text:
    (First Circuit, Hamilton Co., O., Circuit Court,
    January Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    WOOD v. THE VILLAGE OF PLEASANT RIDGE.

      Action to enjoin municipality from entering into illegal contraat for street improvement—
    Where a municipal corporation has no corporation solicitor, no action to enjoin the same from entering into a contract for a street improvement, claimed by a tax-payer to be illegal, can be brought by him in his own name; but he must bring such action on behalf of the corporation.

      Same — Irreparable injury—
    The mere averment in the petition that the injury will be irreparable is insufficient on demurrer to entitle plaintiff to an injunction.

      Establishing grade of street and ordering its improvement—
    There is no statute requiring village councils to establish the grade of streets by ordinance before ordering their improvement. It should be done by a separate ordinance, or by a resolution or ordinance to improve to a certain grade.

      Ordinance to establish grade and to improve street, referring to plans and profiles in office of engineer located outside of village—
    It is sufficient if the ordinance to establish the grade and ordering the improvement of a street refer to plans and specifications on file in the office of an engineer, who is located outside of the village, where they can be seen by the property owners. The court thinks it better practice to have them on file at some pláce within the municipal corporation, but would be loth to hold that the proceedings could be enjoined by a owner of land abutting on a proposed improvement if it were not done.

      Defect in proceedings for street improvement — Right of property owner to injunction—
    The validity of assessments made for a street improvement can not be contested by the owner of land assessed therefor, under Sec. 5848, Rev. Stat., and he is not at liberty before any such assessment is made or the work done, to come into court, and for the reason as he claims that there are some defects in the proceedings,have the council enjoined from making a contract for the improvement. This can be done in some cases under section 1778, by a taxpayer who sues on behalf of the corporation itself. But is is a special provision, and is not to be applied to cases other than those mentioned.
    Appeal from Court of Common Pleas of Hamilton County,.
   Smith J.

These two cases were heard on a demurrer filed to amended petitions, filed by leave in this court after the cases came here on appeal. The petitions are sustantially similar, and aver in substance, that the village of Pleasant Ridge is a municipal corporation, and that of Mrs. Wood avers that she is the owner and in possession of lot 14, in said village, bounding and abutting, and on the west side of Liberty street, between Williams street and Woodford road in said village, and that she is a tax-payer of said village. That on January 15, 1895, the council of said village passed an ordinance to establish the grade of Liberty street from Montgomery Pike to Woodford road, a copy of which ordinance is set out, and on January 21, 1896, it passed a resolution declaring if necessary to improve Liberty street between Williams street and Woodford road, in accordance with the plans and profiles on file in the office of Harper, Engineer, the cost and expenses of the improvement and the damages, if any, to be assessed per front foot on the lands bounding and abutting thereon, a copy of which notice was duly served upon the plaintiff. That no one of the owners of property bounding and abutting thereon petitioned for said improvement. That the ordinance to establish the grade of Liberty street contains no description of any grade for Liberty street, and that the plans and profiles for the improvement were kept in the office of J. M. Harper, Engineer, in the city of Cincinnati, and at the time she was served with a notice of the passage of the resolution to improve, no grade had been established, and the plans and profiles for the improvement were inaccessible to her. That afterwards the council passed an ordinance to improve the same in conformity with the resolution to improve.

Plaintiff then avers that a knowledge of the grade of the street and of the plans and profiles for the improvement was essential to her in preparing a claim for damages to her real estate by reason of said improvement, and that prior to the passage of said last ordinance, and until the expiration of the time for filing her claim for damages, she had no such knowledge. That the cost of the improvement will exceed $500, and that the village has advertised for bids for such improvement to be received at the office of Harper, Engineer, in Cincinnati, and that they were there received and read March 23, 1896. That the clerk is about to report said bids to a meeting of the village council, held in advance of the next regular meeting of the council after the receiving of the bids. That her said real estate has already been assessed per foot for the improvement of Woodford road, and that the combined assessments for that and this improvement is largely in excess of 25 per cent of the value thereof, and that the excess of the assessment thereon must be paid out of the general revenue of the village, and that there is now no money in its treasury to pay the same, and that the clerk has made no certificate that the money to pay the contract price, on the excess of the 25 per cent valuation, is in the treasury of the village. That unless restrained, the mayor and council will at an irregular meeting receive the bids and accept them and award the contract, and that the contractor will enter upon the improvement of said street in front of the premises of the plaintiff.

That such acts would be an abuse of the corporate power of the village; that such contracts would be in contravention of the laws and ordinances governing the village; that such improvement under those proceedings would inflict great and irreparable injury to plaintiff and her property, in preventing her from ascertaining the damages done to her property, and having it included in the cost of the improvement, and in barring her from presenting her claim to the council and receiving compensation therefor, and in placing on her property a proportionate part of the excess of 25 per cent of the value thereof.

L’ She, therefore, prays that the defendants be enjoined from receiving or acting on such bids, and from making a contract for said improvement under these proceedings.

The defendants demur upon the grounds, 1st, that the plaintiff has no legal capacity to sue and maintain the action; and 2nd, because the petition does not state facts sufficient to constitute a cause of action against the defendants.

The case was argued at some length, and several questions raised by counsel. As to those we deem material, we announce our conclusions briefly.

In the first place, it seems clear to us that these actions cannot be maintained, as claimed, under the provisions of Sec. 1778 Rev. Stat. If this section gives the right to a tax-payer to institute a suit “to restrain the misapplication óf funds of a municipal corporation, or the abuse of its corporate powers, in the execution or performance of any contract made in behalf of the corporation in contravention of the laws or ordinances governing the same,” (as jirovided in Sec. 1777), in a municipal corporation which has no solicitor, (which is open to question), this action must be brought by the tax payer “in his own name on behalf of the corporation.” That was not done in this case, and it must stand as an action by the plaintiff in her own right and to assert some legal right or claim of her own.

Does the petition state facts which entitle her to the relief claimed,or any part of it? We'are of the opinion that' there are no facts averred therein which show that any of the steps already taken by the council, or which it is alleged are about to be taken, will work irreparable injury to the plaintiff or her property. This is necessary to entitle her to the relief sought. “The mere statement in the petition that the injury is irreparable, is insufficient on demurrer” 31 Ohio St. 120.

• Her allegation is that owing to the fact that the grade was not properly fixed by the ordinance of January, 1895, she was unable to know the grade of the street, or of the improvement, and thereby was prevented from presenting a claim for damages until too late, and that thereby she may be barred. We think it doubtful if this is correct. If the grade was not properly fixed by council, we think when the improvement is made, she would be authorized to recover any damages she might sustain. But on the allegations of the petition the improvement was to be made according to the plans and profiles then adopted by council for the improvement, and they may have fixed a new grade. So far as we can see there is no statute of the state requiring village councils to establish grades of streets by ordinance, before ordering their improvement. It should of course be done by a separate ordinance,or by the resolution or ordinance to improve on a certain grade. If it was so done in this case, they were on file in the office of the Engineer, and could have been seen by plaintiff. We think it better practice to have them on file at some place within the municipal corporation, but would be loth to hold that the proceedings could be enjoined by an owner of land abutting on a proposed improvement if it were not done. The validity of assessments made for such an improvement can be contested by the owner of land assessed therefor, under the provisions of Sec. 5848, Rev. Stat., and we think that- he is not at liberty before any such assessment is made or the work done, to come into court, and for the reason as he claims that there are some defects in the proceedings, have the council enjoined from making a contract for the improvement. This can be done in some cases under Section 1778, by a tax payer who sues on behalf of the corporation itself. But this is a special provision, and is not to be applied to cases other than those mentioned.

Entertaining those views, it is really unnecessary that we should pass upon the question whether the ordinance for this improvement and assessment is invalid, for the reason that the provisions of the Burns Law, Sec. 2702 Bev. Stat. ,were not complied with, the clerk not having certified that there was money in the treasury of the village specially set apart to meet the expenditure. We think this statute does not apply to a case of this kind. It was not in the contemplation of council that any part of the expense of this improvement was to be paid by the village. The whole cost of the improvement was to be assessed upon the abutting lands, and presumably would be paid by the owners thereof. The case is entirely different from that of Holmes vs. Avondale, 11 O. O. Rep., 430, recently decided by this court, where one half of the whole cost of the improvement was by the special statute to be paid absolutely by that village.

O. W. Baker, attorney for Plaintiff.

W. E. Bundy, attorney for Defendant.

The demurrers, therefore,should be sustained and the petition dismissed, unless the plaintiff desires to plead further. But the entry of dismissal should expressly save the rights of plaintiffs to contest the validity and amount of any assessment that may be made upon the property on any ground, and not to bar in any way their right to claim damages to their property caused by such improvement.


source: Caselaw Access Project

author: Swing, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    January Term, 1896.)
    Before Swing, Smith and Cox, JJ.
    THE WARNER ELEVATOR COMPANY v. JAMES V. GUTHRIE.

