text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    STATE ex rel. O’DONNELL, etc., v. ADAM SCHAFER et al.

      Election Laws — Ballots failing to specify term—
    (1) . Where several members of a board are to be elected at one election, but for different terms of office, the ballots must state to which term the candidate is elected, otherwise the ballots will be declared void, although'the entire election may be invalidated thereby.

      Adjournment sine die not resignation—

    (2) . An adjournment of the board sine die does not amount to a resignation of the members participating in such action of adjournment and departing.
    Quo Warranto.
   Parker, J.

This is a proceeding in quo warranto, by the State of Ohio on the relation of O'Brien O’Donnel], which by permission of the court heretofore granted is prosecuted in the place and stead of the prosecuting attorney of said county, for the purpose of determining the right and title of Adam Schafer and H. E. Biggs, as members of the board of education of Waynesfield township, Lucas county, Ohio, which office thsy claim to hold and exercise; and it having been made to appear to the court that the prosecuting attorney of the county was so interested as not to be qualified to commence proceedings, O’Brien O’Donnell was appointed to act in his place and stead. The case is submitted to us upon application for leave to file a petition; and while the petition does not set forth all the facts of which I may make mention, yet, by agreement of the parties, these facts have been brought to the knowledge of the court, and any amendment that may be required to the petition in order to make the record right will be made by leave of the court.

It appears that at the time of the spring election, in 1899, there were three positions upon the school board of that township to be filled: One in consequence of the expiration of the term of Charles Bodd; another in consequence of the expiration of the term of J. H. Binkley, and another because of a vacancy created in the board by the resignation of E. M. Cook. Cook had resigned some time before Louis Dennis had been appointed in his place, but under the statute this appointment would only be effective until the next spring election, in 1899, and, therefore, it became necessary to elect three members to fill the board. The time of Cook would have expired in the spring of 1900, and, therefore, there were two to be elected for the full term of three years and one to be elected for the partial term of one year.

It appears that the members of the democratic party of the district held a caucus at which they nominated Louis Dennis and Charles Rodd for the full term, and Adam Schafer for the partial term of one year — the remainder of the term resigned by Cook; and that the members of the republican party of the district also held a caucus and nominated G. B Mouen and Dean Myers and H. E. Riggs, but without designating the term for which they were nominated, and in certifying these nominations to the board of elections, the officers of these caucuses certified in accordance with the action so taken.

But the board of elections failed to designate upon either the republican or democratic tickets the terms for which these candidates were .standing, so that the democratic ticket read: “District No. ?■, for member board of education, Lewis Dennis; for member of the board of education, Charles Rodd; for member of the board ofjjeducation, Adam Schafer,” and the republican ticket readjin the same way, naming Mouen, Myers and Riggs.

At the election Mouen received 150 votes; Myers, 169 votes; Riggs, 185 votes, Dennis, 178 votes; Rodd, 240 votes, and Schafer,^295 votes. It will be^observed that the candiates upon the democratic ticket received a greater number of votes than were cast for the candidates on the republican ticket whose names stood opposite to theirs respectively, and it was attempted to give some'effect to this circumstance, upon the theory that since the name of^Dennis 'was opposite to that of Mouen, therefore Dennis was a candidate against Mouen, and, having received a larger number of votes, he was elected and Mouen defeated; and so of ■Rodd, and so of Schafer. But we find no authority for determining the matter upon this theory. If any were elected at this election, it would seem to be the three who had the highest number of votes, and these three would be Riggs, Rodd and Schafer. The question arose as to who was elected, immediately after the election, and various opinions seem to have been entertained by the’parties interested.

On April 17th, the old board met and transacted some ■business, and then- — -as the record states- — adjourned sine die; and after a recess of ten minutes, the clerk called the meeting to order, and Schafer, Rodd and Riggs being present, were inquired of as to whether they had received their certificates of election and whether they had filed certificates of the costs of election,etc., and, answering that they had, Schafer and Rodd were sworn in as members of the board, and it appears that Riggs had already taken his oath before an officer authorized to administer the oath of office, as he might do under the statute. Thereupon these persons acting as members, and the three holding over, entered upon the transaction of business. They first undertook to organize by electing a president, and ultimately their ballots resulted in the election of Rodd as president of the board. They also elected Schafer as treasurer of the board; and when they came to the election of a clerk they •were evenly divided, three voting for one candidate and 'three voting for another, so they did not elect a clerk, and they thereupon adjourned without transacting any further ■business. Subsequently they attempted to hold meetings, 'but failed to obtain a quorum. Soon after ihis meeting the three holdiug over — as to whose title there is no question- — ■ •and Rodd and Hatch, who were members of the old board ■of education — Rodd having stood for re-election — met and organized by electing a chairman of the meeting and subsequently a president of the board,and then they proceeded to appoint Louis Dennis a member of the board, to nil the vacancy which was assumed to exist; proceeding, as it will be observed,upon the theory that there had been no valid election in the spring of 1899, and that all members of the old' board were holding over, except Dennis, whose time had* expired by limitation, he having been appointed to fill the-vacancy caused by the resignation of Cook. I should have-said that certificates of election had been issued to Schafer and to Riggs, and I presume to Rodd also — though it is not shown here — and the following certificate had been filed with the board of education:

‘ ‘ Canvass of the vote cast at the municipal election held in-School District No, 2, Village of Maumee, Waynesfieldtownship, Lucas county, Ohio, on the third day of April,. 1899, for members of the board of education.
District No. 2,
We hereby certify that:
G. B. Mouen had 150 votes for member of Board of Education District No. 2.
Dean Myers had 169 votes for member of Board of Education, District No. 2.
H. E. Riggs had 185 votes for member of Board of Education, District No. 2.
Louis Dennis had 178 votes for member of Board of Education, District No, 2.
Charles Rodd had 240 votes for member of Board of Education, District No. 2.
Adam Schafer had 295 votes for member of Board of' Education, District No. 2.
Adam Schafer, Charles Rodd and H, E. Riggs, having-received the highest number of votes cast, are hereby declared elected.
There being nothing to designate who is entitled to the-long or short term we have made no decision in regard to-the same.
April 4, 1899.
J. M. Wolcott, J, P.”

After this meeting, in which Riggs and Schafer participated and in which they elected a president of the board,. ■ certain of these members came together again and under•took to agree and arrange that Schafer should have the long term — in consideration of the fact that he had received •a greater number of votes than Riggs; thatRodd should also have the long term, and that Riggs should have the short term — of one year.

We find no provision of law authorizing them to proceed 'in this way; no authority vested in any board or tribunal or person, other than the electors of the district, to determine in a case like this what person shall have the long term and what person shall have the short term. The statute provides this method for the first election in a district. It is also provided by the statute that in case of a tie vote the result may be determined by lot; that under circumstances like these, where the board has been filled, and afterward it becomes necessary o elect for terms of different lengths, there is no method provided by law for determining which shall have the long term and which the other except for the •electors to designate upon their ballots whom they desire for the different terms, and that was not done in this case.

The question is, therefore, what, if any, effect had this ^attempted election at which these persons were voted for but the terms for which they were to be chosen were not ■designated on the ballot. Section 2966-32, Revised Statutes, provides as follows:

‘‘ All ballots shall be printed on the best quality No. 2 'book paper, in black ink, and with the exception of the heading, which shall be in display, in brevier type, the name or designation of the office in lower case, and the name of the candidate therefor in capital letters, with a •space of at least one-fifth of an inch following each name, ■etc,”

Our attention is called to decisions of the courts of Illinois and Pennsylvania and Nebraska upon cases like this and under statutes containing substantially the same provisions as to the designation of the office, and itseems from those decisions that the designation of the term is a part off that which is included in the words “designation of the-office.” We think these decisions lay down correctly the-law applicable to this case. The office may be, strictly speaking,a member of the board of education; but if it is for one year or for three years, we are of the opinion that the-term also must be designated as a part of that required to-appear under this section of the statute, and, independent of the statute, we think that a ballot that failed to designate the term, where there were different terms to be filled, would be void for uncertainty.

