author: Montgomery, P. J.

text:
    Lindsey et al., Appellees, v. Markley et al., Appellants.

      (No. 773
    Decided April 21, 1950.)

      Messrs. Spidel S Hole, Mr. Fred Syler and Mr. Vernon Lee, for appellees.

      Messrs. Watts, Poffenbarger <& Bowles and Messrs. Bowers, Stafford é Bowers, for appellants.
   Montgomery, P. J.

The actual appellants are the attorneys of record for the contestees in an action brought in the Common Pleas Court of Tuscarawas County to contest the validity of the will of Emma Fletcher Ream, who died in 1947. They were unsuccessful, because the jury to which the cause was submitted returned a verdict for the contestants and judgment was entered upon that verdict. From that judgment an appeal was perfected to, and is pending, in this court.

After that adverse verdict, these attorneys filed a motion in the Common Pleas Court, in that action, asking for the allowance of attorney fees, under author ity of Section 12082, General Code, effective July 4, 1945. That motion was overruled, and from that order this appeal was perfected.

That Code section is in this language:

“An issue must be made up, either by pleadings or an order on the journal, whether or not the writing produced is the last will or codicil of the testator, which shall be tried by a jury. The verdict shall be conclusive, unless a new trial be granted, or the judgment is reversed or vacated; and, where the jury finds that the writing produced is not the last will and testament or codicil of the testator, the trial court shall allow as part of the costs of administration and order to be paid out of the estate of the decedent, whose purported last will or purported codicil was contested, such amounts to the fiduciary or fiduciaries and to the attorney or attorneys defending such purported last will or purported codicil, as in the opinion of the trial court are fair, just and reasonable compensation for the services rendered in such contest. A copy of such order shall he certified to the Probate Court by the clerk of the Court of Common Pleas and the Probate judge shall include the amount so certified in the costs of administration.”

Contestees defend the action of the trial court on several grounds, all of which we will discuss.

The chief contention is that this statutory enactment is unconstitutional in that, in such an action, it would mean a deprivation without due process of law of a property right which had become vested in the appellees.

Now there is no natural right to inherit property. Such right, if it exists, is a result of legislative action.

As stated by Judge McIlvaine in the case of Gilpin v. Williams, 25 Ohio St., 283, at page 300:

“There is no principle better settled than that the expectation of an heir presumptivé is not a vested right but a mere possibility. It is not an estate in property, and can be neither transferred or released. Upon this priniciple it is held that the laws of descent may be changed at the pleasure of the Legislature, as to all estates not already cast upon the heir by the death of an ancestor.”

An interesting discussion of this situation is to be found in the case of State, ex rel. Taylor, Jr., Pros. Atty., v. Guilbert, Aud., 70 Ohio St., 229, 249, 71 N. E., 636. The Supreme Court of Ohio in that case followed the Supreme Court of the United States in the case of Magoun v. Illinois Trust & Savings Bank, 170 U. S., 283, 42 L. Ed., 1037, 18 S. Ct., 594, and quoted from the opinion in that ease, as it appears on page 288, in this language:

“The right to take property by devise or descent is the creature of the law, and not a natural right — a privilege, and therefore the authority which confers it may impose conditions upon it.”

The same proposition was later decided by the Supreme Court of Ohio in the case of Ostrander, Admr., v. Preece, Admr., 129 Ohio St., 625, 196 N. E., 670, 103 A. L. R., 218. The third paragraph of the syllabus in that case is:

“Legislation which deals with rights of transmission and inheritance of property of persons who die after its effective date, does not deal with present vested rights, and heirs expectant and legatees of decedents who are adversely affected thereby are not deprived of present vested property rights without due process of law.”

And, on page 632 of the opinion, this statement is made:

“Legislation dealing with estates of persons who die after its effective date does not deal with vested rights. ’ ’

To state the proposition differently, the property which may be vested in the plaintiffs is so vested only if the litigation is ended, all the debts and claims paid, and distribution ordered.

Again, it should be stated that the presumption is in favor of the validity of a will. Those attacking it cannot complain of its being defended, or the costs of such defense being taxed against the estate, which estate the testatrix intended should be controlled by the provisions of the will.

The constitutionality of this statute is challenged further on the ground that it violates the provisions, the spirit and the intent of Sections 7 and 8 of Article IV of the Constitution of the State of Ohio, which define and determine the jurisdiction of the Probate Court, on which, is conferred the right and duty to settle accounts of fiduciaries.

As we see it, this statute under consideration does not constitute any interference with the jurisdiction of the Probate Court. It is simply a new statute, which gives the Common Pleas Court authority to assess fees and costs. In any litigation in the latter court, in which an estate loses, costs are taxed against it in such court, and its jurisdiction is never questioned and the Probate Court approves payment of such costs.

The next contention is that there is no primary duty on an administrator to defend a will. That proposition is doubtless correct, but it is a natural and proper thing for him to assist in the defense of the will, and if the court thinks proper to allow fees therefor. Such action certainly is not unconstitutional. Moreover, it is to be observed that this Section 12082, authorizing the allowance of fees, does not limit them to the' attorneys for the legal representative of the estate, but says they shall be allowed “to the attorney or attorneys defending such purported last will, ’ ’ etc.

It is suggested, but not strenuously urged, that no proof was offered as to the services rendered or their value. The trial court, upon the presentation of the motion, made this observation: “I will take jurisdictional notice that they performed a lot of service for four and one-half weeks.” Of course that would be true, as the motion was made to the judge who tried the main action, who knew what had been done and needed no proof. And if a reviewing court were called upon to consider the amount of the allowance, if one had been made, it could look to the record in the main action.

It is conceded that counsel have received substantia] fees from the contestees who were the named beneficiaries. That fact and the amount received might well be considered in fixing an additional amount under this questioned statute, but it would not preclude such allowance.