      The acceptance of an offer to sell must be absolute and unequivocal.

    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

The main question in this case hinges on the point whether there was a binding contract between the parties. Guthrie made a written proposition to sell to the Elevator Company certain real estate. The Elevator Company wrote “accepted, title to be good.” There was no statement in the proposal of Guthrie that the title was to be good. The law on this subject is thus stated: “The acceptance of an offer must be absolute and unqualified, for until there is such acceptance, the negotiations amount to nothing more than proposals and counter-proposals.” 3 Am. Ency. 852.

W. P. Biddle and Peek & Shaffer, for the Elevator Company.

Follett & Kelley, for Guthrie.

“Acceptance must be unequivocal, unconditional and without variance from the proposal.” 7 West Rep., (Mo.) 106.

And in 117 Ill., p. 118, the court held, that an offer to sell lands, and an acceptance adding “providing the title is perfect,” did not constitute a contract.

It seems to us that under the general rule of law, as above stated, and under the decision in the 117 Ills., supra, there was no binding contract in this case,for the offer to sell is not accepted unequivocally,unconditionally and without variance. The acceptor adds “the title to be good.” It may be that an acceptor can not be compelled to take an estate unless the seller has a good title; but the acceptor may waive this and take the property and rely on his warranty. But here he says he won’t take it unless the title is good.

Besides, it seems to us that the evidence in the case clearly shows that the Elevator Company did not understand that when Guthrie was offering to sell the property,that the title was in him, but on the contrary, that he was the agent of the Harrison heirs in negotiating the sale, and that there was in fact a question as to whether a good title could be made, and therefore they were careful to add, as a condition to their acceptance, “title to be good,” and that they thereby intended to vary the proposition to sell to this extent.

Judgment affirmed.


author: Bentley, J.

text:
    (Sixth Circuit—Huron Co, O., Circuit Court
    April Term 1894.)
    Before Bentley, Haynes & Scribner JJ.
    JACOB HAMMEL v. THOMAS W. PALMER et al.

      Construction of Will — Devised lot on which devisee resides, where-the entire lot as numbered consists of two parts divided by a street laid through same—

    R., for many years,owned a certain tract of land in Monroeville,knownas lot 121, which long prior to his death was divided by the opening and extension of a street. R. occupied the portion of the lot on one side of the street for ware-house purposes, and the other was-occupied by his servant, H., who received a certain sum in wages and the use of that portion of the lot without rental. R. in his will, devised to H. “the lot known as number--in Monroeville, Ohio, on which the said H. now resides.” Held, that under said will, H. took only that portion of the lot lying on one side of the street, which he had actually occupied.
    Appeal from the Court of Common Pleas of Huron County.
   Bentley, J.

The case of Jacob Hammel v. Thomas W. Palmer and others, is a case that comes into this court upon appeal from the court of common pleas. Both parties claim the legal tilte and possession of a certain piece of real estate in Monroeville, Ohio, and the form which the action has now assumed is that each party asks that the title and possession in the real estate in question may be quieted as against the-other, it being agreed between the parties that whichever party to this controversy may be found to be legally entitled to the real estate, shall be deemed in possession, sufficient for the purpose of granting a decree to quiet his title.

The question presented relates to the construction of a portion of the will of Henry M. Roby, deceased, which was duly made, and after the death of Mr. Roby, in 1890, was admitted to .probate.

The contention arises for the most part, under the third paragraph of the will, which reads as follows: “I give and devise to Jacob Hammel the lot known as number —, in Monroeville, Ohio, on which the said Hammel now resides. ’ ’

Mr. Hammel contends that the property in question in this action was devised to him under that clause of the will.

On the other hand, the defendants claim that it was not so devised; that is, that it was not£included’in the description in the third paragraph of the will.

The facts bearing upon this matter jnay be briefly recited .as these: Henry M. Roby for many years owned a certain parcel of real estate in Monroeville, lying to the north of Monroe street, the southern boundary of that parcel being Monroe street. On the north of this parcel of real estate was another parcel belonging to other parties, and which had been platted as an addition to the town of Monroeville. In that addition, and dedicated as a part of it,[was a street called Prospect street, which came down in a southerly direction to the north line of the parcel of real estate here in question belonging to Henry M. Roby. This platting of the parcel of land north of the one here in question occurred many years ago, I think prior to the year 1873. After the platting, and somewhere from the year 1873 to 1875 — the particular year is of no importance — Prospect street, thus dedicated, down to the north boundary of the parcel here in question, was extended,in effect at least, and opened out to Monroe street through the parcel here in question. That threw a small portion of the parcel here in question, which is called lot 121, to the west of Prospect street thus extended. On this portion t»f the lot, designated generally as lot 121, the plaintiff in this action resided for many years. He was in the employ of Henry M. Roby as a man of all work, a laborer who did whatever work was designated by Mr. Roby in his life time. There was a house upon this westerly portion of lot 121, west of Prospect street, in which Mr. Hammel was by Mr. Roby allowed, to live without paying any” rent. Mr. Hammel says that he received so much in wages from Mr. Roby, and the rent1 of this ground free.

Many years ago, in 1873 or 1874, when Prospect street was thus in fact opened out southerly to Monroe street, and through lot 121, a fence had to be moved westerly, so that it became the eastern boundary of the parcel of land on which Mr. Hammel lived, and the western boundary of Prospect street thus extended. To the knowledge of Mr. Roby, this street was improved at various times, and, partially, by his own direction. Trees were set out within the boundary of the street, as is usual along a line of street for shade trees, and walks were constructed no each side of the street, and ditches made in throwing up the center of the street for travel in the highway; and the village itself, by action of its council, caused this so-called extension of Prospect street to be improved from time to time, and to all outward appearances, for many years before the death of Mr. Roby, it was a public highway of the village, although it was never formally, in writing, dedicated by Mr. Roby to the public use; but it became used in this way for travel for many years before Mr. Roby’s death. This lot 121 was divided by this street and the improvements upon the street, by a fence on the side of the street, into two parcels, one of which was this land upon which Mr. Hammel resided, and the other part, east of Prospect street thus extended, was in the possession of Mr. Roby at the time of his death, and upon it was quite a large warehouse covering quite an extent of ground, and “in which was the office of Mr. Roby, and in which he spent a large part of his time up to the time of his last sickness, in 1890. Mr. Roby resided in another part of town, and his usual way of going from this building upon the eastern part of lot 121 to his house, took him past the residence of Mr. Hammel and along past the portion of Prospect street thus extended through the so-called lot 121. That was the actual situation at the time this will was made, and at the time Mr. Roby died.

It does not appear that in any original platting of tho town this parcel of land was designated as lot 121. A map of the village was introduced in evidence showing this1, parcel as designated by this number, 121, and it was shown that the plat by which it originally got this designation was. a plat made for the purposes of taxation, and perhaps under the direction of the county auditor or recorder. It was: recorded as a plat in the records of the county.

It was testified that the reason this plat was made was because there were many lots in this village, some of them designated under certain numbers in the original plat, and other lots designated by similar numbers in the several additions to the town, and there might arise some confusion; and so, for the purpose of taxation, and in order to obviate that difficulty, this general plat was made, upon which this parcel became lot 121. Mr. Hammel, prior to the death of Mr. Roby, never had possession of the eastern portion of this lot 121, but he did have possession of this westerly portion, where he resided. Under circumstances of this kind, it is claimed that by force of the terms of this third clause in the will, the whole of lot 121 passed to Mr. Hammel. The plaintiff makes that claim, and the other parties claim that, under the terms of the will, and under the circumstances of the case, the will should be construed as only devising to Mr. Hammel that portion west of Prospect street upon which he resided.

There is no particular controversy among the counsel as to the general rules of law upon the subject of the construction of wills, namely: That the court should ascertain by the terms of the will, and by the circumstances surrounding' the testator at the time he makes it, what his intentions in. fact were in using the terms that he did in fact use.

Strictly and legally speaking, when we speak of a certain designated lot in a village by number, and there is that numbered lot, and only one lot so designated, one number of that figure, the land included in the platting of the lot should be held to have been intended. It may be, of course, that the mere terms — a certain lot number 121,we will say, in a village — may or may not designate one certain defined parcel of land within the bounds of the village. There may be several lots; or more than one, bearing this same number. There may be a lot of that number in the original plat, and there may be a lot of the same number in one or more additions to the original plat, and all within the designated village; or there may be but one lot of that one number. The term “lot, “as is well known,is used very frequently with other designations, as simply indicating a parcel of land. Defined it may be by dedication, or it may be by the existence of boundaries such as fences, or it may be by other means pointed out and designated. This will says that the lot known as number (blank) in Monroeville, Ohio,on which Mr. Hammel resides is devised to him, the number not being inserted.