I read, briefly, from the case of Samuel Page v. John Kuykendal, 161 Ill., 319, as reported in 32 L. R. A., 656. This case arose over the election of members of a board of ed - ucation, and it appears that Page, Kuykendal, Rollings and-Mott were voted for; that the whole number of votes cast for them respectively were: Page, 52; Kuykendal, 13;. Rollings, 50, and Mott, 11, but that all of the ballots excepting nine failed to designate the terms for which they were to be chosen, and these nine were cast for some of those who received less than a majority of all the votes cast; and the supreme court of Illinois held that the ballots which failed to designate the terms were void, and that they should be cast out and not counted, and they proceeded to judgment accordingly. In the course of the opinion Carter, J',, says:

“Appellant contends that as the only office to be filled at. this election was school director, it was not necessary that the office should be designated on the ballot to make the intention of the voter clear. It is plain, however, that if’ this contention were conceded, notwithstanding the statute requires such designation, it is still wholly uncertain which of the two persons whose names arson the ballot,the elector intended to vote for the long term and which for the short term. This choice could be determined only by the voter himself as expressed by his ballot, and when the ballot wholly fails'to express the choice it is void and cannot be-counted.”

And, further along, he continues:

“It is plain that where there are more offices than one to. be voted for, ballots making no designation of the office will-tie insufficient for uncertainty, and where there are two officers to be elected for different terms, ballots which do, not designate the terms should be rejected.”

To the same effect are cases found in 96 Penn. St., 222, and in the same volume, at page 224; 152 Penn. St., 544, and 5 Neb., 165; and we find no authorities holding the contrary doctrine. Indeed, we cannot see how the contrary doctrine could well be held; if the electors fail to designate-the term upon their ballots, the election must fail necessarily because of the impossibility of determining their purpose and their choice.

It is suggested here, in argument, that in the cases cited to which I have referred, a part only of the ballots were invalid on account of this uncertainty and a part were valid,, and that, therefore, there was an election in those cases-which was recognized as a valid election by the court; and it is said that those cases are not applicable and ought not to be given effect here, because of the circumstance that here, applying the rules laid down in those cases, all of the-ballots were invalid, and, therefore, that it would be necessary in applying those principles to hold that the election here was altogether futile — 'that there was no election — and that those principles ought not to be applied where the result would be the setting aside of the election altogether. But the ballots were cast out in those cases because they were void, and we cannot discover that it helps the case of' the defendants here that all instead of a part only of the ballots were void. Naught times naught is naught, and no-matter how many times multiplied still continues to be naught. If the ballots were invalid, that seems to be the end of it; they cannot be made valid by the circumstance that they are all equally invalid; and we think the necessary result is that there was no election, and that, therefore,. under the provisions of section 3908, Revised Statutes, Rodd and Binldey will hold over.

O’Brien O’Donnell, for Prosecution.

It is said that because the old board met on the 17th and adjoured sine die,and thereupon the three members as to whose holding there is no question remained and organized with Rodd, Schafer and Riggs, that some effect should be given to that action; that it amounted in effect to the resignation of these persons who participated in the action of adjourning sine die and departing, and that it also amounted in effect to the appointment to their places of Riggs and Schafer, who remained and participated in the business of electing a president, etc.

In the first place, there was no purpose on the part of anybody to resign or to appoint anybody. These persons whose terms had expired were then proceeding upon the notion that Riggs and Schafer had been elected, and they were acquiescing in Riggs and Schafer taking part as mem hers of the board because they supposed they had been elected. The adjournment sine die did not amount to a resignation on the part of those who departed any more than on the part of those who remained. It was a proper action for the old board to take. In any event, it would not amount to anything more than adjourning to the time cf the next regular meeting as fixed by the statute and by their rules; and we think there was no vacancy within the meaning of section 3981, Revised Statutes, and, therefore, it would not be competent for them to make a valid anpointment of anybody to take the place of the old members. The old members held over (there having been nc valid election) under the statute. There was no vacancy excepting which existed by reason of the resignation of Cook, whose place had been filled by the appointment of Dennis,and which was subsequently filled by the five members,by the reappointment of Dennis. ¥/e think that those members constituted a legal board of education for that township district, and, therefore, the judgment of the court should be and will be that Riggs and Shafer shall be ousted, and judgment will go against them for the costs.

There is a prayer that the others shall be inducted into the office, but we do not understand that that is a proper order to be made in a case presented in this way — on the relation of a party other than the one claiming the office; but they are in ■office; they are the lawful incumbents, and will not be interfered with, and the judgment will be entered, as stated.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    (Sixth Circuit — Erie County Ohio Circuit Court
    January Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE CITIZENS NATIONAL BANK v. MARY WEHRLE ET AL.

      Fraud — Inadequacy of price paid—
    ■“To justify an inference of fraud from the inadequacy of the price alone, the consideration must be so clearly below the market value as to strike the understanding at once with the conviction that such a sale never could have been made ia good faith.

      Application of partnership property• to pay individual debts by way of preference as against firm creditors—
    Members of an insolvent partnership have a right, with mutual consent, to use the property of the partnership to pay firm debts in preference'to partnership debts although they are aware of their insolvency and nothing is left to pay the paitnership creditors.

      Informality of transaction — No batch of fraud—
    The informality of a transaction speaks rather in its favor as against a charge of fraud, for one of the batches of fraud recognized by the authorities is the formal manner of accounting by making written receipts and writing out contracts and having everything done in so wonderfully precise form.

      No money passing as proof of trust relation—
    It cannot be inferred that the sale was a sham and only intended to place the property out of the roach of eredifcorsjbecause no money passed, where the amount of the purchase money is credited on the note to satisfy which the property is transferred to the creditor, although the transaetion”was between relatives, the indebtedness being shown to be a bona fide claim.
    Appeal frcm the Court of Common Pleas of Erie^county.
   King, J.

This case is tried in this court on appeal from the judgment of the court of common pleas. The pebitionjjj is entitled “Petition to set aside fraudulent conveyance, ” and it alleges that the defendants Mary and Elizabeth Wehrle were at one time partners doing business in the city of San-dusky under the name of The Wehrle Coal Company, and that these persons beoame indebted to the plaintiff and to sundry other persons named in an amount averred in the petition to be $35,000; that on December 15, 1896, these persons, together with the defendant Andrew Wehrle, were so indebted to the plaintiff and others, and that on that day, with intent to hinder, delay and defraud the plaintiff and other creditors, they executed and delivered to the defendant August Schmidt, Jr., a certain pretended bill of sale whereby it was attempted to convey to August Sohmidt, Jr., all the personal property and book accounts hereinbefore mentioned and belonging and possessed by and in the possession of the defendants Mary, Elizabeth and Andrew Wehrle, and on the same day delivered all of the said personal property to said Augast Schmidt, Jr.

A further allegation contained in the petition is that the said conveyance to Schmidt was made in trust for the purpose of preferring certain creditors of the Wehrle Coal Company and Andrew Wehrle, and that by the terms of the trust August Schmidt, Jr., in consideration of the sale to him of said personal property, agreed to pay off certain indebtedness of The Wehrle Coal Company. The terms and particulars of the trust the plaintiff is unable to further state. The petition also avers that on the same day the defendant Mary Wehrle, for the purpose of hindering, delaying and defrauding the creditors of the said firm The Wehrle Coal Company, made a pretended conveyance to the defendant W. H. A. Read, who was an attorney-at-law and also the attorney for the said Mary Wehrle, of oertain property, to-wit: oertain shares of stock held and owned by Mary Wehrle in a corporation known as The Sanduskv & Islands Steamboat Company, said shares of stock being worth at least $10,000, and avers now that both these conveyances, the one to Read and the one to Schmidt, Jr., were without any consideration,and were made for ‘the purpose of hindering, delaying and defrauding creditors of The Wehrle Coal Co. in the collection of their debts. The action is brought on behalf of the plaintiff, the bank, and all the other creditors who may join in the case, and the prayer is that the sales and conveyances be set aside and a trustee appointed to take oha'rge of the property.

Answers to this petition were filed by the defendant Sohmidt and by the defendants Mary and Elizabeth Wehrle denying all the allegations of fraud and the allegations that the conveyances were made with iutent to hinder, delay and defraud creditors,and averring that these convey anees were made on the fourteenth of December instead of the fifteenth,fer a valuable consideration and in good faith, and were valid.

