering on Sunday a misdemeanor.
    2. The remedy of one committed for a misdemeanor, and denied the right to secure payment of the fine and costs imposed, is in a proceeding in error and not by habeas corpus.
    3. It is error on habeas corpus to direct a mayor to amend his mittimus by providing that a fine and costs may be secured to be paid.
    Gieeen, J.; Swing, J., and Smith, J., concur.
    J. B. Stanfeal was convicted under Section 7033-1, Revised Statutes, of barbering on Sunday, and sentenced to pay a fine of fifteen dollars and costs. It is urged that by the commitment he is denied the right to secure the fine and costs to be paid, as provided by Section 1536-793, Revised Statutes. While it is true that this omission maltes the penalty more oppressive than is warranted by statute, yet it is only an irregularity which may be corrected by proceedings in error, but not by habeas corptis. Ex parle Joseph Van Hagan, 26 O. S., 426.
    Section. 7033-1, Revised Statutes, is not unconstitutional and void, because of the failure to provide therein a maximum penalty. The power of the court in administering the law is limited by Section 9, Article I, of the Constitution of the state. Frise v. Slate, 23 Fla., 267; In re Yell, 107 Mich., 228.
    Where a person is convicted under Section 7033-1, Revised Statutes, and ordered to be committed until the fine imposed and costs taxed are paid or he be otherwise discharged according to law, it is not error on habeas corpus to direct the mayor issuing the process to amend the mittimus by providing that the fine and costs may be secured to.be paid. The People, ex rel, v. Killy, 97 N. Y., 212; In re Charles Harris, 68 Vt., 243.
    Judgment affirmed.

      Cha/rles F. Williams, for plaintiff in error.

      Bales c§ Meyer, contra.