It does not appear that the westerly portion, upon which resided Hammel, was designated in any plat as any particular number; neither does it appear that the westerly portion was designated by any particular number originally; but the whole parcel simply bears in this plat that I have mentioned — the assessor’s plat — the number “121.”

We have looked at this will and considered the circumstances and the authorities cited by counsel on each side of the case,carefully, and we think thoroughly, and we cannot resist the conviction from considering it all, that Mr. Roby did not intend, by these words in the will, to devise the eastern portion of this property thus entirely separated from the western portion by Prospect street; that he simply intended to devise to Mr. Hammel that portion of what was originally lot 121, upon which Mr. Hammel resided, and that that was the lot intended by him in the third subdivi«ion of his will, (and with that view of the matter, it follows that(the decree]hnust be in favor of the defendants, and against the plaintiff.

T. H. Kellogg, for plaintiff.

Hamilton & Ford, for defendants.

(Affirmed by Supreme Oourt, without report, June 23, 1896.)


author: Haynes, J.

text:
    (Sixth Circuit—Huron Co., O., Circuit Court
    Nov. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    BERRY, ADM’R., v. HAAS, et al.

      Transfer of land, grantor reserving life estate — Constructive fraud on creditors—
    1. H. owned property worth 88,000, upon which there were incumbrances of 86,4000, and being indebted to his son 81,200, he deeded the property to the son who assumed the incumbrances, H. retaining a life estate. Held, The reservation of the life estate, under the circumstances, was a constructive fraud upon the creditors of H.
    Appeal from the Court of Common Pleas of Lucas county.
   Haynes, J.

It appears from the pleadings and the evidence that in the year 1893, Jacob Haas was the owner of two pieces of property in Sherman Township, this county, in the whole about 214 acres. He was then living on the premises, and had resided upon them for á great many years. There' were existing at the time upon the premises three mortgages, aggregating in amount about $6,400, which was due and unpaid, but upon it he had been paying the interest. He also owed, at the same time, some unsecured debts, to quite a little sum, perhaps two or there thousand dollars. He also had personal property on his premises amounting, perhaps, to eight or nine hundred dollars. He had a son living with him that was about thirty-two years of age, and the son had married the year previous.

In the year 1893, Jacob Haas conveyed to his son Joseph Haas, by name, the two pieces of land subject to a life state in himself in the whole property. The son took the land subject to the mortgages, and was to pay them off. The consideration mentioned in the deed was the sum of thirteen thousand dollars. The testimony shows that at the time the land was bought in 1866 by Jacob Haas, the consideration for the land was about thirteen thousand dollars, and was so stated in the deed.- It is claimed that in truth and in fact the consideration of the deed to the son was in payment for certain services that had been rendered by the son to his father. It appears from the testimony that shortly before this — perhaps it was originally a part of the same transaction- — -the personal property had been conveyed to the son for the sum of eight hundred dollars, and was paid for out of this same indebtedness that is claimed forms the consideration for the deed.

The proof is that when this young man became of age, the father desired him to remain with him and work for him, and agreed with him that he should have the sum of $200 a year for his services. The understanding was that the father should buy the clothing for the young man, and should board him, the clothing, however, being a very small item. He also gave him a dollar or so occasionally to go to some party.

The claim is that at the time of the marriage of the-son, this matter was talked over, and at the time this conveyance was made, that there was due from the father to-, the son the sum of ten years’ service at $200 a year, being a total amount of $2,000. No notes had ever been given or demanded for the money, and no interest paid, and the claim is that the real consideration for these premises is the balance that is due on this $2,000 after taking out the eight hundred dollars, which would leave about $1,200.

Testimony has been offered as to the value of these premises. Some of the witnesses have estimated the premises worth from $40 to $50 an acre, and some of the defendant’s witnesses have estimated them worth from $35 to $40 an. acre. Perhaps a fair estimate of the cash'value of the real estate at the time of this transaction would be the sum of $40 an acre.

• The stepmother of the son at first declined to sign the deed until some arrangement was made in regard to her dower interest in the real estate. She withheld her signature some ten .or twelve days, during which time an arrangement was effected between the stepmother and Joseph, whereby he agreed to pay, after the death of his father, the sum of $100 a year during her life, in consideration of her signing that deed, as the release of her dower interest.

The plaintiff, Stephen Berry, administrator, is one of the creditors of Jacob Haas, and prior to the commencement of this suit put his claim in judgment, and execution was issued and a levy was made upon this farm- — that is to say, upon the interest of Jacob Haas in the premises. Thereupon this petition was filed to marshal liens upon the property and to declare this deed invalid as to plaintiff and a fraud upon the creditors. It is brought under that section of the statute which provides for creditors’ bills, under section 6234> for declaring a trust upon the premises.

Testimony has been taken and the case has been argued to the court, and the claim is strenuously made that the transfer was made for the purpose of defeating and defrauding the creditors of Jacob Haas, of whom there were five, having debts of four or five hundred dollars each.

We have given this matter careful attention, and have arrived at this conclusion: Premising by saying, that in any order that the court may make, the question arises in this case as to the value of the life estate of Jacob Haas; also the question arises as to the value of the dower interest of Mrs. Haas, and the question as to the lien or claim of ■Joseph Haas for the amount of his services for the thousand or twelve hundred dollars.

The life estate is subject to be defeated at any time by the foreclosing of the mortgages on this property, and by the foreclosing of the mortgages upon the property in like manner, to a certain extent, the inchoate right of dower of the wife is jeopardized; although, if there is money enough left from the sale of the property after the payment of mortgage lien, the claim is made and perhaps sustained by the courts, that she would be entitled to compensation out of the proceeds for her whole dower interest. We do not decide this question, however. We intend to leave that open for the further action of the court.

Our purpose is to find whether this judgment creditor has his judgment lien and his levy, which is,perhaps, not disputed; and to find whether the transfer of this property by this ■deed, leaving the life estate of Jacob Haas, under the facts in this case, amounts to a constructive fraud. We find no actual fraud in this matter as between Jacob Haas and Joseph Haas, but we do find that the reservation of the life ■estate to Jacob Haas, whereby he retains and has the use of that property during his natural life, is a constructive fraud upon his creditors, and the decree of the court is simply that the property be ordered sold and the proceeds brought in to this court, and we will then be able to more clearly and correctly fix the respective rights of these parties out of the proceeds of this sale.

It can be found, also, for the purpose of saving any rights that these mortgagees have liens, as set up in their respective answers, and if the creditors have judgments and have made levies upon this property, even though they made them after the commencement of this suit, we think they ought to be allowed to come in and set up their liens as against this property.


author: King, J.

text:
    (Sixth Circuit—Huron Co., O., Circuit Court
    Nov. Term, 1895.)
    Before Haynes, Scribner and King, J J.
    BRADLEY v. FIKE.

      Agent fraudently taking conveyance in his own name, and giving ■mortgage — Rights of mortgagee as against agent’s principal-is., as the agent of L., purchased property fraudulently, taking the-title in his own name, and then gave B. a mortgage, who did not file his mortgage for record till after L. had brought an action to compel F. to convey the property to her. Held: B’s right in the property is superior to L’s.
   King, J.

This action was brought in the court of common pleas by Mr. Bradley to foreclose a mortgage given to him by the defendant, W. A. Fike, to secure a promissory note of $450.00. Bradley alleges that on the 18th day of July, 1891, he loaned the defendant, W. A. Fike, $450.00, taking his promissory note therefor, payable in one year from its date, and also took from Mr. Fike a mgrtgage which he, on that day, executed and delivered to him upon a certain parcel of land described in the petition and being fifty-two and one-half acres, more or less. He also alleges that one Nannie E. Lucas, and a man by the name of Funk, claims some interest in the premises, and he asks for judgment and foreclosure on the mortgage. W. A. Fike was served in this action by publication, but did not appear to answer. Nannie E. Lucas, however, did answer, and she sets up in lier answer, substantially, that at the time of the execution ■and delivery of the mortgage described in the plaintiff’s petition, she was the owner of the premises for which the mortgage was given; then she sets up a state of facts by which she seeks to show that the defendant, Fike, at the lime of the execution of the mortgage, held the naked legal fitle in these premises in trust for her.

The evidence offered upon the trial of the case discloses, as to the facts which are not disputed, that sometime in April or May, of 1891, Mrs. Lucas was the owner of hotel property at Oak Harbor, in Ottawa county, and her husband resided with her, and was in the occupation of that property; that about the time they came into communication with the defendant, Fike, and through him, arranged a trade for the hotel property, for certain lands which he represented to them he could trade for this hotel property, the land belonging to a man named White, who resided at New London, where Mr.Fike then resided. There was some discussion in these preliminary talks about the amount of land to be conveyed,, and Mr. Lucas, acting for his wife on one occasion, went, and visited this land and found it as a farm arranged on< opposite sides of the road, in two parcels, substantially of about fifty-two acres each.