The action is brought ostensibly under section 6344, Revised Statutes, but perhaps may be sustained under seotion 6348. Section 6343 provides:

“All assignments in trust to a trustee or trustees, made in contemplation cf insolvency with intent to prefer one or more creditors, shall inure to the equal, benefit of all creditors, in proportion to the amount cf their respective claims, and the trust arising under the same shall be administered in conformity with the provisions cf this chapter.”

Section 6344 provides that “All transfers, conveyances, or assignments, made by a debtor or procured by him to be made with intent to hinder, delay, or defraud creditors, shall be declared void at the suit of any creditor.”

The evidence in the case submitted is quite voluminous, and it has been discussed by able counsel cn beth sides, .and we have given it suoh consideration as we thought the importance of it demanded.

Briefly stated, the main facts of this transaction are: The coal business oarried on by The Webrle Coal Company has existed in the city uf Sandusky for fifteen or sixteen years. It has had various proprietors. It has been owned and carried on by August Schmidt, Jr., by Andrew Wehrle and by Andrew Wehrle, Sr., and by Mary Wehrle, and by Mary Wehrle and Elizabeth Wehrle, and was owned and carried on at the time of these transactions by Mary Wehrle and Elizabeth Wehrle. Andrew Wehrle, Sr., owned and carried it on about two years before this transaction, and about a year before he died he conveyed it to his wife, Mary Wehrle, and she owned it for something more than a year. In January, 1896, Andrew Wehrle, Sr., died, his wife at that time' being the owner in her own name of the coal business, and soon after he died the defendant, Elizabeth Wehrle, who is the wife of Andrew Wehrle, Jr., bought an interest in the business, which is said here to have been a half interest, and probably was, and some time about February, 1896, the business was owned and carried on by these two women, Mary Wehrle, the widow of Andrew Webrle, Sr., an aged lady who resided on Middle Bass Island, and Elizabeth Wehrle, the wife of Andrew Wehrle, Jr., who resided in Sandusky; that at the time of Andrew Wehrle, Sr.’s death he was also the owner of other proper-^ ty, and was interested in a partnership under the firm name of Andrew Wehrle & Son. After his decease application was made to the probate court by one of the parties interested, either the administrator or the surviving partner, for an appraisement,and an appraisement was had, and the son, the surviving partner, elected to take the business and executed a bond as provided by statute in the sum of $110,000 for the payment of the debts of the firm, which was approved by the court, and for the assets of the firm which were turned over to him, the undivided half which he did not own, which was appraised at $14,652.04, he made his promissory note to the administrators of the estate. His name is Herman Wehrle, and he is not a party to this action. He gave his promissory note, with approved sureties, and the note was a joint and several note without indication that any of its makers were sureties for the others, and was signed by Herman Wehrle, by Mary Wehrle, his mother, by Andrew Wehrle, his brother, by Catherine Wehrle, his wife, by Elizabeth Wehrle, Andrew’s wife, and by August Grief and Joseph Rauer, persons who are nonresident of the state, but relatives, I think, of Mrs. Herman Wehrle. The note ran nine months from its date, and matured on December 14th, and became legally due on December 17, 1896, with interest. The will which Andrew Wehrle, Sr. left appointed his wife Mary Wehrle as the executor of it, but shortly afterwards August Schmidt, Jr. was appointed administrator of the estate of Andrew Wehrle to act with this executor. He gave bond and qualified, and together with Mrs. Andrew Wehrle executed this trust and they were in the execution cf it on the fourteenth of December, 1896.

I should say that the business of the execution of this trust, so far as there was any business, was attended to by-August Schmidt, Jr., as he was an active business man residing at Sandusky, and Mrs. Wehrle was of old age and feeble health, and perhaps generally unfitted for attending to business matters. Shortly before this note matured Mr. Schmidt placed it in the Third National Exchange Bank for collection, and the customary notices were sent to all the makers that it would mature on December 17th. On December 12th, Herman Wehrle, the maker, appeared in Sandusky and saw Mr. Schmidt, and told him he could not pay it when due, and he was informed by Mr. Schmidt it must be paid when due, that that was his understanding of the situation; that it would be his duty as administrator to see that the note should be collected; he had no authority to execute another agreement by which the time of the payment of the note should be extended for a definite period. Herman, saw Andrew Wehrle and his wife Elizabeth, and probably he sent word to Toledo for an attorney who had acted for the family, and especially for Mary, his mother, Mr. Read, and he came down. The parties, however, accomplished nothing on that day and went to their several homes,and on Monday, December 14th, they returned again. They had the information from Mr. Read, as well as from Mr. Schimdt, that the Lote when it matured, would have to be paid or be collected. There was nothing in that statement, we think, which was prejudicial to anybody’s rights. It was simply a statement that in the opinion of the attorney the administrator could not grant any extension of time. If the attorney gave that sort of advice unquestionably it was correct. The administrator could not have extended the time of the payment of that note. It would have released the sureties,and he had no authority at law to do it. There might have been delay in the process of a suit for collection but that would be another matter. On Monday the parties again met, including Mrs. Mary Wehrle, who came over from the island, and there was a discussion of what was best to do-and what would have to be done,and what would be the result if they did not do it.

It was suggested in the talk amongst them that if the note had to be paid and it was not paid on December 17th, an action would be commenced, levies, executions or attachments or something would be made upon Herman Webrle’s property. That would unquestionably result in time, and Mrs. Wehrle was very much exercised beyond doubt to think that her son Herman’s property would be disturbed, or that any of it would be sold upon execution, or his business interfered with by the officers of the law. He had only been in business running this far for about nine months. He had upon his shoulders a very large indebtedness,nearly equal to the value cf the property he had taken, the difference being the note in suit principally, and she seemed very much worried to think that there should be any interference with Herman Wehrle’s business. Some suggestion was made to her by persons intimate with her but not connected with the family — Mr. McFall, for instance, was one — that they had better sell out their coal business and pay that note, and that was talked over in Sandusky,and the women who owned it had agreed that it should be done, and their talk with their attorney aboutjt whom they sent out to negotiate the sale was that it should be sold for the amount cf the note if that sum could be procured. He drew up a bill of sale with a blank for the purpose of inserting the name of the purchaser, in which he expressed the consideration at the face of the note, and went out and undertook to sail the property. He applied to Mr. Eugene McFall, and in the course cf time he applied to Mr. Hunt who had been the bookkeeper in this concern for a great many years; he applied to Fred Zollinger, and through him to J. C. and Frank Zollinger, and he applied alsc to Lawrence Cable, each of whom had expressed an opinion that they would like to buy the business. Mr. Cable desired tc buy it to put bis sons in, Mr. Fred Zollinger desiring to interest himself in the purchase in order to put F. T. Zollinger in the business, and Mr. McFall desired to interest himself with others in the purchase of it mainly perhaps for the purpose cf controlling coal that should go to the,boats in which he was interested, and Mr. Hunt, who had been in that business and no other, desiring to buy it in order to have a place where he could work, although he had but little capital that he could invest. Nothing was said to August Schmidt about buying it, but on the evening of Deoember 14th, Mr. Read did suggest to August Schmidt that he understood he had been in the business before and why should not he buy it. Very little was said about it. Mr. Schmidt did, however, talk the matter over a little with Hunt, with what result we are not fully informed. He went to the office, and with Hunt went over the books of the firm and made an estimate of what he considered the property worth. The next morning Mr. Read had an appointment with the Zol1 ingers at half past 8. I should say that he had been offered $10,000 for this property by Mr. Eugene McFall. In the morning he went tc the bank and saw the Zollingers, and they made him an offer of less than $10,000.

He told them there was a higher offer made and he should not consider it, and they considered awhile and made him an offer of $10,000. He told them there was an offer of $10,000 ahead of them, and the first offer would be first considered. They then considered the question of raising it and finally told him they would not raise the offer of $10,000. Pending that, however, Mr. Hunt came in and either made an absolute or conditional offer of $10,000. At any rate Mr. August Schmidt appeared upon the scene about 9 o'clock and he offered $10,250,and Mr. Hunt said in the course of talk that his offer was really intended for Schmidt, or else he said that if they sold the business to Mr. Zollinger, or to Mr. Cable, or to Mr. Schmidt, he would interest parties in its purchase at a price of $10,250. (All of that, however, is largely immaterial except as throwing light upon what was done towards selling the property.) The parties were all seen by Mr. Read and the proposition of $10,250 submitted to them, and they said they would not raise it; $10,250 was all the property was worth and they would not think of paying any more, and Mr. Read thereupon sold the property to Mr. Schmidt for $10,250.