Finally, it is urged by appellees that this motion or application was filed prematurely, in that the final outcome of the litigation cannot be known. Suffice it to say that this claimed allowance is for services rendered in the Common Pleas Court in the trial which has been had. It has no reference to what may happen hereafter. If the will ultimately should be upheld, these services heretofore rendered would not be less valuable than if the existing judgment should be final. And if the existing judgment should not be hereafter disturbed, compensation for future services could be claimed against those responsible without reference to what had been allowed for this trial, and as though this statute did not exist. The statute is unqualified and does not provide for subsequent happenings.

The judgment of the trial court is reversed and the cause is remanded to that court for further proceedings in accordance with this opinion.

Judgment reversed.

McClintock and Putnam, JJ., concur.


source: Caselaw Access Project

author: Fess, J.

license: Public Domain

text:
    The State, ex rel. Mack, v. O’Connor, Judge.
    (No. 4366
    Decided November 28, 1949.)

      Messrs. Lamb, Goerlich S Mach, for relator.

      Mr. Joel 8. Bhinefort, prosecuting attorney, and Mr. Harry Friberg, for respondent.
   Fess, J.

The question for determination arises upon a demurrer to an answer to a petition in mandamus.

Relator petitions this court for a writ of mandamus seeking to require the respondent to allow and sign a bill of exceptions presented by relator, or to correct the same, and allow it as a part of a record in another action from which relator has taken an appeal.

The petition recites in part that, after a hearing, judgment was rendered by respondent on October 28, 1948, overruling relator’s motion to vacate judgments rendered by respondent on July 23, 1948, in an action for alimony and child support; that no reporter was present at the hearing on relator’s motion held on October 18,1948; that relator filed his notice of appeal on November 8, 1948; that on December 7, 1948, a short narrative form of bill of exceptions was duly filed; that no exceptions were filed thereto by opposing counsel and on December 18, 1948, such bill was presented to respondent for allowance; and that on January 6,1949, respondent returned the bill to the clerk with the endorsement, “Disapproved.” The petition further relates that respondent did not allow the bill, did not consult relator, gave no notice of changes made therein, and indicated no reason for making such changes.

For his answer, respondent states in part that at the April 1948 term a hearing was had and a judgment rendered against relator on July 23, 1948; that on September 30, 1948, relator filed a motion to vacate such judgment entered on July 23, 1948; that at the hearing held October 18, 1948, the motion was argued by counsel and'submitted to the court without evidence; that on December 7, 1948, relator filed a statement in narrative form purporting to be “the facts” in the case, accompanied by an affidavit of relator’s counsel and excerpts from the rules of the Common Pleas Court; and that on January 6, 1949, relator returned the purported bill to the clerk with the words, ‘ ‘ all of which is accordingly done this-day of December, 1948, ’ ’ and the word, ‘ ‘ approved, ’ ’ deleted and with the word, “disapproved,” inserted in lieu thereof.

Relator states further that the purported bill was not in truth a bill of exceptions because the matters therein related as facts were not the facts presented to the court and that at the hearing no evidence of any kind was offered by either party; that the affidavit of relator’s counsel was not filed or submitted to the court at the hearing; and that with the foregoing matters eliminated from the bill, no bill of exceptions remained which respondent could allow.

Relator demurs to the answer, which raises the troublesome question of the duty of a trial court incident to the allowance of a bill of exceptions.

State, ex rel. John Gill & Sons Co., v. Baer, Judge, 8 Ohio App., 184, decided in 1917, holds that the trial judge is not required to prepare a bill of exceptions for counsel and is obligated only to sign a “true” bill, or, when objections or amendments are filed, to correct the bill, and that the decision of the judge that the bill tendered is untrue is conclusive and final. In that case it appears that the trial court properly found that the bill presented was not a true bill, but offered to help counsel prepare a proper bill and in his answer offered to sign any “true” bill presented. The case was decided upon authority of State, ex rel. Atkins, v. Todd et al., Judges, 4 Ohio, 351; Ex parte Bradstreet, 29 U. S. (4 Pet.), 102; Creager v. Meeker, 22 Ohio St., 207; and Shepard v. Peyton, Judge, 12 Kan., 616.

In Beebe, Judge, v. State, ex rel. Starr Piano Co. (1922), 106 Ohio St., 75, 139 N. E., 156, the Supreme Court held that it is not only the duty of the court to allow and sign a correct bill but likewise its duty to correct errors therein, and upon refusal so to do mandamus may issue. In that case the Court of Appeals sustained a demurrer to the answer and ordered the defendant to correct, and thereafter, as corrected, to settle and allow the bill, and, if necessary to that end, to call to its aid the advices of counsel and the stenographer who had acted as reporter.

In State, ex rel. Adams, v. Weygandt, Judge (1930), 35 Ohio App., 433, 172 N. E., 543, the court held that the trial judge, finding that the bill was not a true bill and could not be corrected, properly required a complete transcript of the testimony to be attached to the bill. In that case the court found that the bill was not a true bill and that corrections could not be made except by the court undertaking to prepare a new bill of the trial which consumed three days, and therefore disallowed it. In the answer, respondent averred that when a full transcript was presented he would allow it. In the opinion, written by Judge Richards, it is stated:

“We do not understand that a fair interpretation of this section [11566] requires the trial judge to personally make the correction, but it manifestly was his duty, if the bill could reasonably be corrected, to indicate to counsel the corrections that should be made in order to make the bill a true bill.”

In State, ex rel. Prudential Ins. Co., v. Price (1933), 45 Ohio App., 209, 186 N. E., 885, the court held that it not being charged or proved that the trial court abused its discretion in finding the bill was not a true bill, the Court of Appeals must assume the trial court’s conclusion to be true. But the decision in that case primarily turned on the fact that relator by his conduct had prevented the court from allowing the hill within time.

In a per curiam opinion in State, ex rel. Eges, v. Corlett (1940), 137 Ohio St., 19, 27 N. E. (2d), 930, the Supreme Court said:

“He [the trial court] is required only to make corrections in the bill of exceptions presented. It is not incumbent upon the trial judge to assume the burden and responsibility of making a bill of exceptions for an appellant.