On the consummation of the trade, Mr. Fike went .to Oak Harbor with the deed of the fifty-two acres, or one' piece of this land, and exhibited it to Mrs. Lucas, or to her husband, or to both of them, and then said to them that. Mr. White would not give a deed for any more land or for any other part of this farm than the part contained in this deed. There was some discussion between them as to whether it waa enough or not, but it resulted in the acceptance of the deed for one piece of this land and the delivering over, at that time or before, of her deed to Mr. White for the hotel. Her deed went on record soon after at the recorders’ office in this county. About the same time, also,, appeared of record the deed from Mr. White to W. A. Fike for the other piece of the land, which constituted this one farm, lying near Fitchville in this county. That occurred some day in May.

On the 18th of July,,. as shown by the petition and by the evidence, Mr. Fike borrowed from the plaintiff, Bradley, $450.00, and executed a mortgage. On the 24th of July, Nannie E. Lucas, having learned some time before that (and the time she learned it is not shown by the evidene ■exactly), but having learned that this man Fike had taken a deed and had had it recorded for another piece of land from Mr. White she brought an action to have it decreed and declaredly the court that Mr. Fike held the title to that particular piece of land in trust for her, and on the '25th day of July Mr. Fike was served with summons-in that ■case and on the 11th day of August of the same year, Mr. Bradley filed his mortgage,taken by him on the 18th day of July, for record in the recorder’s office of this county.

These are substantially the important facts as shown by the testimony in the case and upon which the claims of the different parties arose. It is claimed here on account of the provision of the statute relating to the recording of mortgages that Mr. Bradley,the plaintiff,did not acquire as ■against any person except Fike any interest in this property until his mortgage from Mr. Fike was delivered for record. That before the delivery was made, Mrs. Lucas having commenced an action setting forth her rights in this prop-ertv to be that of the legal and equitable owner, and setting forth that Mr. Fike had no interest therein except the legal title of it, that by the filing of such an action, both under the common law and under the statutes of the state, she acquired such rights in the property as of the date of her action as were superior to the unrecorded mortgage of Mr. Bradley. These are substantially the points urged by the counsel for the defendant. There are some other facts that may be deemed material for the proper disposition of this ■case, and which are somewhat in dispute.

Mrs. Lucas claims, as shown by the testimony, that in the making of this trade of the' hotel property for the farm, the defendant, Fike, acted as the agent of Mr. White, the owner of the farm, and not as her' agent. But the evidence discloses that he was acting as the agent for both of these parties. The evidence discloses that both of them paid him; Mr. White paid him $100, and Mrs. Lucas or her husband paid him $75 for the part which he played in the transaction. They undoubtedly could both recognize' that he was acting as their agent to some extent. But the-evidence goes a little further than that in disclosing his. agency. It is very pertinent that when this action was-brought to declare this trust, Mrs. Lucas set forth as the-state of her title and of her rights in these premises, and by which she now claims under the statute relating to lis pen-dens, that Mr. Bradley had notice that, “on or about the-20th of April, 1891, she was the owner of valuable hotel-property’’(omitting certain words which are not necessary for the statement which I desire to take out of this petition),, and “on that day entered into an arrangement and agreement with the defendant W. A. Fike, whereby for a valuable consideration the defendant promised and agreed to and’ with the plaintiff that he,the defendant, would negotiate for the plaintiff a transfer and exchange of said hotel property for certain real estate then owned by one Albert White, situate in the township of Fitchville, Huron county, Ohio, or so much of said real estate as could be obtained in said exchange, and to his, the defendant’s best skill and judgment in obtaining from said White as much of said Fitch-ville real estate and a transfer of the same for said hotel-property, on terms as favorable to the plaintiff, as possible.

“On or about the 25th day of May, 1891, the defendant (Fike), did negotiate an exchange of said hotel property for all said real estate of said White in said Fitchvilletownship, receiving from said White as the purchase price and consideration for the deed of this plaintiff conveying to said White said hotel property.’’

Then she goes on and more particularly describes it, and says that at the said time and on said occasion there-was received from Mr. White two deeds, one of which was-made and executed by Mr. White and granted to her one-of these pieces of land, and the other made by him and granted to Mr. Fike the other piece of land.

Then she charges that he put that deed on record, and that he came and falsely represented to her that in making this trade he could secure from Mr. White but the one piece of land, and she, believing that he could not secure from, Mr. White any more of the land, in accordance with the agreement that she had made with Him, that he was to get as much of the Fitchville land as he could, she accepted the deed for the fifty odd acres, and delivered over her deed.

From these facts she says a trust arose, and it undoubtedly did, if these facts were true, and as the court, found when it came to try the case, that these facts were substantially true, that a trust did arise in favor of Mrs. Lucas,and that she was the equitable owner of this land and entitled to have it conveyed to her, and a decree was made-. to that effect.

But that places the case of Mrs. Lucas entirely upon, the ground that Mr. Fike was her agent in this whole transaction, and because he was her agent, she had a right to insist on his turning over to her the proceeds of the transaction as he had procured it.

If Mr. Fike was purely and simply Mr. White’s agent,, it follows just as certainly as effect follows cause, that Mrs,. Lucas did not have any trust estate there, and she couldn’t have procured that deed to be set aside and a conveyance-made to her; for, if Mr. Fike was acting for Mr. White, then it might as well have been Mr. White acting instead of Mr. Fike. All there was of the charge of a false statement to her, was the simple statement by Mr. Fike that he couldn’t get any more land; that Mr. White would convey no more land, and if Mr. White had said that to her in. person and she had accepted fifty acres, she would have been bound by her bargain, even if she had expected she might get more.

But Mr. Fike was her agent, and as such he was charged with a strict accountability in all of his acts, and when he traded he traded for 104 acres of land, and she was entitled to that, therefore the court decreed it to her.

We think that the evidence discloses that that was substantially the bargain, although it discloses that he was also the agent of Mr. White, and as the agent of Mr. White, traded off this farm, and that Mr. White, in what he did, intended to convey this land to Mrs. Lucas.

Now, if that is the situation of the case, and Mr. Fike was her agent and took the title of this property in himself when he ought to have had it made to her, and while the title so remained in him, he executed a mortgage upon it and secured a bona fide loan of money made to him on the strength of his apparent title, it appears to the court that it does not make very much difference about the recording act; that Mr. Bradley’s equity — created by this mortgage— which the Supreme Court have said was good between the parties, if not equally good as to Mrs. Lucas, is better than her claim which simply rested in her mind at that time. In other words, if, while this deed ought to have been made to her by her agent at the time of the transaction, he fraudulently kept it or took a deed of a part to himself, and sold it or conveyed it to some one else as security for money loaned, that person would have a right to enforce his mortgage against Mrs. Lucas, whether it was recorded or not. We can come to no other conclusion than that — we do not care to elaborate upon it. A great many cases have been cited to us under the recording statutes, and if it were a question of the effect of this recording act, we should be compelled to hold that the equitable interest of Mr. Bradley in this property, as evidenced by this unrecorded mortgage, was of such a nature as would make it superior to the claim which the defendant then held, and that whenever he should file that of record, he would ripen that equitable interest into a legal interes! in this property, and it .would be good against her; that her interest in the property was not one in existence, either at the date of the execution of this mortgage, or of its being left for record. Her claim set forth in her petition is a claim that she had employed this man as an agent; that she had directed him to do certain things, and’ that he had failed to do this honestly, but had done something else, and she asks to have his acts in that respect set aside and the title to this property decreed to be in her.

We do not believe that the filing of her petition was the creation of such a right in her in this property as would* under the decisions of the courts in this state, make it superior to an unrecorded mortgage, given as this was. There are a great many of those decisions, and we find, substantially, in all of them, so far as we have been able-fa examine them, that where the courts have given an opinion* they state substantially that the object of the statute is to-render an unrecorded mortgage ineffectual, or, in the language of the statute, “of no effect as to persons who may acquire some interest or lien in or upon premises after the date of its execution.” I can find no decision of the Supreme Court, and none has been cited to us that I know of, where any language contrary to that has been used by the courts. And we would not feel that we could ignore all that the courts have said upon that subject, although it might be-correctly argued that it was unnecessary for the judge, in-delivering his opinion, to. use that precise language; but-very able judges in this state have used that language, andi even stronger than I have stated it. I see no reason why-the statute could not fairly be construed and held to have-that meaning and effect. The courts having held that these mortgages] were good as between parties, what object orpurposejhas the recording statute except to provide that a mortgage[not recorded shall be held not to have any effect. ¡as to the parties or persons who may acquire some interest ¡against it, subsequent to the making, of the mortgage.

For these reasons, we think the plaintiff should have a decree foreclosing this mortgage for the amount that is now due upon it, whatever that may be, and an order of sale.