He first inquired before he did whether Mr. Schmidt could pay him. He inquired of the cashier of the bank,and the cashier told him Mr. Schmidt’s check for that amount would be accepted by the bank and paid. When the time o ame to pay the money on the note,Mr. Schmidt being in the bank and the cashier being present, Mr. Schmidt f*d to the cashier without writing a cheok “You pay Mr Reed $10,500 and charge to my account.” Mr. Read said that the parties whom he represented did not want the money, that all they wanted was if they received it they should turn it directly back to Mr. Schmidt as administrator of the estate desiring to pay it upon this note which would be due in two days from the time they were speaking, and thereupon the note was produced, it being in the bank, and by direction and agreement cf all the parties that were present Mr. Read, representing Mary Wehrle and Elizabeth, the wife of Andrew Wehrle, and Mr. Schmidt, who was the acting administrator, Mr. Zollinger, the cashier, wrote upon the ba'ck of the note an indorsement that there was paid on that day $10,250, and the note without handing to Mr. Schmidt was left in the bank where it was.

Mr. Schmidt had no account as administrator at that bank or any other. No money was in his hands belonging to the estate, and it is claimed here that the estate was insolvent, although we are not furnished with the figures bearing upon that; that the only property which this estate had available for the payment of debts was this note for $14,652.04. No money was counted out or handed to any of these parties and no account was therefore opened in the name of Schmidt and Mrs. Wehrle as administrators. This money was charged to Mr. August Schmidt in as much as administrator he had received the benefit of a payment of $10,250, and that the administrators were chargeable with that sum of money,and that to enter it upon the note which was to remain in his possession was a sufficient entry cf the transaction, and that is the way it occurred.

Now there are numerous other things which may be referred to. It is olaimed that this transaction should be set aside first, because it was a transaction among relatives; second, it was in secret and not open and public; third, it was a sale of all of the property of the Wehrle Coal Company,and also a sale at an inadequate price, and lastly, and-principally, because no mcney passed between the parties, and that nothing was done except to minute the transaction upon the back of the note,and it is claimed this is sufficient evidence that the whole thing was a fraudulent scheme .to put the property out of the hands of its owners for the purpose cf hindering and delaying the creditors cf the firm-from collecting their debts.

Now, as to thes3 parties being relatives, so far as Mr. Schmidt is concerned, although he was a relative and co-administrator, he had very little to do and knew very little in fact about the coal business, this coal business in particular, at and for some years preceding this sale tc him. He testifies that he had not been for some two or three years at least on gcod terms with Andrew Wehrle who managed it, and had nothing whatever to do with him, and he knew nothing about his business, knew nothing in fact about the condition it was in. He examined the books, but he did not ascertain the amount of the firm’s indebtedness. He did ascertain, however, and got enough information there to probably inform him that the firm was indebted, but the amount he did net ascertain. He says the two principal accounts which are here claimed and which are here shown to be the two principal accounts, that of the Superior Coal Company and the Rhodes & Beidler Goal Company, amounting together to over $15,000, appeared upon the bocks, and he saw them, but they appeared not to have been balanced, whether by cash entry or an entry of the giving of notes he does not say; he says he do9s not knew.

But we find that he knew the firm was indebted; we also find he did not know how much they were indebted. We do-find, for it is a perfectly transparent fact in the case, that he knew that these parties were .indebted to him as administrator of the estate of Andrew Wehrle,deceased,in the sum of $14,65.04 and the interest on it, being over $15,000. He knew practically and substantially the amount of money which Mary Wehrle would get from the estate, and if the testimony in the case is to be believed,that was nothing except her year’s allowance and such personal property as might be set off to her. He knew the condition in which Herman Wehrle was situated. ■ I should have said Herman Wehrle was saying and had been since he first received the notice that he could not pay this note when it became due, that he had not any money to pay it with. He knew his condition and how his business was situated, and as I say,he knew that the two Mesdames Wehrle owed this note, and that neither of them had any means with which they could pay it aside from this coal business. As to what he may have known about these two persons who resided in another state, in St. Louis, I think, it is said they live, the evidence does not disclose, but the parties upon this promissory note at the time when this sale was made were at least doubtful. No money could be made out of it except by process of law, and how much could be made at the end of an execution nc one could tell; it was mere conjecture. He knew that. There is nothing in his relationship to the parties, and nothing in his knowledge of his condition and circumstances, whether they owed or did no owe firm creditors, to in our judgment impeach the validity of this transaction and it brings me down to really twc other questions, whether there is an adequate consideration,and whether the manner of its accomplishment, the entering cf this credit, is a sufficient indication of its fraudulent character to authorize us to 9et it aside.

Mr. Schmidt testifies as to the basis upon which he made his offer cf $10,250. He made a memorandum himself putting a value upon all of the artioles. He thought the office was worth $500.00. There is no evidence in the case to show that it was wcrtn any mere, and a fair preponderance of the evidence would indicate that the office was not worth over $400. He gave the horses at $200,and there isnoevidenc tc indicate they are worth more than $200, hut there is some evidence to indicate horses like those might have been purchased for Jess. He gave the carts and wagons at $100, and there is no evidence to indicate they were worth mere than $100; they are old carts and wagons. A pair of scales is put dewn at $100, and there is only the testimony, of one witness who says those scales might be purchased and set up for $75. There is hard coal which he put down at $5 per ton, estimates at 865 tons when an investigation thereafter shows there was 350 tons. The soft coal is put down at $2, and the oannel at $2.50, and there is no evidence that it is worth any more,or that there was any more of it than is estimated. There was $669.28 in the bank, and the derricks, which he put in at $1,000. This estimate makes the property of the coal company, the tangible property, about $4,600. Then he added up and computed the amount of the aooounts upon the books and sorted them off inte good, far and poor. The good accounts footed up $7,750, and the poor accounts about $4,600. The poor accounts include claims for rebates on freight aocounts with two railroads, one in the hands of a receiver. We are not prepared to say from the evidence whether these accounts were good — I mean by that, legal acoounts — whether they were such claims as payment could be enforoed cr not from the meager evidence in the oase before us. The total face of these accounts as found by Schmidt, including the property, footed up about $16,000, but, as I have said, the tangible property was only $4,600, and the rest of that amount was made up of aocounts against divers and sundry people living here and elsewhere; and on the basis of that Mr. Schmidt, as I say, made an offer of $10,250.

The circumstances I have related show that the other parties named — and there is nothing to show they were at the time at least in connivance at all with Mr, Schmidt — 'take Mr. Cable, take the Zollingers who had expressed a desire to go into this very business — they had taken a bill of these items which Mr. Read himself furnished, in which the values were placed at over $17,000, and investigated it for themselves, and they said they would not pay for this business more than $10,000. On that we conclude that there is no suoh inadequacy cf price as raises any suspicion of fraud in this sale. The inadequacy of prioe that is sufficient to constitute fraud is laid down in Bump on Fraudulent Conveyances, page 46, and a case in 84 Iowa, page 77. In Bump it is said:

“To justify an inference cf fraud from the inadequacy of the price alone, the consideration must be so clearly below the market value as to strike the understanding at once with the oonviction that suoh a sale never could have been made in good faith.”

That brings me then to the last question which I want to consider in connection with certain propositions of law that have been argued, whether the manner in which this sale itself was completed is sufficient to authorize us to hold that it was a nullity, and we shall look at it as we think it-was viewed by the parties who were engaged in it.