" * * *

“But it is clearly disclosed by the pleadings that the bill of exceptions presented does not contain all of the evidence received and is therefore not a complete bill of exceptions. A trial judge will not be directed by a writ of mandamus to procure and supply the testimony and exhibits essential to meet the requirements of a complete bill of exceptions.

“This case is clearly distinguishable upon the facts from the case of Beebe, Judge, v. State, ex rel. Starr Piano Co., 106 Ohio St., 75, 139 N. E., 156.”

In an effort to harmonize the Corlett and Beebe cases, supra, we hold that a court can not be directed to prepare or complete a bill of exceptions in case a correct bill is not presented, but that it is its duty in such event to confer with counsel in an effort to secure a correct and proper true bill of exceptions. The answer in the instant case avers that the bill presented was not a true bill, but it fails to allege that the aid of counsel was sought and that upon presentation of a true bill of exceptions the respondent will allow and sign the same. The demurrer is therefore sustained, with leave to respondent to file an amended answer within two weeks.

Demurrer sustained.

Conn and Carpenter, JJ., concur.


author: Miller, P. J.

text:
    Spencer, Appellee, v. Spencer, Appellant.
    (No. 512
    Decided November 4, 1949.)

      Messrs. Miller £ Finney, for appellee.

      Mr. B. Stanley Lucas and Mr. Eldon L. Hayes, for appellant.
   Miller, P. J.

This is an appeal from a judgment granting a divorce to the plaintiff, appellee herein, Harold F. Spencer, Sr., on the grounds of extreme cruelty and adultery, and declaring certain real estate held' in the wife’s name to be held in trust for the plaintiff to the extent of $8,000. The appeal is noted as one on questions of law and fact but since the prime relief sought is a divorce the nature of the appeal governing divorce proceedings will control. The paramount relief sought governs the type of appeal. Brun dridge v. Goodlove, 30 Ohio St., 374; Fisher v. Bower, 79 Ohio St., 248, 87 N. E., 256; Wall v. Dayton Federation Co., 121 Ohio St., 334, 168 N. E., 847.

The record discloses that on August 30,1946, the defendant, appellant herein, Josie E. Spencer, filed her petition for divorce; that to that petition an answer and cross-petition was filed December 26, 1946; that proper service was had upon the parties and the cause came on for hearing on March 28, 1947; and that on April 17, 1947, the decision of the court was filed, the same not being journalized until May 5, 1948. Neither party was granted a divorce and the status of the real estate was not determined. Sometime after the decision of the court was rendered, but before the filing of the judgment entry, the plaintiff filed a supplement to the answer and cross-petition, and on January 27, 1948, an amended answer and cross-petition was filed and service was had upon the defendant. On April 14,1948, a motion was filed to the amended answer and cross-petition seeking a dismissal because of a misjoinder of causes of action. This motion was treated as a demurrer, which was sustained, the journal entry providing:

“This matter coming on now to be heard upon the amended answer and cross-petition and the motion of the plaintiff to strike the same from the files, the court finds that the said amended answer and cross-petition sets forth as to the amended cross-petition a cause of action which is improperly joined with the original petition and the original answer and cross-petition heretofore filed herein by the respective parties; it is therefore ordered that the defendant, Harold F. Spencer, separately file the amended cross-petition in a separate action, separately docketed and separately numbered, and the clerk of this court is directed to refile said amended cross-petition in a separate action as of the original date the same was filed, and that said amended cross-petition shall proceed in the name of Harold F. Spencer as plaintiff against Josie E. Spencer as defendant to final determination without further service of summons on the said Josie E. Spencer, and the said Josie E. Spencer is herein granted thirty (30) days within which to plead to said amended cross-petition, which for the purposes of the separate action shall be designated as an original petition and proceedings shall follow thereon as provided by law.” The foregoing order with reference to the redocketing of the case was made by virtue of Section 11312, General Code, which provides:

“When a demurrer is sustained on the ground of misjoinder of several causes of action, on motion of the plaintiff the court may allow him, with or without cost, to file several petitions, each including such of the causes of action as might have been joined; and an action shall be docketed for each of the petitions, and be proceeded in without further service.”

The record discloses that on May 5,1948, the amended answer and cross-petition was filed as ordered, a new case number was given and the case was styled as Harold F. Spencer, Sr., v. Josie E. Spencer. The amended answer and cross-petition was treated as a petition to which an answer was filed on May 18, 1948. The cause came on for hearing on October 25,1948, and it was agreed that the record of the hearing on March 28, 1947, be admitted in evidence only for the purpose of establishing the property rights. Trial was had on the question of divorce and some additional evidence was offered with respect to the property rights. The court found the defendant guilty of adultery and extreme cruelty as alleged in the petition.

The first assignment of error is that the court erred in granting a divorce to the plaintiff, Harold F. Spencer. The defendant is contending that the order of the court as entered on May 5, 1948, was a full and compíete adjudication of all matters in issue between the parties to this action and constitutes res judicata, and that the court was without jurisdiction to hear and determine the case upon the amended answer and cross-petition of Harold F. Spencer. The defendant is correct in her assertion that a judgment is not rendered until the entry is filed and that a judgment of dismissal is a bar to future proceedings in a new action in any court as to all grounds for divorce alleged in the petition so dismissed or that were known to the plaintiff to exist at the time of the filing of the petition. But that is not our case. The cross-petition alleges that the act of cruelty complained of was committed on May 8, 1947, which was after the first trial on March 28, 1947, and therefore could not have been in issue at that time. The journal entry of May 5, 1948, is clear upon this point, reciting that the judgment is based upon evidence submitted on March 28, 1947. The same situation is found to exist with regard to the charge of adultery, the cross-petition alleging that the acts were committed after May 8, 1947. The trial court expressly stated, in overruling the motion for new trial, that “the divorce was granted upon grounds which occurred after the former hearing and solely upon those grounds. ’ ’

We have examined the entire record and find that there is sufficient evidence to support the judgment. It is the sole province of the trial court to pass upon the credibility of the witnesses and the weight to be given to their testimony. We cannot disturb the finding of the trial court on that question.