The order will remand the case to the court of common pleas for execution.


author: Swing, J. Smith, J.

text:
    (First Circuit—Hamilton Co., O.Circuit Court.
    January Term, 1896)
    Before Smith, Swing and Cox, JJ.
    COMMISSIONERS v. THE STATE ex rel. ALTER.

      Gilbert avenue viaduct aet held unconstitutional — Special act conferring corporate power—
    The act authorizing “the county commissioners of Hamilton couDty to extend Gibert avenue, in the city of Cincinnati, from its present terminus at Court street to Broadway, and to provide a fund therefor,” (88 O. L., page 815), is unconstitutional, in so far as it also authorizes the “City Board of Administration or board of city affairs, to include the present width of the sidewalk along the present south side of Eighth street from Eggleston avenue to Broadway in said improvement.”
    Appeal from the Court of Common Pleas of Hamilton County.
   Swing, J.

Our Supreme Court, in the case of the Board of County Commissioners of Hamilton County v. The State of Ohio ex rel. Teasdale (32 Bull., 407), decided that the act passed May 21, 1894, known as the Fern Street Bridge Act, was constitutional. That act is similar to the one in question here, and we are unable to see why, if that act was valid, this is invalid. Due respect to the decision of our Supreme Court, it seems to us, requires that the act in question here should be held valid. If we did no consider ourselves so bound, we would be inclined to hold that the act in question is a special act conferring corporate power, and therefore invalid. The. judgment of the court of common pleas is therefore reversed, and the cause remanded to said court for further proceedings.

Smith, J.

If the judgment of the Supreme Court, affirming that of the circuit court in the Fern street bridge case, without any further report, was intended as a holding that the statute under consideration in that case (Ohio Laws, volume 91, 826), did not attempt by a special act to confer corporate power upon the city of Cincinnati, I, too, am unable to see how, with a proper regard for the judgment of that superior tribunal, we are at liberty to hold that the principal objections urged by counsel against the constitutionality of this act are well taken, and as the questions properly arise on the face of the record and the statute,! suppose that we should .accept such to have been the decision of the Supreme Court.

But there is one provision in the statute involved in the present action, which was not in the others, and I am inclined to think that it does confer corporate power upon the city or its authorities, by a special act, and therefore that it is in violation of the constitutional provision referred to

The act expressly confers upon the county commissioners (in the event that they are requested so to do by the city authorities) power “to acquire by purchase, or condemnation, the land necessary to extend Gilbert avenue from its ■present terminus at Court street, southwardly on such line and grade as shall be located and established by the Board of Administration, to a point at or near the junction of Cleveland street, Eighth street and Eggleston avenue, and from thence westwardly along the present south side of Eighth street to Broadway in said city, including the land and easements necessary for lateral support.” And the additional provision to which I refer is this, “said Board of Administration or Board of City Affairs, may include the ■ present width of the sidewalk along the present south side of Eighth street from Eggleston avenue to Broadway in said improvement. ”

Theo. Horstman, for Franklin Alter.

Corporation Counsel for City.

It seems to me that this is a grant of power to the city authorities to make a disposition of a part of one of the streets of the city, for a purpose and in a manner which, without this law, they would have no right to do, and this makes that provision in contravention of the constitution on this point, and that in all probability this would affect the validity of the whole statute.

I therefore favor the affirmance of the judgment.


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court.
    April Term, 1896.)
    Before Scribner, Haynes and Swing, JJ.
    CALKINS v. CITY OF TOLEDO.

      Corner lot assessment — Lot irregularly formed—

    In determining the assessment of a corner lot which lies lengthwise on the proposed improvement, the assessment on such lot should be-made on its depth, where the lot is a parallelogram.
   Haynes, J.

This action is brought to enjoin the collection of certain assessments that have been made upon the ground, in brief, that they are contrary to the rules laid down by the Supreme Court in the Haviland case.

It appears from the testimony that the city ordered Scott-wood avenue to be improved from Bancroft street to a certain point, and form that point through to Monroe street ■with an asphaltum pavement, about thirty feet in width. A map of all the property has not been placed before us, and we only have a small plat of the lot at the corner of Monroe street and Scottwood avenue, which is the property in controversy. It appears from that that the plaintiff, Maria Calkins, has possession of a certain lot, No. 24, of some addition, which is at the intersection of Monroe street and Scottwood avenue, 224 feet ten inches, and has a depth at right angles with Scottwood avenue of 150 feet, but owing to the direction of Monroe street, the actual frontage on Monroe street by the angling course is 169.14 feet. The ■contention of plaintiff is that she should be assessed upon Scottwood avenue only for 10 feet, as representing the actual frontage of the lot on Monroe street. The council assessed the property by the side length, to-wit: 224 feet.

It would have been a little easier to have decided the case, perhaps, if we had had a plat of the entire district, because the distance from Monroe street to Bancroft street is considerable, and there must have been a great many lots laid out, and some intervening streets. We have, amid doubts and uncertainties, endeavored to carry out what we considered the true spirit of the Haviland case, and'we have come to the conclusion that the assessment should be for 150 feet on Scottwood avenue, being the depth of the lot, assuming it to be a parallelogram.

In the Haviland case, the court, in arriving at its conclusion, says:

“It may be said that this is assessing according to a fiction. Admit this to be true,and, still it must be remembered that equity many times resides in fictions, and that they have been frequently resorted to for the purpose of working out justice against the hard lines of the law. -But, at any rate, the city cannot be heard to complain; for if we were to apply the strict letter of the statute to the mode of assessing adopted in this case, by the foot front, it might well be questioned whether it could assess a dollar on a lot that does not in fact front, although it may abut, on the proposed improvement. ”

The essence of that is, as I understand it, to make this assessment in such a manner as will work out and adjust the assessment upon equitable principles. If Woodruff avenue were extended through, as was suggested by counsel, the frontage of this same lot upon that would be only 10 feet, because Scottwood avenue and Woodruff avenue lie at right angles. It may be assumed, I think, that there is a large number of lots between Monroe and Bancroft streets,and that there are lots lying upon Scottwood avenue and upon other streets — that is, at the intresection of other streets — lying at right angles. Certainly it will be unjust to assess this lot at the corner of Monroe street and Scottwood avenue for 169 feet simply because Monroe street happens to lie angling in its course,whereas the streets that are between that point and Bancroft street are lying at right angles with Scottwood avenue, which would bring the depth of the lots upon those streets of the same size 150 feet. The mere circumstance that Monroe street runs at an angle would cast a greater burden upon the plaintiff than she ought to bear, as compared with the amount of the assessment that would be paid by other parties.

It does not follow that because of the making of this assessment for Scottwood avenue, that ¿n assessment upon Monroe street would not be made in accordance with the actual frontage on that angle, which would be a frontage of 169 feet. So I can conceive of where a street might start at an angle and turn so as to go at right angles, making a different assessment necessary.

We have been cited to a decision in Cincinnati, which seems to amount to this: that there is a great deal of confusion in regard to the manner of making assessments. That decision leaves the matter in such a shape that it is not of very great matter or force in deciding a question of this kind.

Brotan, Geddes & Tyler, for the plaintiff.

G. F. Watts, for defendant.

We can very easily see that if this angle were greater than it is, it might work a very much greater hardship. If it were an angle of such a degree that it came back half or two-thirds of the way, the assessments would be nearly as great as if it were assessed by the front on Scottwood avenue. Therefore, while we have doubts and uncertainties in regard to this matter, we are inclined to view the equities of the case, and to hold that the amount of the assessment on this lot 124 should be limited on Scottwood avenue to the extent of 150 feet, and no more.


author: Smith, J.

text:
    (First Circuit Hamilton Co, O., Circuit Court
    December Term, 1895)
    Before Smith, Swing and Cox, JJ.
    EDWARD S. JAFFRAY & CO., v. CHAS. S. WEATHERBY, WILL A. STEVENS, GARNISHEE, APPEAL.

      Trust claimed for benefit of husband’s creditors in property standing in his loife’s name — Failure of proof — Creditor’s bills under sections 5464 and 6344—
    Under section 5461, where the title to property has been decided in an action in the nature a creditor’s bill, such decision is not a bar to an action of the same character by another creditor again involving the same question of title to the same property.
    Appeal from the Court of Common Pleas of Hamilton County.
   Smith, J.

The action of the plaintiffs is of this nature: The petition sets out the recovery of a judgment by the plaintiffs in the Superior Court, against the firm of Weatherby, Stevens & Co., of which the defendant Stevens was a member, for $7,016.74,on May 7, 1889; that all of the judgment debtors are insolvent; that W. A. Stevens has an interest in two lots in Norwood, which his wife, the defendant, Mrs. Stevens, holds in trust for him; that said lots were purchased from Mrs. Dicks, then the owner of them,May 22, 1888; that part ■of the purchase price was paid in cash by Stevens, but the title to the same was taken in his wife’s name,in fraud of his ■creditors; that he paid part of the deferred payments thereon with his own money when he was totally insolvent, and on which plaintiff’s judgment and claim against him was a valid one; that said Anna Stevens has property and credits nndor her control belonging to said W. A. Stevens, the amount of which the plaintiffs do not know; that they caused an execution on said judgment to be levied on said real estate. They therefore pray for the appointment of a Receiver to take charge of all of said property, and to sell the same, and to apply the proceeds towards the payment of their claim.