Concede that Mrs. Wehrle desired to save her son Herman. Concede that she and the other Mrs. Wehrle as a coal company were indebted beyond the amount of their property, and upon this point we find they owed at least $16,000.j of debts,and they had this property that was turned out to Mr. Schmidt for $10,250, and they had no more. They owed also this note cf whioh I have spoken, and the transaction vas as I have related. Was there anything in it that was unnatural or unreal? On the contrary, we think it was an entirely natural transaction in and of itself. That there was nc more form pursued is certainly an element in its favor, for cne of all the badges of fraud that are spoken of in the books is the formal manner of accounting'by making written receipts and making out contracts and having everything done in such wonderfully precise form when business men take a much more shorter cut to reach the same end. Mr. Read said he did not want to handle this money for his clients; that that money was tc be paid to Schmidt as executor, and to be indorsed upon the note upon whioh they were indebted. Thereupon all parties agreed it should be indorsed upon the ncte, and thereupon the indorsement was made.

Now that indorsement had some effect. It had the effect to release upon that note to the extent of $10,250 every single maker cf it, and none of the makers of that note are parties in this action except the two Mesdames Wehrle and Andrew Wherle, Jr. It had the effeot to release four of the makers upon that note that can net be bound nor prejudiced by any judgment that might be rendered in this action. It may have had a further effeot. It may have had the effect to have authorized the executors of this estate to delay some action whioh they might have commenced, and to have the benefits of some property which they might havereaohed on the seventeenth day of December if the ncte had not then been paid, or so much of it paid.

But it is said that these partners have taken the property which they owned tc pay an individual liability instead of appropriating it to pay partnership creditors. But can they not do that? It seems to us that the authorities upon that subject are simply overwhelming, If we went no further than this state we should find an authority for it. But reverting for a moment to the question cf the consideration. I want to refer to section 204 of Bump on Fraudulent Conveyances. I use this, although I may probably find it elsewhere, because this book has been cited to us by counsel on both sides.

“The consideration must arise at the time of the transfer. It is not, however, necessary that an aotual payment shall be made. A promise to pay, or the giving of securities will constitute a party a purchaser. A check given in good faith on a banker having funds to pay it is prima facie payment if accepted as cash, although its payment is subsequently suspended on account of a controversy concerning the property. A transfer may be made for an annuity as well as for money in hand. An existing debt or liability, either as indorser or surety, is sufficient. The debt may also be unliquidated, etc.”

Again, in the same author we find in section 170, relating to this subject of preference and the right of the party to use his own property as he pleases in the payment of his debts:

“A preference may be given and received for the express purpose of defeating an execution, for the mere intent to defeat an execution does not of itself constitute fraud. The payment of a just debt is what the law admits to be rightful, and is not, therefore, fraudulent, either in law or in fact. The preferred creditor cannot be affected injuriously with notice of the debtor’s intent to prefer, and thereby defeat an execution, because the purpose is honest, and such as the law sanctions. This is no delaying or hindering within the meaning of the statute. It does not deprive other creditors of any legal right, for they have no right to a priority. One creditor of a failing debtor is not, under the statute, bound to take care of the others. In such case, if the assets are not sufficient to pay. all, somebody must suffer. It is a race in whioh it is impossible for every one to be foremost. He who has the advantage, whether he gets it by the preference of the debtor or by his own superior vigilance, or by bcth causes combined, is entitled, under the statute, to what he wins, provided he takes no more than his honest due. He is not obliged to look out for other creditors, or tc consider whether they will or will not get their debts. He does not violate any principle of the statute when he asks payment or security for his demand though others are hereby deprived of all means cf obtaining satisfaction of their own equally meritorious claims, and though he may be aware of the intent of the debtor to defeat the collection of them. Fraud, in its legal sense, can not be predicted of such a transaction. Wherever there is a true debt, and a real transfer for an adequate consideration, there is no collusion.”

Our own Bupreme court have expressed themselves probably stronger. In Cross, Trustee, v. Carstens, 49 Ohio St. 548, the court said:

“In the many decisions upon the general subject from Atkinson v. Jordan, supra, to its last deliverance upon the question, (save in the overruled case of Mitchell v. Gazam, 12 Ohio, 315), this court has not omitted tc affirm the right of a debtor, in failing circumstances, in good faith, to pay or secure, one or more creditors in preference to others. Wilcox v. Kellogg, 11 Ohio, 394; Fassett v. Traber, 20 Ohio, 540; Doremus v. O’Harra, 1 Ohio St., 45; Atkinson v. Tonlinson, Id., 237; Bloom v. Negle, 4 Ohio St., 45; Harkrader v. Leiby, Id., 602; Dickson v. Rawson, 5 Ohio St., 218; Badaley v. Waters, 7 Ohio St., 359; Justice v. Uhl, 10 Ohio St., 170. From an examination of these decisions it will appear clear, if decisions can establish anything, that it is established beyond question, that however equitable it may seem to require the assets of an insolvent debtor to be distributed pro rata among his creditors, our statute fails to make compulsory provision for that end. But, on the oontrary, it permits preference, if made in gcod faith, though but little be left, or nothing at all be left, for other creditors equally meritorious.”

On page 573 the court say: “The right of preference rests upon the natural right to acquire and control property. The jus disponendi is necessarily an element of ownership. To authorize the citizen to acquire property would be of little use if he had not the corresponding right to dispose of it. So long as he retains his dominion over it the property is his to do with it what ha wills, save only that it must not be devoted to an unlawful purpose. Our statute, section 6335, fixes the time when an assignment for the benefit of creditors shall take effect. It is, at least so far as the transfer of control over the property is concerned, only from the time the deed of assignment is delivered to the probate judge. ”

In that case a firm hopelessly insolvent conveyed all their property to a mortgagee to secure certain creditors,and within an hour after executing the chattel mortgage filed a deed of general assignment in the probate court, showing beyond question of course their own knowledge of their hopeless insolvency.

But we are not left upon the main question in this case to that authority, for the supreme court of this state many years ago decided almost precisely the same question in the case cited to us and found in Sigler v. Bank, 8 Ohio St., 511. In that oase so far as the facts were concerned they were much stronger in favor of the creditor seeking to convert into a general assignment the transfer than in the case before us. In that case all the property of the insolvent firm was conveyed to an individual to secure and pay the individual debts, or some, at least,of the individual debts of one of the partners,and thereby excluding in participation of the firm property all of the firm creditors. Perhaps there were some firm creditors included in this conveyance, but excluding all those that W6re not included in the conveyance. And there was argued by very able counsel the proposition that they could not take the firm property when they were insolvent, actually insolvent, knowing they were, oould not then appropriate the firm property to pay an individual debt, that in fact they had become insolvent and acquired knowlege of their own insolvency, therefore that property they held in trust first and foremost for the firm creditors. Now the court say, on page 516:

“The right to have the joint assets applied to the joint Habilites, to the exclusion of the separate creditors, is the personal right of the partners themselves, and does not pertain to the joint creditors who have not acquired, by previous levy or seizure, a Hen on the joint effects; and any right whioh they may have to such application, must, it is said, be worked out through this equity to the partners. “And it would seem to follow from the facts — that the creditors have no such lien, and that their claim, if any, must be based upon this right of the partner — that if the other partners should acquiesce in and agree tc such appropriation to the separate creditor, the joint creditor oould not thereafter object. And so are the authorities.
“When the primary right of partners to apply the partnership property to the extinguishment cf the partnership debts is gone, the right of the partnership creditors tc enforce the application of the property of the firm to the payment of their debts, is also extinguished:” Miller v. Estill, 5 Ohio St., 508; see also, Wilcox v. Kellogg, 11 Ohio St., 394; Rice v. Banard et al., 20 Verm., 479.

I need not go over this discussion fcr it is somewhat lengthy, but on page 518 the court say:

“But, in our opinion, it would never do to adopt a rule so uncertain, as that the power of the partners over the joint property is to cease, whenever it can be shown that their assets, for the time being, are insufficient to discharge their liabilities. Such a rule would be productive of much inconvenience, injustice and uncertainty. The true rule should be, that the power of partners thus to act ceases from a mere inability at the time to pay their debts.
“The simple fact that men may be insolvent in the popular sense of the word, dees net deprive them of the power of selling their property by bona fide sales.”

And again on page 519:

“We have already seen that there is no actual fraud in the sale and purchase. They bought from those who had, at the time, the dominion and control, and right of disposition, if they saw fit, to the separate creditors. The only person, the other partner, who had the right to object, having consented to the appropriation, it is difficult to see how such a transaction can raise a trust, either express or implied, in favor of creditors, who, under repeated decisions in Ohio, have no lien on, or right to, the property, except such as is derived from and dependent upon the right of the co-partners themselves.”