The next error assigned is that the court erred in finding that the real estate in question was held by Josie E. Spencer in trust for the benefit of Harold F. Spencer, and fixing his interest in the sum of $8,000. The law seems to be well established that there is a presumption of gift where property is turned over to> a wife by her husband; that the burden of proving a resultant and constructive trust is upon the one claiming such trust; and that he must establish it by clear and convincing evidence. Creed v. Lancaster Bank, 1 Ohio St., 1; Cosgrove v. Pendleton, 24 Ohio Law Abs., 417. But the trial court found that the presumption of a gift had been overcome. The journal entry recites :

“Coming now to the question of property rights between the parties, the court finds from the evidence adduced that her actions immediately prior to and at the time of the transaction in which the farm was purchased was extremely- deceitful and that her efforts were calculated'to obtain title to the premises in her own name, then break off her relations with the defendant, plaintiff herein Harold F. Spencer, Sr. The court further finds that her course of conduct following the transaction corroborates the foregoing finding.

“The court further finds that from the evidence that any presumption of a gift from the husband to the wife was overcome by the evidence of coercion and deceit on the part of the wife in obtaining the property.”

We think that the record supports the conclusions of the trial court on this subject.

As we find no error in the record, the judgment is affirmed.

Judgment affirmed.

Hornbeck and Wiseman, JJ., concur.


author: By the Court.

text:
    Finlaw, Appellee, v. Hunter et al., Appellants.

      (No. 7007
    Decided June 29, 1949.)

      Mr. Walter K. Sibbald, for appellee.

      Messrs. Matthews <& Matthews, for appellants.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County.

We approve and adopt the following as correct statements of the rules of law of Ohio, applicable to the facts as disclosed by the record in this case, to wit:

1. When a subdivider conveys a lot with a boundary line abutting on a platted street, a presumption arises that he intends to convey to the center of the platted street. The presumption exists for several reasons. First, when monuments having width, such as rivers, trees, stakes, stones, and platted or existing streets are made boundary lines in deeds, it is the invariable rule that the boundary is the center line of the monument. Second, when the subdivider sells a lot abutting on a platted street, he is deemed to have received full value therefor and the buyer is deemed to have paid an increased price for the lot for the easement in or use of the street. Third, there is no reason for assuming that the subdivider intended to reserve the fee in the platted street, because its control or use, at the time he sells the abutting lot, ceases to be of any benefit or importance to him. Fourth, a covenant is implied from the platting of the streets and lots by the subdivider, creating an estoppel as the basis of the rights the buyer acquires in the street designated on the plat, especially when the deed refers to the plat. Fifth, it is the policy of the law to discourage separation of the title of a lot from the abutting strip of a street, which, after remaining in abeyance for years, may become the occasion of litigation. 5 Ohio Jurisprudence, 720, Section 17; 13 Ohio Jurisprudence, 791, Section 64; 8 American Jurisprudence, 772-774, Section 36; Id., 775-776, Sections 38 and 39.

2. It is well settled that where a grantor bounds the lot conveyed on a described street and is the owner of the land embraced therein, he is estopped to deny the right of the grantee to use the land for street purposes, whether it be in fact a street or not. And the same effect is given to a deed describing the lot conveyed by number and reference to an undedicated plat upon which the lot is shown to front upon a street. In such a case the easement which the grantee acquires is not limited to that part of the described street in front of his lot, but it extends to the whole street shown so far as it was owned by the grantor when the deed was executed. It is quite true that it has been held such a deed does not bind the grantor to open and maintain a street in a condition fit for travel; nor does it imply a covenant that the street is in such condition when the deed is made. The only effect is that as between the' grantor and grantee the latter may do nothing inconsistent with this right. Between them, it is a street. Nor did the fact that the plat was marked vacated or that in some of the deeds it was referred to as vacated prevent this result. The vacation of the plat affected only the public easement.

By the common-law rule of construction, a deed of land which describes it as bounding upon a street carries the fee of the grantor to the middle line of the street. In Ohio, the same general rule is in force. Paine, Exrx., v. Consumer’s Forwarding & Storage Co., 8 Ohio Fed. Dec., 580, 19 C. C. A., 99, 37 U. S. App., 539, 71 F., 626.

The conveyance from the subdivider, Silverton Heights Land Company, to Eva O. Hertwig, the defendant Ermine E. Hendricks’ predecessor in title, described the lot conveyed to her as “situated in the county of Hamilton, state of Ohio, being the northwest corner and part of the Silverton Heights Land Company’s subdivision, in Sycamore township, section 13, and Columbia township, section 18, containing 2.43 acres more or less, as platted in said company’s subdivision which is recorded in plat book No. 20, page 38 of Hamilton county, Ohio.”

This description is followed by a more particular description of the lot by metes and bounds, which in turn is followed by the words:

“Said property being northwest part of a 100 acre tract of land which was conveyed to said Silverton Heights Land Company, by Harry L. Kirtley and wife.”

Eva O. Hertwig conveyed the lot to her daughter, Ermine E. Hendricks, the defendant, by deed, in the description in which deed the plat is referred to in the same manner it is referred to in the above mentioned deed from Silverton Heights Land Company to Eva O. Hertwig.

The defendant Hendricks, through such conveyance, is now the owner of the title to the lot.

As the descriptions in both deeds under which the ■defendant Hendricks claims title to the lot refer to the plat of the subdivision, of which the lot is a part, as a ■definite and integral part of such description, the plaintiff, who acquired title to the lots she now owns through mesne conveyances from the subdivider of the platted subdivision, under the rules of law above mentioned, is estopped from claiming the tract of land platted and designated as Kanawha avenue reverted to her in fee simple as the grantee by mesne conveyances from the subdivider of the tract. She is estopped further, as against the defendant Hendricks, from ■denying the existence of Kanawha avenue and defendant’s right to use it as a street, and from denying that the rights' of abutting land owners in the real estate ■embraced in such avenue are not the same as if the ■dedication of the avenue had been duly accepted by the proper public authorities, notwithstanding the dedication was never accepted by public authorities authorized to accept the same.