The answer of Mrs. Stevens denies that she holds the lots in trust for W. A. Stevens, or that she has any property or credits of his under her control, and then pleads that plaintiffs are barred from maintaining this action against her for the reason that heretofore another creditor of Weatherby, Stevens & Co. had commenced a like action against her, prosecuted by the counsel who bring this suit, based on the same grounds and that in such action a decree had been entered by the court finding that she was liable for $350 on account thereof, and dismissing the defendant as to the residue of the claim, and that thereupon she paid the amount awarded, with her costs of said case. The plaintiffs did by their reply deny that this was a bar, or that the decree in the former case would prevent their recovery in this.

The evidence produced to us on the hearing of the case was of the most indefinite and unsatisfactory character as to the payment of the purchase money of the lots conveyed to Mrs. Stevens, or of any definite portion thereof, by said W. A. Stevens, the judgment debtor. It is clear to us that of the $3,400, the purchase price of the lots, the cash payment of $1,050 was paid with the money of Mrs. Stevens, with which her husband had nothing to do. At the time of "the conveyance of the lots to Mrs. Stevens by the former •owner, there was a mortgage of $2,350 thereon, which she •assumed and promised to pay. Stevens testified that he paid nearly all of this mortgage that was paid, but it is evident from what he says that a great part of it was paid with money which his wife had received from the collection of accounts transferred to her by the old firm of Weatherby, Stephens & Co., and to which money he had no valid claim, but to which he asserts some claim, without showing what it was. He does, however, say and show that one of the notes for the deferred payments of $50 was paid by services rendered by him to the holder thereof, and he says he paid other sums on the notes from his own private means, but he is not able to specify any other sum or sums paid by him thereon. If, while he was insolvent, he, with the knowledge of the wife of that fact, paid money for land bought for, or held by the wife, the law would fasten a trust upon the land in favor of a creditor for the amount. But here, by the testimony of the husband, now adverse to the wife, it is only shown with any certainty, that he paid the $50 thereon. We think, from what he says, that it is highly probable that the other payments made were with the money of the wife.

The strongest evidence against Mrs. Stevens, who was not examined as a witness, is contained in what is called the agreed statement. It appears in this shape substantially:

“Admissions by Anna F. Stevens as to amounts given to her by defendant, Will A. Stevens, and made by her in the hearing of case No. 90,314, Halzmaister v. Weatherby et al: After failure (assignment) of Weatherby, Stevens & Co., and prior to June 26, 1890, $1,700; from August, 1886, to date of assignment, January 4, 1887, $480; commission owing by Anna F. Stevens, and paid by Will A. Stevens, $50; total $2,230.

“We agree that the above admissions be admitted as the testimony of Anna F. Stevens to be used in behalf of plaintiffs in this cause.

“It is agreed that Will A. Stevens was insolvent on¡ . August 18, 1886 and insolvent when the above payments were made by him.

It is also agreed that Anna F.Stevens recovered her board, clothing and living expenses from Will A. Stevens, her husband, in addition to the payments named above.”

From this it appears that Mrs. Stevens on a former trial admitted that her husband had given to her $1,700 after the assignment made by Weatherby, Stevens & Co., January 4, 1887, and before June 26, 1890, and that he also furnished her living expenses. As to $480 received by her, before the assignment, if that was a claim against her,it has; to be asserted by the assignee for the benefit of creditors, and not by plaintiffs.

The fact that the wife, after the failure and assignment, received $1,700 from her husband while he was insolvent, does raise a suspicion that the payment was not right or just to the creditors. But there is not a syllable of evidence as to the circumstances under which it was paid, or what be-, came of it. For all that appears it may have been expended by her for him or for the education and maintenance of their children, if they had any, or appropriated in some other way for his benefit. It may have been received by her without any suspicion or.knowledge of his financial condition. As to all of these matters there is no evidence before us. Certainly no part of it is traced into this land, or to' any land or personal property held by her. We cannot say, then, on the evidence, that even $350 was traced into the land, as was found by the trial judgment in the other case on probably much more definite evidence.

D. D. Woodmansee, for Plaintiff.

Follett & Kelley, for Defendant Anna F. Stevens.

It is therefore necessary for us (as Mrs. Stevens paid the $350 back), to decide whether the decree in the first case was a bar to a recovery in this. We incline to the opinion that both were in the nature of creditor's bills, under section 5464, Revised Statutes, and not under section 6344. If one proceeding and judgment under the latter section would bar a subsequent proceeding by another creditor, which may be doubted, we think it is not the case under section 5464. But this question we do not decide, but feel constrained to dismiss the petition of plaintiffs on the ground of failure of proof.


author: Day, J.

text:
    (Third Circuit—Wyandot County, O., Circuit Court,
    Sep.Term, 1895.)
    Before Seney, Day, and Price, J.J.
    ELIZABETH GILLETT v. CLAY MILLER et al.

      Homestead and Dower rights of wife in insolvent husband’s inheritance—
    1. A wife, living with her husband who is largely in debt, neither husband nor wife owning a homestead, is entitled to select and receive §500.00 in lieu of a homestead out of a fund arising from a sale in partition of an undivided interest in real estate inherited by the husband while insolvent.
    Same—
    2. The wife is also entitled to be paid, out of said funds, the present worth of her inchoate right of dower in the husband’s undivided interest in said real estate.

      Action for money only — Amount claimed must be indorsed on summons—
    3. It is error to render judgment, on default, on a petition for money only, where the amount claimed to be due is not endorsed on the summons served, for which the judgment may be reversed by proceeding in error. The judgment, however, is not void, but voidable only at the instance of the party in interest who is prejudiced by it.

      Same — On failure to indorse amount claimed, on summons, judgment voidable only—
    4 Such judgment, in the absence of a proper proceeding to reverse it, is subsisting and valid, and supplies a basis for a writ of execution which, when levied on an undivided interest in real estate, accomplishes a lien on such undivided interest from the date of the levy.

      What sufficient description of interest in land levied upon.

      5. The levy is not void for uncertainty in the description of the land or of the judgment debtor’s interest in it. Where the entire tract is correctly described and the undivided interest is stated to be: “All the interest of C. M.,” in such land.

      Failure to appraise and sell after levy — Effect—
    6. A failure to appraise the undivided interest levied on, or to make an effort to sell it, is not an abandonment of the levy. Such proceedings are not necessary in order to create a lien. The judgment creditor may reasonably await other processes in motion to realize his claim.
    On appeal from the Court of Common Pleas of Wyandot County.
   Day, J.

The case, originally, was in partition by the parties plaintiff and defendant,as heirs at law of one Charles Miller, deceased. Defendant Clay Miller is one of the heirs, and was entitled to one share of the real estate of the deceased. Partition was had, the lands sold, and the proceeds distributed to the various heirs and parties entitled except the share or interest going to the defendant Clay Miller. The portion of the fund representing his interest was held in the Court, awaiting its further order concerning its disposition, upon the determination of the fights of the various claimants to participate therein; in virtue of the liens asserted against it. . These claimants, on their own motion, have been made parties defendant in the case, and have all answered setting up their respective liens; and to ascertain and declare the validity and priority of these contesting liens, is the matter now before the Court.

Ida M. Miller, wife of Olay Miller, by an answer filed, shows the family relation; that she, nor her husband, has a homestead; that she has selected $500 of the fund as hers of right in lieu of a homestead. She also claims she is entitled to have estimated and set over to her the present worth of her inchoate right of dower in the real estate of which her husband was seized, and the sale of which, in partition, makes up the fund in question. Her right to have the relief she asks is disputed.

1. Section 5441, Revised Statutes, provides: “Husband and wife living together * * * and no£ the owner of a homestead, may, in lieu thereof, exempt from levy and sale, real or personal property to be selected by such person, agent or attorney, not exceeding in value five hundred dollars. ”

The evidence is clear, and all of it to the effect that Ida M. and Clay Miller are wife and husband, living together as such, in this county, and neither of them own a homestead, and they have selected for themselves five hundred dollars of the fund, in lieu of homestead. The conditions defined and described in the statute are all present, entitling them to this benefit, and there does not seem to be any valid reason why they should not have it. The law allows it, and the court does give it.