This then, establishes the law for our guidance that these firm creditors have no more rights before this court than have the individual creditors. Well, it is said that these people, the Wehrle women, were but sureties; but they are jointly and severally bound as makers of this promissory note, and as sureties they were equally liable with the principal for the payment of the whole amount of the indebtedness. To say that they were not indebted to this estate, would be a strange assertion in view of the fact that the object of the statute requiring a surety is what? Not simply to make him a guarantor that he shall pay in case the principal shall not be forced to pay, but to make him individually and personally liable for the debt, that it might be collected of him; and on December 17th, these women could have been sued and Herman Wehrle omitted from the action so far as the face of this paper is concerned. They could have been sued jointly or severally for the collection of this debt. So. that indebtedness existed notwithstanding that Mrs. Wehrle said she did this for the purpose cf saving the principal on that note from having his business interrupted or his property taken away from him; this surety had a right to appropriate her property to the payment of that principal debt beyond all question; it cannot be denied successfully.

This is a much stronger case than Sigler v. Bank, supra, because both of these partners wer? indebted. Both of these partners, equally indebted u'pon this promissory note, took their partnership property and paid the individual liability of the two rather than the firm liability of the two. No court has ever held that kind of a transaction fraudulent, and we conclude, then, that we cannot hold the sale of this property to August Schmidt, Jr., as being made with intent to hinder, delay and defraud creditors without plainly shutting our eyes both to the law and the evidence in the case.

He paid good value, a good consideration. The transaction was, so far as he was concerned, open above board. It was the highest price that the agent of these owners could obtain at the time, and conceding all the other claims that Mr. Schmidt knew these people were insolvent, knew that they were indebted more than they could pay, it does not aid the plaintiff at all. Knowing that and knowing that he as executor held a claim against them whioh was greater than the value of all the property they owned, so much the more would have been the duty incumbent upon him to secure from them this very property to pay that debt with, and if that had been the sole ground of his action it would have been entirely meritorious. The only other thing that he did about it was as an individual against other bidders; it was to make his offer for this property as against other parties, which was finally accepted. The amount of that offer, the amount of the purchase price was indorsed upon the paper which he held. We hold, then, as to this sale, we cannot set it aside.

Another question, and that I can only say a few words about. Before this sale was made, Mrs. Andrew Wehrle, who was the owner of 25 shares of boat stock, worth anywhere from $2,500 to $8,000, made a proposition to give it away to her daughter, and had asked the officers of the boat company, of which Mr. Schmidt was president, to transfer it, and they did not do it. They took advice from Mr. Read who thought it was incumbent upon them to do it if they were instructed to do.so by the-owner. The following day, and after the sale was made, Mr. Read, the attorney for Mrs. Wehrle, something more being said about the stock, asked why she should not give it to him. They had some conversation about it. and she gave it to him, as Mr. Read says, for the payment of his attorney fees, which, Mr. Read says, had been inourred in various consultations with her running since the death of her husband and services rendered, and which, he thinks, were of the value of $1,200. He also testifies that the agreement was, it was to be transferred to him for the payment of those and any services he might thereafter render. Mrs. Wehrle testifies she did not know any thing about his bill, he never had presented one, and whether she owed him or not she does not know, but she is quite sure she did not owe him $2,500, and Bays that he took the stock to save it for her. She had an idea that this stock would be called on by Schmidt to help pay up this note or secure it, but at any rate-she turned it over to Mr. Read who on the same day, without any obligation on his-part to do so, indorsed it over to Schmidt and took a receipt back that it was held to secure the balance of this note of $15,000.

Phinney & Merril, Theodore Alvord, J. W. Bannon, H. H. Poppleton and W. F. Carr, for Plaintiff and Cross-petitioning Creditors.

John F. McCrystal, W. H. A. Read and C. P. Wickham, for defendants.

We cannot go into that transaction and analyze it, but we are satisfied from the evidence in the case that there was nc consideration for the transfer of this stock, and that the title of it never passed; that it w'as, however, taken by Mr. Read as security to pay a debt due to him. We think that is certain,and that he might hold it for that security. We are not prepared to hold otherwise; but when w« come to the question of the amount of the debt we are very much at a loss to determine what it is. There is no evidence here of the amount of these services,and no evidence of their value. Mr. Read says his claim is $1,200,and his claim for services rendered since considerable more. We think he cannot hold it for services rendered since, but only for the services that had been rendered and approved up to the time of the transfer to him.

We first thought we would refer this matter to have the amount of these fees determined, but we have concluded to determine them ourselves, and fix the amount of Mr. Read’s lien on this stock at $500. We direct that the holder of this stock, Mr. Schmidt, shall turn it over to the trustee whom we shall appoint, and that the trustee is to sell this stock upon twenty days’ advertisement in two newspapers of general circulation in this county and city. We will not make an order about the proceeds.

I should say the amount of money coming to Mr. Read from that sale will be $100, and he is to credit on his claim the $400 which he has collected as dividends.


author: Haynes, J.

text:
    (Sixth Circuit — Huron Co., O., Circuit Court —
    January Term, 1893.)
    Before Haynes, Scribner and King, JJ.
    JOHN L. RIES v. E. M. WOLF.

      Statute of Limitations — Possession for 21 years under agreement of 'parties as to division line—

    Where parties have agreed as to the division line between their lots, and have taken possession and occupied their lots according to such line agreed upon for more than 21 years, and it afterwards appears that such line was not the true line, an action to recover the land up to such true line will be barred by the statute of limitations.
    Error to the Court of Common Pleas of Huron county.
   Haynes, J.

A petition in error in the case of John L. Ries, plaintiff in error, against E. M. Wolf, defendant in error, was filed in this court for the purpose of reversing the judgment of the court cf common pleas, wherein an action was brought by Wolf in ejectment for twenty-six inches of land fronting on Main street in the village of Bellevue, and extending back to the depth of 110 feet, being, as alleged in the petition, off of the west side of the east half of the lot No. 68, in Bellevue. The case was once tried to a jury, and a verdict was rendered for the plaintiff which was set aside by the court of common pleas; and it was re-tried in that court, judgment being rendered for the plaintiff below against the plaintiff in error here. A mo'tion was filed to set aside the verdict, which was overruled and judgment was entered for the plaintiff below, and to that judgment a petition in error was filed in this court.

The facts of the case briefly, as they appear in the petition and in the evidence, are that sometime in the year of 1849, the parties perhaps who originally platted the ground, Harkness by name, and some others, deeded or conveyed the one-half of this original lot No. 74, to certain parties, and the east half of it to another party. The deeds were not, in fact, made until a little after that time.

The evidence shows that a man by the name of Lawrence was in possession in 1849, and that subsequently he obtained a deed which was in his possession claiming to be the owner of the property and occupying it as such. At that time, Doctor Goodson and a man by the name of Little were the purchasers of the land. After the purchase was made, according to the testimony of Doctor Goodson, which stands here undisputed, the parties met for the purpose of dividing the property between themselves and staking out. the division line. There are three Jots laid out on a triangle which is described as bounded by Main street on one side,, Sandusky street on another side,and some street on the third side. The east lot, now No. 62,is a much deeper lot,standing along Sandusky street, than lot No. 68, and the east side of lot No. 68 is much longer than the west side of the same lot; west of it is another lot which itself is a triangle.

Under this state of facts, according to Doctor Goodson, the parties met and agreed that the dividing line should be-based approximately .upon the division lot by area per foot,, and that, in the division that they made at that time, the. dividing line would be about five feet perhaps from the true, center line, if measured by the frontage of the lot on Main street. To that, it seems, Harkness was present, the original owner,Goodson, was present, and Lawrence was present, and they were all consenting to this arrangement, and that matter was carried into a deed of all the undivided half of the lot, to each party. It was agreed between Lawrence and Goodson that there should be a fence built on the dividing line — part of it by Lawrence and a part by Goodson, which part each was to build Goodson does not say in his deposition; but the fence was soon erected from Main street south,and approximately near this line, as we think from the evidence, and the parties proceeded to occupy their respective premises. The east half occupied by Lawrence had upon it at that time, a house that had been built by a man by the name cf Wolf; or if not, a house was built there soon after,, and there is a house standing there now which was built at an early day which is called the “Wolf house.” This, fence that was built ran west of that house, and the other-side of the property was built upon; sooner or later a house, was built very near the line fence, and subsequently there, was an extension to that house which was built a little further south, and, as it is said, was very close to the fence. The parties continued to occupy with that fence in that position at least a generation of men, or for more than twenty-one years when, in consequence of the growth of the town and the changes that were being made, the fence adjoining Main street and for seme distance back was removed, but certain posts that were originally a part of the fence, were left standing until a later period, and perhaps were left until the commencement of this suit.