The dedication of Kanawha avenue never having been accepted by public authorities authorized to do so, the vacation of the same by the Board of County ■Commissioners of Hamilton County did not in any way affect the right of the parties to or in such avenue and the real estate embraced in the same.

By virtue of the estoppel above mentioned, the defendant Hendricks had the right either to have such avenue kept open for the purpose of ingress to and ■egress from the lot owned by her, and for the enhancement in value of the lot, or to assent to the same being vacated, in which event she, as the abutting owner, would have the title in fee simple to the center of the avenue free from any easement of the plaintiff.

From the record in this case it appears that the parties hereto both desire to have Kanawha avenue vacated and free from any easement to which the other may be entitled, and each desires to have the title in fee simple to the portion of the real estate embraced in Kanawha avenue to which she would be legally entitled in case the avenue had been legally vacated, free from any easement of the other thereon, so that for the purposes of this case the assent of both parties to the vacation thereof may be presumed.

For the reasons mentioned, the judgment of the Common Pleas Court, adjudging that the plaintiff is the owner in fee simple of all the real estate embraced in Kanawha avenue as platted, will be reversed as being contrary to law, at the costs of appellee, and this court, rendering the judgment the Common Pleas Court should have rendered, will render judgment that the plaintiff owns in fee simple absolute that portion of the real estate embraced in Kanawha avenue • as platted, upon which the lots owned by her abut, to the center of the avenue as platted, and that the defendant is the owner in fee simple absolute of that portion of the real estate embraced in Kanawha avenue as platted, upon which the lot owned by her abuts, to the center of the avenue as platted, and that plaintiff’s title be registered accordingly.

Judgment accordingly.

Guernsey, P. J., Middleton and Jackson, JJ., concur.

Guernsey, P. J., Middleton and Jackson, JJ., of the Third Appellate District, sitting by designation in the First Appellate District.


author: Griffith, J.

text:
    Shewell et al., Appellants, v. Board of Education of Goshen Union Local School Dist., Appellee.
    (No. 3344
    Decided July 1, 1950.)

      Mr. A. L. Baker and Mr. George Edwards, for appellants.

      Mr. Robert A. Manchester II and Messrs. Harrington, Huxley S Smith, for appellee.
   Griffith, J.

This cause is before this court on appeal on questions of law and fact. It is a suit for the purpose of quieting title to a certain piece of land.

Carl and Eva Shewell filed their petition, alleging that they are the owners in fee simple of 39.acres, described in the petition, ‘ ‘ subject, however, to the right ■of the township school board in one-fourth of an acre of land in the southwest corner of said tract used for school”; that it has been abandoned by the board of education; and that the plaintiffs are entitled to have the title quieted in them.

'The' defendant board of education claims title by virtue of its chain of title as to the one-fourth acre described in the deed and, also, by adverse possession as to the enlarged portion.

It is.clear that Peter and Hannah Masten, by deed of April 10, 1863, conveyed all their title to the premises.

Did they convey to Hinchmans the lot in question •subject to a mere use by the board of education? In ■other words was the provision, ‘ ‘ except the right owned by the school district or board of education -as the case may be, to about one fourth of an acre of land now used as a school house lot,” an expression of a permissive use or did these words carve out a fee simple title from the acreage?

The defendant is in actual possession of the real estate in question, and has been in the actual and exclusive possession thereof since the year 1863.

There are two sets of persons claiming title in fee ■simple to this' property, namely, the Board of Education of Goshen Union Local School District and Carl and Eva Shewell.

The deed, which was made by John and Hannah Masten in 1863 to the Hinchmans, after describing the acreage by metes and bounds recited the following: * ‘ * * * except the right owned by the school district or board of education as the case may be to about one fourth of an acre of land now used as a school house lot.”

Did the Mastens, by this recitation, convey any title whatsoever to the Hinchmans in the school lot?

If they did not, then the plaintiffs, who are the present owners of the acreage through various mesne conveyances, have no title whatsoever in the lot.

What is the meaning of the phrase, “the right owned, ’ ’ as used in the deed ?

A covenant for quiet enjoyment is a covenant for possession; and that of “seisin” is a covenant for ' title, the word being used as synonymous with “right.” Price v. Deal, 90 N. C., 290.

A covenant of “seisin” has generally been regarded as a covenant for title, the word being used as synonymous with ‘ ‘ right.’’ Kincaid v. Brittain, 37 Tenn., 119. See, also, 37 Words and Phrases, 623.

The word, “own,” standing alone and unqualified by reference to a lesser estate, means a complete ownership of land in fee simple. Ramsey v. Leeper, 168 Okda., 43, 31 P. (2d), 852. The word, “own,” is a synonym of “possess.” To own is to have a good legal title to. State v. Lowry, 166 Ind., 372, 77 N. E., 728, 4 L. R. A. (N. S.), 528.

The words, “owned by,” mean an absolute and unqualified title, whereas the words, “belonging to,” do not import that the whole title to property or thing is meant, for a thing may belong to one who has less than an unqualified and absolute title.

The Hastens excepted the right owned by the board of education. This is not an exception of a permissive use; it is an exception of a fee simple title, the effect of which is the same as though the description of the acreage had excluded the school lot entirely.

The actual land which is in dispute in this case- is slightly over one acre, as described in the defendant ’» cross-petition, whereas the exception in the Hasten deed is one-fourth of an acre; and there is a conflict of testimony with respect to the matter of fencing on the north and east sides of this lot. However, it is admitted by all that the one-acre tract goes to the center of both highways, and that may account for a part of the discrepancy.

We are of the view that there has been an extension of lines on the north and east sides of this lot down through the years, increasing the size ■ of the lot to 1.025 acres.