2. The right to have the present value of the wife’s inchoate right of dower ascertained and paid over' to her, out of the fund, seems equally clear and in accordance with the law and the decisions of the courts. When Clay Miller became seized of an estate in the land partitioned, at that same moment of time right of dower, inchoate, vested in his wife, Ida M. Miller, and her right to have it, in some form or other, has never been divested. It is a valuable right, favored by the law, and cannot be taken from her except by her own act. It is subject, however, to any infirmity which the law attaches to the seizin; and the wife’s rights may, accordingly, be divested in the immediate realty, and vested in the changed form to which, by the processes of the law, it may be reduced. On this subject, Judge Brinkerhoif, in the case of Gregg v. Weaver, 6 Ohio St. 547, at page 552 uses the following language: “The right of dower in the wife subsists in virtue of the seizin of the husband; and this right is always subject to any incumbrance, infirmity or incident which the law attaches to that seizin, either at the time of the marriage or at the time the husband became seized. A liability to be divested by a sale in partition is an incident which the law affixes to the seizure of all joint estates, and the inchoate right of the wife is subject to this incident, and where the law steps in and divests the husband of his seizure, and turns the realty into personalty, she is, by the act and policy of the law, remitted, in lieu of her inchoate right of dower in the realty, to her inchoate-right to a distributive share of the personalty into which it has been transmitted.” In the same opinion Judge Brinkerhoif is careful to say, in holding the right of dower is divested in the realty and vested in the personalty: “In so holding, we do not subject this right at all to the will or caprice of the husband;”and it might, with equal propriety, and logic, be said: nor subject it at all to the claims or demands of the creditors of the husband. By the sale in partition-, the wife’s right of dower was transferred from the realty to the fund in question, and by the transfer the wife lost no rights, and the creditors of the husband acquired none; and in that respect they occupy the same relative position as if no sale had been made.

In a subsequent decision of the Supreme Court, 32 Ohio St. 210, where property, in which the wife had an inchoate right of dower, was sold and her contingent interest, which was held to be valuable, was liable to be lost and unavailable, the court held it was the proper and lawful thing to ascertain the value of the contingent right of the wife and pay it over to her presently; and holding that its present value could reasonably be ascertained by reference to recognized tables in connection with the age and condition of health of the wife and the husband. Tables have been formulated and recognized as correct by which the value of the contingent or inchoate right of dower can be found as readily and as accurately as can the value of dower consummate.- Here, again, we are unable to perceive any good or valid reason why the present value of the wife’s inchoate right to a distributive share of the fund should not be ascertained and paid over to her. The law allows it, and the court does give it, and its value is to be ascertained in the entire fund.

The remaining questions arise in a contest for precedence between defendant Anderson,and all the other answering defendants, claiming liens on the fund, as creditors of Clay Miller.

Defendant Anderson obtained a judgment against Clay Miller in 1892, for more than $4,000. which judgment is in full force and unsatisfied. This judgment, he claims, became a lien on the interest of Clay Miller in the real estate, from the partition and sale of which the fund arose over which the present contest is being waged, by virtue of an execution duly issued and levied thereon.

The interest of Clay Miller came to him by inheritance from a deceased relative, at a date subsequent to the rendition of the judgment. The levy was made on the 27th day of June, 1894. The entire tract of land was described correctly in the levy, but the interest of Miller was described generally as “all the interest of Clay Miller in said real estate,’’ and not more specifically or definitely. The precise extent of the interest was not stated. On July 30, the execution was returned by direction of Anderson, and no appraisement or offer to sell was made. Other processes, however, were in motion for the purpose of effecting a partition and sale of the land, instituted by other interested parties. All the other answering defendants claim liens^as-of a later date than June 27, by virtue of judgments obtained after that date. Confessedly they are of junior lien to Anderson’s, if Anderson secured a lien at all. So a proper-decision of the questions involved depends and turns upon the fact of Anderson obtaining a valid lien, of date June-27, by virtue of the levy of the execution issued on his. judgment of 1892.

It is claimed:

1. That Anderson’s judgment is void, because taken on default, on a petition for money only, when the amount claimed was not indorsed on the summons served. As sustaining this claim, the 2o and 40 Ohio St. are relied on. The authorities cited do not enforce this view. There the Supreme Court holds simply, that it is error to render judgment on a petition for money only, where the amount claimed to be due is not indorsed on the summons served in the case. In both of the cases the judgment was reversed on that ground, and no other; and in neither case did the-court hold the judgment void. We understand the rule to-be precisely the contrary. That where the record shows, affirmatively, jurisdiction in the court over the person and' the subject-matter of the action, as clearly appears in this case, the judgment entered is not void, but voidable only, at the instance of the prejudiced interested party. No steps-having beemftaken by the judgment debtor to avoid the judgment, it is, to all intents and purposes, valid and subsisting, and supplies a proper predicate for a writ of execution.

2. It is urged that the legal effect of Anderson ordering the return of the execution without first having an appraisal and making an effort to sell the property levied on, was an abandonment of the levy; and also, that the levy itself was void because of uncertainty in the description of the property and of the interest of Miller therein, and therefore, on both grounds, that no lien was secured. The first named contention is believed to be untenable and the second not sustained by the facts in the case. It was not necessary to appraise and attempt a sale in order to perfect the lien. That was accomplished by a seizure of the property in virtue of the provisions of the writ, and no appraisal or offer to sell was needed unless it was found necessary to proceed to a conclusion in order to realize on the claim. If other processes were found in motion which would as speedily and more economically accomplish the purpose, it was not only the right of the judgment debtor, but his solemn duty to call in his writ, cease to make unnecessary expense, and wait reasonably until the other forces at wTork accomplished the desired result, at the minimum of cost; and by so doing he would not waive or forfeit any benefits secured by the levy.

We are unable to conclude, from a consideration of the facts appearing in the case that the levy was void because of uncertainty in the description of the land or of the debtor's interest therein’. Indeed no complaint is insisted on as to the description of the land. That was definite and certain and accurate. This is practically conceded, and is true. Criticism, only, is made as to the description of Miller's interest in the land, and that is said to be so uncertain as to be void. The description is: “All of Clay Miller’s interest in the real estate, ” which is properly and accurately described, in connection with and immediately following the statement of Millers’ interest. That description or statement of interest cannot be said to be vague or uncertain in any sense. It is only very general, broad and certain. It certainly states all of the debtor's interest, and is sufficiently definite for all purposes of effecting a lien on that interest. More information as to the debtor’s interest — the precise extent and value of it — -would be necessary before a proper appraisal could be had or a sale made; but for the purpose of accomplishing a lien thereon the statement was sufficient. No person could be misled or injured by it, and no one of the answering defendants can be heard to complain.

Elza Garter, for Ida M. Miller.

J. D. Sears, for Anderson.

Meek, Gary & Parker, et ah, for junior lienholdefs.

We reach the conclusion that the defendant Anderson had a valid, subsisting judgment, which, in virtue of the levy made on Miller’s subsequently inherited real estate,on June 27, 1894, became a lien thereon as of that date, and entitled to be first paid out of the fund now in court, after the payment of the present worth of Mrs. Miller’s inchoate fight of dower, and $500, selected by her in lieu of homestead. An entry will be made in accordance with these views, and the junior lien holders are required to pay all the costs made since they were made parties.


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    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term 1869,)
    Before Smith, Swing and Cox, JJ.
    FRANK HELLER vs. ANNIE HOHMAN.

      Repairs on building,property of toife, on husband’s order — Wife’s Liability—
    A wife held to be personally liable for repairs to a building on her1 land, made under contract withlher husband, but with her knowledge and without protest from her — Sec. 3192, Rev. Stat.
    Error.to the Court of Common Pleas of Hamilton County.
   Smith, J.

The plaintiff in error seeks the reversal of a judgment by the court of common pleas sustaining a demurrer to the amended petition filed gainst him by the defendant, and ■dismissing the action at his costs.

The question presented, clearly and explicitly raised, is this: Is a married woman,who is the.owner of a lot of land upon which is situated a barn or shed, personally liable for. the reasonable value of work, done by a carpenter in the repair of such building at the special instance and request ■of the husband of the ownér, when the carpenter, supposing him to be the owner of the property, does the work and xeceives from him part payment therefor, and takes his,note . for the balance, which is still wholly unpaid, when the wife herself knew of the request so made,and being in possession of the property, knew when the work was commenced, and was present and saw it as it progressed, and never advised. Rim that she was the owner of the property, and made no ■objection by word or act to its being done for her benefit or ■on her account, or that she did not intend to pay.for it? Is «he liable for the balance due?

Independently of any statutory provision, we incline strongly to the opinion that on this state of facts the wife would be liable for the balance due on the work. The facts alleged point very strongly to the conclusion that the husband was acting for the wife as her agent.