The contention of the plaiutiff is that he is entitled to hold up to the center line dividing the property into equal halves by the division made upon the line of Main street. The original lot was ninty-nine feet,and he claims he is entitled to forty-nine feet and six inches, and the other party is also entitled with him, to a like amount.

Testimony is offered to show that some deeds had been given of the west half of the property by description, that described the property as forty-nine feet and six inches upon Main street; but the parties continued to oooupy up to the line of the fence, as I have said, for more than twenty-one years. The contention really, when it came to the trial, after giving in the record evidence and some other matters, arose upon the question as to the position of the fence as it was originally built under the arrangement between Goodson, Lawrence and others, and on that point there has been considerable testimony taken, a number of witnesses on each side having testified in regard tc the matter.

The contention cn the part of the plaintiff is that the fence was more than three feet over from the present Wolf house,and that that would bring the fence well over towards the true center line divided by the foot front.

On the other hand, the contention is that the fence has never been changed, and that it stood in the position in which it was originally built, and that it was built so it passed a little east of the buildings that had been put upon the west half.

The testimony having been placed before the jury, the court in its charge, being requested to charge upon certain points, declined to give the charges generally, and gave a charge of its own. Leaving out in so doing, one or two requests of the plaintiff, he charged beyond that substantially, perhaps, as the plaintiff, or the defendant would desire,

The court, after proceeding to state the issues that were male which included as a matter of defense, the statute of limitations, claiming that the defendant and those under whom he claimed, held, occupied and used the premises for a period of more than twenty-one years, openly, notoriously and adversely, and claiming to he the owner, charged as follows: “By the concession of the attorneys and the undisputed facts as shown to you, as early as 1889, the then owners of this property, by their own act, divided it and established a line by building a fence which has been acquiesced in from that day to this, as conceded by counsel; therefore, I say to you gentlemen, that you need give no further consideration to the effect of these various deeds that have been offered in evidence, except in so far as they may tend to show to you the exact line of the then fence put in there in 1889; because, by'the undisputed facts and the admission of counsel, from that time up until 1373, these various parties, and those under whom they claim, occupied and held these respective premises up to that date, to that line, and therefore no matter what went before— what the condition of these deeds was, as introduced, each party then held and owned a legal estate up to that line on their respective sides.”

He then submitted a form of verdict to the jury, or perhaps two or three of them, but we have only one of them before us because that was the verdict that was returned by the jury.

The jury returned this verdict — and it. was the verdict submitted to tbe jury and returned by them:

“Now comes said jury into open court with their verdict in writing, signed by their foreman, and say: ‘We the jury being duly empaneled and sworn, find the issues in the case in favor of the plaintiff, and we find that the plaintiff has a legal estate in, and is entitled to the possession of the following described real estate situated in the village of Bellevue, county of Huron, and state of Ohio, and described as follows: beginning for the same at a point 146 feet and 10 inches from the northeast corner of lot No. 62, said lot No. 62 being at the intersection of Main and Sandusky streets; thence west on the south line of said Main street 26 inches; thence south parallel with Sandusky street, 110 feet; thence east 26 inches; thence north [¶] feet to the place of beginning’. ”

Taking out ninty-nine feet which was the width of the first lot, and starting forty seven feet and ten inches from the northeasterly corner of this lot and proceeding thence two feet and two inches, would bring the amount cf land that is returned by the verdict of the jury, an inch cr sc over the true center line, and they probably made a miscalculation in figuring. It,at least,brought it up to the origi-. nal center line, and for that, judgment is rendered.

We think, and the question was submitted to us on the ground that the verdict was not sustained by sufficient evidence, that under the laws cf the state of Ohio, that the jury have erred in returning a verdict for that amount of land; we think the testimony shows that the original parties who fixed the line that should be the division line between them, fixed it at the point east of what was the true center line, and the only question is as to the distance it is east of that fence. The court charged the jury that the plaintiff could recover only for so much of the land as they fouud to lie east of that fence, not east of the true lino, and the jury must have found, in rendering this verdict, that the fence was origiually built upon the true line.

The testimony of a number of witnesses was taken, as I have said, and there is the usual discrimination among them resulting largely from a want of memory in regard to the matter, and when called up, they start out by saying they don’t know anything about the matter, but they guess it was about two feet or twenty inches or some other amount, showing that the only knowledge they have is based on an indefinite recollection extending over a period of a great many years. Some of them, however, testify as to recent years when the fence, or a part of it had been removed.

After a very careful scrutiny of this evidence — because we have gone over it item by item, we are very well convinced that the fence was originally east of the true line, and that it came perhaps within two feet or twenty inches of the Wolf house; that it reached certainly east of the present premises of the defendant Ries, east of the buildings that were placed upon the property by Goodson and those who succeeded him; and that the jury should have found that the line was at this point, in substance; that is to say, where the line has been found' — on the line lying between these two parties and near the houses of Ries. The true line would cut off Ries’s house by quite a little amount of land. I think one witness testifies that it would take off about sixteen inches, or quite a number of inches any hew, according to the testimony of witnesses.

It may not be capable of an exact location, but under the charge of the court, and under the evidence, it certainly should have been found to be east of the true line. Instead of that the jury returned a verdict giving the plaintiff the title to the land up to the true line — giving him his whole forty-nine feet and six inches, dividing it not according to the area, but according to the foot front upon Main street.

There is no question, we think, under the laws of this state, and under the decisions that have been cited to us, that where parties have agreed upon a division line and settled upon it and have occupied up to it for a period of more than twenty-one years, that that bars any suit; indeed, in McNeely v. Langan, 22 Ohio St., 32, they held that where a party had entered by mistake and buiit over the line three feet and'occupied up to it for a period of more than twenty-one years, the party was entitled to hold the property as against what would otherwise be the true owner, holding as they did in that case, (Judge White delivering the opinion), that color of title was not necessary in order tc maintain in this state the plea of the statute of limitations.

We think this is not a case similar to cases which are found where there is a mistake as to where the true line is. In that case, under certain conditions and with certain expenses,the party may recover up to the true line; but in this case there was an agreement between these parties. They knew the size of the lot at that time and where the dividing line was, and under some arrangement by which they had bought and under some equity which they recognized between them which is not set forth in Goodson’s testimony, they agreed that the lime should be made according to area of the lot, and which was placed at this point some feet east of the true line. They built their fence upon it; they built their houses with reference to it and .occupied in reference to it for more than a generation of men, and we think now it is too late for the plaintiff to claim that he ought to maintain an action to recover up to the true line, or division line of the lot.

The judgment of the court of common pleas will therefore be reversed the verdict set aside and the case remanded for a new trial.

       See also McAllister v. Hartzell, 41 Bull., *303; 60 Ohio. St.


text:
    (Sixth Circuit — Wood Co. Ohio, Circuit Court
    March Term, 1898.)
    Before King, Haynes and Parker, JJ.
    ANNA MARX v. JACOB LOO.

      Error proceedings — Transcript of journal entries must he filed within the six months—
    All the papers required to be filed in proceedings in error, must be filed within the period of six months within which time error proceedings may be instituted; and where it appears that a transcript of the journal entries, which under sec. 6716, R. S., must be filed with the petition in error, was not filed within the six months with the other papers in the case, such transcript cannot be filed afterwards, and the record not being complete, the error proceedings must be dismissed.
   King, J.

This is a motion to dismiss this proceeding in error, for the reason it was not commenced within six months from the date of the rendition of the judgment in the court of •common pleas sought to be reversed. The judgment was rendered May 6, 1897.