As to the one-fourth acre of land excepted in the Hastens’ deed, there not only is a presumption of grant (lost or destroyed deed), but, in addition to that presumption, there is the acknowledgment of the Hastens that the board of education owned the right to this land.

As to the title to the portion of land, whatever it may be, which enlarged the original area, the board acquired this area by adverse possession.

The cross-petition asks that the title of the Board of Education of Goshen Union Local School District be quieted as against the claims of the plaintiffs. That the court will do, because the court finds that they have no interest in the property comprising 1.025 acres of land, and the title will be quieted in the board of education so far as the plaintiffs are concerned.

We find that the defendants named in the cross-petition of the board of education, save and except the Suburban Power Company through its successor, Ohio Edison Company, do not have any estate or interest in the premises; and that the Ohio Edison Company has maintained its electric lines and right of way across the premises for more than 21 years and has acquired a prescriptive right to maintain the same.

Juclgm ent accordingly.

Phillips, P. J., and Nichols, J., concur.


author: Per Curiam.

text:
    Pollard, Appellant, v. O’Connor, Appellee.
    (No. 7232
    Decided May 15, 1950.)

      Mr. Frecl L. Hoffman, for appellant.

      Mr. Robert G. McIntosh, for appellee.
   Per Curiam.

Plaintiff, who was a passenger in an automobile being driven west on Losantiville avenue by her husband, was injured when it collided with an automobile being driven south on Fairhurst avenue by the defendant in the northwest quarter of the intersection of -such avenues.

The streets named are of equal sanction, so that, although defendant, approaching from the right, had the right of way, no question of contributory negligence on the part of the husband may be imputed to this plaintiff.

The court instructed a verdict for defendant at the close of plaintiff’s evidence, and the appeal on questions of law is from that judgment.

It was dark, there had been a drizzle and the surface of the streets was wet.

Plaintiff’s husband testified in substance that the front of his car had reached a point approximately five feet west of the east curb line of Fairhurst avenue when he saw defendant’s car approximately 30 feet north of the north curb line of Losantiville avenue; that when he reached a point where the front of his car was about 10 feet west of the west curb line of Fairhurst avenue, leaving about six feet of the rear part of the ear in the northwest quarter of the intersection, defendant, while making a right turn, struck the right rear fender and wheel of his car; that defendant first denied, then admitted that he did not stop at the intersection ; and that defendant did not blow his horn.

This testimony is corroborated by the witness Vogt, who was standing about a 100 feet away on the south sidew'alk of Losantivillé avenue.

There are certain ambiguities in the testimony of the defendant, called as on cross-examination, which must be resolved against him for the purposes of the motion, such as:

“Q. Now Mr. O’Connor, you didn’t blow' your horn before you entered the intersection? A. Yes sir.”

Construing this testimony most strongly in favor of the plaintiff for the purposes of the motion, it raises the issue of whether the defendant had lost his preferential right and exercised due care by turning in the intersection. Upon such issues, it seems to the court, reasonable minds might differ, so that it was error to direct a verdict for the defendant.

• The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Ross, P. J., Hildebrant and Matthews, JJ., concur.


author: Wiseman, J.

text:
    Shively, Appellant, v. Shively et al., Appellees.
    (No. 2086
    Decided May 25, 1950.)

      Messrs. E. E. <3 W. B. Turner and Mr. Clinton 8., Courson, for appellant.

      Mr. Irvin Carl Delscamp, for appellee Walter OShively.

      Mr. Robert E. Cowden, for appellee John H. Shively, Sr.
   Wiseman, J.

This is an appeal on questions of law from the Common Pleas Court of Montgomery County, Division of Domestic Relations, in which the court decreed a divorce and alimony to the plaintiff.

Plaintiff appeals from the judgment for the reason that the court denied the plaintiff the right to an award of alimony out of the defendant’s assigned distributive share of the proceeds of the sale of the residence which was jointly owned by plaintiff and defendant and which was sold in a partition action in the Common Pleas Court' of Montgomery County.

The defendant, Walter O. Shively, filed a cross-appeal claiming that the alimony awarded the plaintiff is grossly excessive.

With respect to the factual matters, both appeals are submitted to this court on the separate findings of fact and conclusions of law rendered by the trial court. No bill of exceptions has been filed.

The trial court found that the husband and wife acquired and at the time of the filing of the divorce action each owned an undivided one-half interest in a piece of real estate used as their residence. The husband separated from the wife in 1946. The husband, on December 19,1947, filed an action in partition in the Common Pleas Court in Montgomery County, praying for an order requiring the wife to suffer the sale of her interest therein. That the husband was entitled to an order of partition against the wife was decided by this eoiirt in Shively v. Shively, 54 Ohio Law Abs., 527, 88 N. E. (2d), 280. The opinion of this court on that question was rendered November 23, 1948.

The findings of fact show further that the husband contracted debts and was hopelessly insolvent. The husband’s brother, who was made a party defendant in this divorce action, loaned the husband $10,000 and cosigned his note for an additional $10,000 to pay such debts. As security therefor, in April 1948, the husband assigned to his brother his distributive share of the partition sale proceeds. This assignment was recorded on January 10,'1949.

On January 17, 1949, the wife filed this action for divorce and alimony on the grounds of gross neglect of duty and extreme cruelty, and specifically described the residence property which was later sold on partition. The defendant filed a cross-petition for divorce on the grounds of gross neglect of duty and extreme cruelty. In that action the wife moved for a temporary injunction to prevent the husband and his assignee from selling the residence property in the partition action. The motion was denied. Thereupon, the wife filed an action in mandamus in the Supreme Court to compel the respondent judge to allow a temporary restraining order in the" divorce action restraining the parties in the partition action from proceeding with the sale of the property. That matter was presented to the Supreme Court on demurrer to the petition. The opinion of the court in that case is reported under the title, State, ex rel. Shively, v. Nicholas, Judge, 151 Ohio St., 179, 84 N. E. (2d), 918. The court held that a writ of mandamus may be employed to require the exercise of judicial discretion but not to control it. On page 181, in discussing the partition action and the effect of this court’s final order on appeal, the court said:

“In the partition action the relatrix did avail herself of this remedy, and the Court of Appeals affirmed the •decree of the Court of Common Pleas. The fact that the relatrix was unsuccessful in that appeal does not entitle her to substitute a writ'of mandamus as an indirect means of perfecting a second appeal.