But if this be not so, we think that under the provisions ■of section 8192, Revised Statutes, the husband must be held in this matter to have been the agent of the wife, and that ■she became personally liable for the debt thus contracted. That section .provides, in substance, that when a married woman is the owner of land on which is situated a building like this, and has knowledge of its repair or improvement, when the same is done under a contract with her husband and without her express objection, the husband shall be' deemed and held to be the duly authorized agent of the wife therein.

Smith & Kuhn, for Plaintiff in Error.

Edmund K. Stallo, contra.

It is true that this section is one under the mechanic’s lien law, and would authorize a lien to be taken out on the property of the wife under such circumstances. But in our judgment it is not limited to this. With the view of preventing fraud and injustice it goes further, and makes her personally liable on the contract made by her husband for repairs on her property, if she knew the work was being' dona, and made no objection thereto. The husband, by the terms of the statute, is made the duly authorized agent' of the wife therein. That is, as to the contract itself. It is a wholesome provision, and should be upheld by the courts.

The judgment of the court of common pleas will be reversed, with costs, and the case is remanded for further proceedings.


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    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan. Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    THE STATE OF OHIO ex rel JOHN C. SCHWARTZ, PROSECUTING ATTORNEY OF HAMILTON COUNTY, OHIO, v. MALCOLM G. DAVIES.

      Justice of Peace — Annexation of township to city — Right to act as-Justice of Peace in city.—

    It was not incompetent for the General Assembly to enact the statute (92 O. L., page 60), relating to Justices of the Peace, with its-important exception as to counties containing cities of the first, grade of the first class.
    Where one is usurping the duties of a Justice of the Peace in a-.township in which he has not been elected to that office, an action in quo warranto will lie against him.
    Where a Justice of the Peace for one township attempts to exercise the duties of the office in another township, injunction would be-the proper proceeding against him.

      Quo Warranto.
   Smith, J.

On April 29, 1896, a petition was filed in this case, averring, in substance, that the relator was the prosecuting attorney of this county, and that he brings this action for and on behalf of the state. That the office of justice of the peace for Cincinnati township, in said county and state, is ■an office of public trust and profit, under the constitution and Jaws of the state, the duties of which are to be exercised •within said township; that the defendant is a duly elected ■and qualified justice of the peace in and for the township of Millcreek, in said county, and that Cincinnati is a city of the first grade of the first class, and situated in Hamilton •county.

That Davies, for two months before the filing of the petition, has entered into and usurped said office of justice of •the peace of Cincinnati township, and does still usurp the ■same at Cincinnati township, and claims, holds and exercises the privileges, franchises, rights and jurisdictions of a justice of the peace of said Cincinnati township without having been electetd as such by the electors of said township, by therein administering oaths, taking acknowledgments, solemnizing marriages, issuing subpoenas, trying •actions, ail in said township, without any legal warrant, grounds or right whatever, to the damage and prejudice of the state, and against her dignity.

Wherefore the advice of the court is asked in the premises, and that the defendant be required to answer'by what warrant he claims to exercise and enjoy the office of justice of the peace of Cincinnati township, and that he be adjudged not entitled thereto.

To this petition the defendant demurred on two grounds: 1st. That the court has no' jurisdiction .of the subject of ■the action; and (2d), that the petition did not State facts sufficient to constitute a cause of action, and- the question submitted to us is whether the demurrer is well taken.

We understand the petition to contain clear and distinct averments that the defendant, who is a duly elected and. qualified justice of the peace of Millcreek township, in this1 county, but who has never been elected as a justice of the-peace of Cincinnati township, has during the time mentioned been claiming the right to and has exercised the privileges, franchises, rights and jurisdictions of a justice of the peace of Cincinnati township. If this be so, why,on the-allegations of the petition, is this not an usurpation of the-office of justice of the peace of that township? It seems-entirely clear to us that such is the case, and that on the-facts stated he has no right to do so, and that the relator is entitled to the relief sought. It is true that if he is a justice-of the peace for Millcreek township he has the right as such-to discharge certain functions anywhere within Hamilton county, under the provisions of section 1582, Revised Statutes. But these things he must do as a justice of the peace-of Millcreek township, and not as a justice of the peace-of another township in which he may perform them. Any other construction of the law would lead to absurd conclusions.

We suppose the real question in controversy between the parties is this, whether, if Davies was a justice of the peace of Millcreek township when the whole or a part thereof was annexed to Cincinnati township, and he resided in the part so annexed, he thereby became a justice of the peace of that township, and was authorized as such to discharge the duties thereof. But nothing showing or alleging any such facts is set out in the petition, and that question is not properly before us. If it was, it would seem to be settled adversely to the claim of the defendant by the provisions of the statute of March 9, 1896, (Ohio Laws, Vol. 92, 60), which provides that “no justice may be deprived of his commission until the expiration of the term for which he was elected; and except in counties containing a city of the first grade of the first class, and except in counties containing a city of the second grade of the first class, if a part of any township is attached to any other township, justices of the peace residing within the limits of that part of the township so attached as aforesaid, shall execute the duties of their office in the township to which the same is attached, in the same manner as if they had been elected for such . township. ”

Under this act, if it were not for the fact that by its express terms, it does not apply to counties containing a city of the first grade of the first class,if a part of Millcreek township has been annexed to Cincinnati township, and at the time of such annexation Davies, was a duly qualified justice for Millcreek township, and he resided in the part so annexed, he would practically become a justice of the peace for Cincinnati township, and be authorized to execute the duties of his office therein. But as has been said, the statute only applies to counties which do not contain a city of the first or second grade of the first class. We see no reason to doubt the power of the legislature to make such a provision as to the jurisdiction of a justice of the peace, and the validity of the original section applying to counties other than Cuyahoga, was upheld in 9 C. C., 26.

If the defendant is usurping the office of justice of the peace of Cincinnati township, there certainly can be no question but that this court has jurisdiction in a proceeding in quo warranto to hear and determine his right thereto. If he was, as justice of the peace of Millcreek township, attempting to exercise franchises or do acts as such in Cincinnati township, which the law did not authorize him to do, injunction might be the proper remedy. But that is not this case.

The demurrer to the petition will therefore be overruled, and unless a good and substantial answer is filed by leave of the court, judgment will be rendered in favor of the relator, finding that respondent has no right to hold or exercise any of the privileges; franchises, rights and jurisdictions of a justice of the peace in and for Cincinnati township.

Burch & Johnson, for the relator.

Outcali, Granger & Hunt, and Edward J. Dempsey for the respondent.


text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    January Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    MANSFIELD AND HAHN v. FRANKLIN FURNITURE COMPANY.

      Mutual insurance company — Power to cancel premium note — There is no statute authorizing the directors of a mutual insurance company to cancel the policy and premium note once executed, on the ground that the risk is undesirable, if the policy does not reserve such right. But where it has been done in good faith, and the insured has accepted the returned premium note, he is relieved from liability for assessments on such note by the receiver of the insurance company, appointed to settle up its affairs after it has become insolvent.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The only question in this case is whether the court of common pleas was right in sustaining a general demurrer to the petition of the plaintiffs.

The action was one brought by the trustees of a dissolved mutual insurance company to collect certain assessments on .a premium note given to the company while doing business, in consideration of a policy of insurance on property of the defendant, issued September 27,1888, for the period of five years from that date. The note is for $225, payable in such portions and at such times as the directors of the insurance company might require, to pay losses and expenses. It appears from the petition that the plaintiffs, appointed as trustees by the Supreme Court of Ohio, to close up the affairs of such corporation, had all the authority formerly possessed by the directors to make assessments on the premium notes held by the company, to pay losses and assessments, and that if said note of the defendant was properly assessable therefor, in view of the other facts stated in the petition, that the amount of assessments on such note of the -defendants is $100.00, which is still due and unpaid, and that proper demand has been made on the defendant therefor. But it further appears from the allegations of the petition that on October 25, 1890, which was long before the application for dissolution of such corporation was made, the board of directors thereof cancelled said policy and returned said premium note to the defendant, said cancellation being made at the instance of the insurance company, on the ground of the undesirableness of the risk. There was no allegation in the petition that under any other statute of the state, (and no such statute was brought to our notice), or by the terms of the policy itself, or by virtue of any contract between the parties, the insurance company had the right to cancel said policy, or in such event that the liability of the maker of the note for past or future assessments remained. But, on the contrary,for all that appears it was a case where the company violated its contract by terminating the same without authority to do so, which would, of itself, bar it of its right to recover on the note; but it also appeared that the directors of the company who were authorized to deal as to such matters, in good faith it must be presumed, without allegations to the contrary, returned the note, the evidence of the liabiliy of the defendant,who accepted the same, and this, in the absence of the other stipulations to the contrary, -was a compromise .and adjustment of the matter.

We are, therefore, of the opinion, for these reasons and those stated in the opinion of the judge of the common pleas who decided the case, that the action of the court in sustaining the demurrer to the petition was right, and wilt be affirmed.

(Affirmed by Supreme Court, without report, March 31, 1896.)