The petition in error was filed in this oourt October 28, 1897. Indorsed thereon was a waiver of the issuance and service of summons in error signed by the attorney for the defendant in error. With the petition in error, and at the same time, t.iere was filed the original papers, being the pleadings, the summons and return of subpoenas and the original drafts of the journal entries and a bill of exceptions. This it will be seen, was within six months. On November 9, 1895, thre3 days after the expiration of the period of six months, the plaintiff in error filed a transcript of the journal entries, and it is urged in support of the motion that all the papers required to be filed, must be filed within the period of six months, in order that the proceedings in error may be deemed to have been commenced. Our first impression was opposed to granting this motion. But we are cited by counsel to the case of Bartoon v. American National Bank, 14 C. C., 450, in which it is held that it is necessary to file with the petition in error, or within six months from the rendition of the judgment, the transcript of the docket and journal entries, together with the original papers where a final record has not been made, and that if either of these requisites be omitted until the six months period has elapsed, the proceeding in error is not commenced and must be dismissed on motion.

We have examined the question with some care, because ■of this decision. Section 6718, Rev. Sat., provides, in substance, that proceedings to reverse, vacare or modify a final order of any oourt, shall be by petition in error, filed in the oourt having power to make such reversal, vacation or modification, setting forth the errors complained of; that thereupon a summons shall issue and be served, as in the commencement of an action.

Section 6716, Rev. Stat., provides that the plaintiff in ■error shall file with his petition, either a transcript of the final record,or a transcript of the dooket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of.

Section 6723, Rev. Stat., provides that no proceedings to reverse, vacate or modify a judgment or final order shall be commenced, unless within six months after the rendition of the judgment or the making of the final order complained of. And it is held in Ross v. Willet, 54 Ohio St., 150, that sec. 4987 and sec. 4988 of the code,are applicable by analogy to proceedings in error, to determine when or whether a proceeding in error has been commenced. This case refers to that of Robinson v. Orr, 16 Ohio St., 284, where it was held that that section which is now section 4987, was applicable, by analogy, to proceedings in error, and where no service of summons had been made upon a neoessary defendant in error, and no attempt to serve him had been made within the time limited, that the proceeding must be dismissed. In other words, it was not sufficient to file the petition in error in the reviewing court, but that following section 4987, the action or proceeding should be deemed commenced at the date of the summons served upen the defendant in error. But in Ross v. Willet, supra, it is held, that sec. 4988, Rev. Stat., is also applicable, and that an attempt to commence an action, shall be deemed equivalent to the commencement thereof, when the party diligently endeavors to procure a service, but such attempt must be followed by a service within sixty days, and deciding that if the petition in error is filed within six months followed immediately by a diligent effort to procure service, which is followed by actual service within sixty days, even after the expiration of the six months period of limitation that the action will be deemed commenced, so that the liberal provisions of the code are applicable to proceedings in error, notwithstanding the decision of the oourt in Burke v. Taylor, 45 Ohio St., 444, where it was held that the statutes authorizing proceedings in error should be strictly construed. We then find that an attempt to commence a proceeding in error is equivalent to the commencement of one, when it' is followed by an effort to procure service and an actual service of summons within sixty days, even after the expiration of the limitation fixed by the statute. So much is settled by the decision of the supreme court. Is it true, then, that when these are all accomplished within six months, that the proceeding is still not commenced unless each and every paper required to be filed in tho proceedings to advise the reviewing court of the nature of the error complained of, is also filed within six months? The learned judge delivering the opinion in Bartoon v. American National Bank, supra, holds that it is not neoessary that these papers be actually filed at the same time as the petition in error, evidently oorreotly construing and holding that sec. 6716, Rev. Stat., did not make that requirement. The requirement is that-they shall be filed, and with the petition in error, yet not necessarily at the same time, and that only such papers-must be filed as are necessary bo exhibit the error complained of. Is it possible that if any of these be omitted, the proceeding is not commenced. We are unable to come-to such a conclusion. The filing of the petition in error, the service of the summons in error, or in its stead the-•waiver of a summons in error, and that within the period named in the statute or within sixty days in a case governed by the case in tine 54 Ohio St., commences the proceeding in error.

Now, then, if the record is not complete, it seems to us-evident that the party who has not filed the necesary papers-to exhibit the error complained of, has still aright to have the proceeding in error heard in the usual manner, and determined. He also has a right-, in our judgment, if the record is incomplete, to suggest a diminution of the record and the sending up of a more perfect record. The defendant in error may make the same suggestion cr motion.

Going back to the code of civil procedure again, we find in sec. 5085, that when an action is founded on a written instrument as evidence of indebtedness, a copy thereof must be attached and filed with the pleading. In the proceedings-in error it is not necessary to attach these various papers. Under that section it is held in Calvin v. State, 12 Ohio St., 60-66, that the omission to attach or file with the petition such written instrument is not a ground of demurrer and must be taken advantage of by a motion to make more definite. In Larimore v. Wells, Adm., 29 Ohio St., 13, it is held that such copies of written instruments attached tc and filed with the petition, form no part of the pleading, and if omitted the sufficiency ®f .reason given in the pleading fcr the omission to attach and file them is to be decided by the court, and does nob affect the merits of the action. We cite also the case of Stevenson v. Seymour, 3 Law Bull. 525, the decision by the district court of Ross county, in which it was held that a failure to file the original papers or transcript of the record with the petition in error is sufficient cause of dismissal, but is amendable. If it "be amendable then where it has been complied with and the papers are already filed with the petition in error, certainly a motion tc dismiss should be overruled. We conclude that the filing of these papers is but an incident to the commencement of the proceeding, and that the filing of them or the failure to file them will iu no wise determine whether the proceeding is commenced — that that must be determined alone from the petition in error and the summons, if one is issued. This motion will therefore be overruled.

Baldwin & Harrington, for motion.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1893.)
    Before Smith, Swing and Cox, JJ.
    CAMPBELL v. EAMES et al.

      Appeal — Petition to foreclose ashing personal judgment not appealable—
    (1.) Where the petition sets up one cause of action asking for foreclosure of a mortgage, and in a second cause of action asks for a personal judgment against the defendant, the defendant has a right to demand a jury, and the case is not appealable.
    (2.) Where in such petition, aB to other parties joined therein as defendants, as having liens on the property mortgaged, no per sonal judgment is prayed for, such other parties have the right to apx>eal.
    Heard on Motion by plaintiff to dismiss appeal.
   Smith, J.

The amended and supplemental petition in this case, on which trial was had in the court of common pleas, contained three causes of action. By the second, the plaintiff sought for a personal judgment against-Eames on a note executed by the latter to Campbell for $500. The first was for a foreclosure of a mortgage given by Eames and wife to plaintiff to secure said note, and the third set up a judgment obtained by plaintiff against Eames, in another action, which it was claimed was a lien on the mortgaged premises. Henry Klein, L. H. Pummill and others were made parties defendant, as asserting liens on the same premises.

Eames and wife filed no answer, but Klein and Pummill filed answers and cross-petitions setting up their liens on the real estate mortgaged, and contesting the validity of the mortgage of Campbell, and claiming priority over the sáme. The question as to the consideration of the Campbell note was tried to a jury, on an issue out of chancery, which found in favor of Campbell, and the court by its decree found that his mortgage lien was a good one, and had priority over the liens of Klein and Pummill. From this decree Klein, Pummill and Eames, severally and separately appealed.

We are of the opinion that Eames was not entitled to appeal.- As to him, a personal judgment having been sought on one cause of action, and a decree of foreclosure of the mortgage given to secure the debt in another cause of action, and on the authority of Ladd v. James, 10 Ohio St., 438, and other oases, it must be held that Eames, being entitled to demand a trial by jury, he oould not appeal.

Thos. F. Shay, Richard E. Werner and L. M. Hadden, for Plaintiff.

Wm. E. Bundy, for Defendants.

The rules as to the other parties appealing is different. Campbell had no claim against them, on which he asked for a personal judgment against them. The controversy between them was of an equitable nature, viz.: Whether the mortgage of Campbell was a subsisting lien on the property. Bazell v. Belcher & Doral, 31 Ohio St., 572. As to this neither of those parties was entitled to a trial by jury, and they oould therefore appeal.

The motion as to Klein and Pummill will be overruled.