“In the divorce action the only matters presented to the respondent judge were the requests of the relatrix for a temporary restraining order and for temporary alimony. In denying a restraining order the respondent properly observed that the decree ordering the sale in the partition action had been affirmed by the Court of Appeals and had become final. The respondent trial judge hardly could be required or expected to reverse or interfere with a valid judgment of the Court of Appeals. ’ ’

After the decision of the Supreme Court was announced in the mandamus action, an order of sale was taken in the partition action. The property was sold in April 1949. On April 30, 1949, the court, in the divorce action, issued a temporary order against the sheriff of Montgomery county, Ohio, restraining him from disbursing any of the proceeds of the sale, except for the payment of costs, until the final determination of this action.

The divorce and alimony action came on to be heard before Honorable Huber A. Beery, Judge of the Common Pleas Court of Shelby County, who sat by assignment as a judge of the Common Pleas Court of Montgomery County. His opinion was announced on June 29, 1949. On request of the wife, the court rendered separate findings of fact and conclusions of law on August 8, 1949.

The trial court dismissed the defendant’s cross-petition and granted a divorce to the plaintiff on the ground of gross neglect of duty and extreme cruelty, and awarded her alimony. No question is raised with respect to granting the divorce to the wife. With respect to the husband’s assigned distributive share in the proceeds of the sale of the residence property which was sold in the partition action the trial court rendered conclusions of law as follows:

“3. This court has jurisdiction to award the wife alimony out of the husband’s distributive share of the partition sale proceeds as against the husband had there been no valid assignment prior to the issuance of the temporary restraining order.

‘ ‘ 4. The assignment by the husband to his brother of the husband’s distributive share of the partition sale proceeds prior to the filing of this action creates intervening rights in the husband’s brother and cuts off and is preferable to the wife’s right to such an award as against the brother, no fraud having been shown in the trial of the cause by the wife.

“5. The plaintiff, Adele Shively, has no right to alimony out of Walter O. Shively’s distributive share of the proceeds of the sale of the real estate owned by said Walter O. Shively and said Adele Shively, and sold in said partition suit in the Common Pleas Court of Montgomery County, Ohio, as against the defendant, John H. Shively, Sr.

“7. The assignment by Walter O. Shively to John PI. Shively of his distributive share of the proceeds of the sale in the partition suit filed by Walter O. Shively against Adele Shively, being case No. 98502 in the Common Pleas Court of Montgomery County, Ohio, was made to secure the payment of a valid indebtedness in the amount of $20,000 owing by' said Walter O. Shivély to John H. Shively at the time such assignment was made, and such assignment was without intent, either by Walter O. Shively, the assignor, or John H. Shively, the assignee, to defraud the plaintiff of her right to alimony in defendant’s property; and such assignment was made prior to the filing of the plaintiff’s petition in this action and the obtaining of a temporary restraining order against the defendant from transferring’ his property. ’ ’

The plaintiff assigns as her first’ ground of error the refusal of the trial court to restrain the husband and Ms brother from selling the residence property and evicting her from the property through the medium of the husband’s partition action. This court held in Shively v. Shively, supra, that the husband may maintain an action in partition against the wife. No appeal was taken from the judgment of this court. The right to institute and prosecute an action in partition includes the right of the court to make such orders as will be necessary to carry the action to a complete consummation. The giving of possession to the purchaser, which would require the eviction of the wife, the payment of costs of sale, including compensation to the attorney for the plaintiff for legal services rendered in the partition action, fall in this category.

■ The granting, or refusal to grant, a restraining order under the facts fell within the sound discretion of the trial court. State, ex rel. Shively, v. Nicholas, Judge, supra. The trial court exercised its discretion by refusing to grant a restraining order at that stage of the proceedings. With respect to such order we find no abuse of discretion. Subsequently, and seasonably, the trial court did grant a temporary order restraining the sheriff from distributing the proceeds of the sale until the final determination of the action for divorce and alimony. This restraining order protected the plaintiff in the event the court should later find the assignment to the brother to be invalid and, also, found that the plaintiff was entitled to an award of alimony out of the husband’s distributive share of the proceeds of the sale.

The plaintiff contends for her second assignment of error that the trial court erred in denying the wife’s right to an award of alimony out of the husband’s interest in the home itself or out of “assigned distributive share of the partition sale proceeds.” Under this assignment of error counsel for plaintiff urges two propositions:

“Issue I. The prior-attaching jurisdiction in the husband’s action to partition the jointly-owned home did not exclude or bar the trial court from subsequently acquiring the jurisdiction in the wife’s Domestic Relations action to award the wife alimony out of the husband’s undivided interest in the home itself.

“Issue II. Such subsequently acquired jurisdiction in the wife’s Domestic- Relations action superseded, prevailed over and rendered nugatory the prior-attaching jurisdiction in the husband’s partition action.”

Plaintiff contends that from the filing of the action for divorce and alimony the jurisdiction of the court in the partition action was ousted. The question of law raised is of some importance due to the practice of filing a partition action by either the husband or wife against the other before a divorce action is instituted. Counsel for plaintiff approach this matter from the viewpoint of conflict of jurisdiction. It is conceded that the general rule is that as between courts of concurrent and coextensive jurisdiction, the court whose power is first invoked acquires the right to adjudicate upon the whole issue, to the exclusion of all other tribunals. 11 Ohio Jurisprudence, 726, Section 81.

But it is claimed that the issue presented here requires the application of the well-established exception to-the general rule, which is that the general rule has no application where the powers of the court first acquiring control of the subject of the litigation are so far limited, or defective, as to be unable to afford that relief to the parties to which they are either legally or equitably entitled. 11 Ohio Jurisprudence, 730, Section 83; 14 American Jurisprudence, 436, Section '243. In support of the last-mentioned rule plaintiff cites numerous cases.

In Dwyer v. Garlough, 31 Ohio St., 158, it was held that a prior assignment for the benefit of creditors does not exclude or bar a subsequent mortgage foreclosure action in the Court of Common Pleas. In that case the court points out that the Probate Court was limited in its remedy in that it could not sell inchoate dower rights, whereas the mortgagee could foreclose since the wife had signed the mortgage. In Robinson v. Williams, 62 Ohio St., 401, 57 N. E. 55, a foreclosure in the Common Pleas Court proceedings prevented a sale by assignee in the Probate Court. However, the court points out that the inadequate remedy in the Probate Court was due to the fact that other property was involved in the foreclosure action which was not embraced in the assignment. In Hatch, Exrx., v. Tipton, 131 Ohio St., 364, 2 N. E. (2d), 875, it was held that a prior partition action would not prevent a subsequent land sale proceeding in the Probate Court by the executrix of one of the cotenants who died after the partition action had been instituted. Here again the court points out that the land sale proceedings afforded a more complete remedy. The case really turned on the effect of Section 10510-10, General Code, which permits the sale of a fractional interest in a land sale proceeding in the Probate Court, and the owners of other fractional interests may be made parties defendant and their interests subjected to a sale. In Stout v. Stout, 82 Ohio St., 358, 92 N. E., 465, the court held that it is the duty of the personal representative of the decedent to institute a land sale proceeding to pay debts unless the requisite bond is interposed. In Retterer v. Retterer, 20 Ohio Law Abs., 393, 32 N. E. (2d), 513, the court rests its opinion on the duty enjoined on the administratrix to institute a land sale proceeding to pay debts under the provisions of Section 10510-2, General Code, notwithstanding the prior filing of a partition action. See Section 10510-52, General Code. The court, in Allen v. Million, 35 Ohio Law Abs., 13, 39 N. E. (2d), 880, follows the Retterer case. It has been held that the mere filing of a foreclosure action in a Court of Common Pleas, without a showing of more, does not in and of itself oust jurisdiction of the Probate Court in a prior assignment proceedings. Havens v. Horton, 53 Ohio St., 342, 41 N. E., 253. In Fourman v. Fourman, 20 Ohio Opinions, 54, Judge Mills of the Common Pleas Court of Montgomery County, decided that while an: action for divorce and alimony was pending between the husband and wife in the Court of Domestic Relations, a partition suit can be filed in the Court of Common Pleas of the same county, making the plaintiff in the divorce case defendant in the partition suit. In that case the court very properly applied the doctrine-of lis pendens inasmuch as the property in question was specifically described in the divorce action.

In the instant case, the doctrine of lis pendens applies and, therefore, affected the rights of any person dealing with the property in question after the institution of the action for divorce and alimony inasmuch as the action for divorce and alimony specifically described the property sought to be sold in the partition action. No injunctive order was necessary. Cook v. Moser, 108 Ohio St., 30, 36, 140 N. E., 590; Railroad Co. v. Brennan, 50 Ohio St., 589, 34 N. E., 1089; Tolerton et al., Exrs., v. Williard, 30 Ohio St., 579; Fletcher v. Fletcher, 15 C. C., 271, 7 C. D., 605; and Shafer v. Buckeye State Building & Loan Co., 37 Ohio Law Abs., 62, 45 N. E. (2d), 421. However, it is not necessary to apply the doctrine of lis pendens to the rights of the assignee of the husband,'and no injunctive order against him was necessary for the reason that the assignee of the husband is made a party defendant to the divorce- and alimony action.

In Locsaj v. Angelo (unreported), the Court of Appeals for Belmont County recently had before it am appeal in a divorce and alimony action and also an appeal in a partition action involving the same parties. The court held that the partition action could be maintained. However, it does not appear that the questions -raised herein were presented to the court in that case. That case is now pending in the Supreme Court. It does not follow that because a land sale proceeding in Probate Court supersedes and renders nugatory a partition action in the Common Pleas Court, which was held in Hatch, Exrx., v. Tipton, supra, that a divorce and alimony action supersedes and renders nugatory a partition action filed in the same court.

We now consider the nature of the actions involved and the extent of the jurisdiction of the court in each action. An action for divorce is statutory and not equitable. McPherson v. McPherson, 153 Ohio St., 82, 91, 90 N. E. (2d), 675; Mark v. Mark, 145 Ohio St., 301, 308, 61 N. E. (2d), 595. An action for alimony does not invoke the equity powers of the court, but is controlled by statute. In re Cattell, 146 Ohio St., 112, 119, 64 N. E. (2d), 416; Durham v. Durham, 104 Ohio St., 7, 9, 135 N. E., 280; Marleau v. Marleau, 95 Ohio St., 162, 165, 115 N. E., 1009; DeWitt v. DeWitt, 67 Ohio St., 340, 347, 350, 66 N. E., 136; Owens v. Owens, 85 Ohio App., 414, 88 N. E. (2d), 922; McQuain v. McQuain, 55 Ohio App., 505, 509, 9 N. E. (2d), 893. Manifestly, the trial court in the instant divorce and alimony action exercised a limited jurisdiction, only that given by statute, and could not invoke equity' powers.

Although a statutory action in partition is a civil action under the Code, it is equitable in nature. 30 Ohio Jurisprudence, 880, 882, 885, Sections 49, 51, 53. In a partition action the court may invoke the powers of a court of chancery. Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397; Smith v. Rymkus, 73 Ohio App., 225, 228, 55 N. E. (2d), 676. The Common Pleas Court of Montgomery County, in the partition action, exercised general equitable powers. It has been held that where a court of law and a court of equity have concurrent jurisdiction the latter will, in certain instances, prevail over the former. In Dwyer v. Garlough, supra, the court on page 160, held:

“Where a court of law and a court of equity have concurrent jurisdictions over the same subject,.it frequently happens that the former tribunal, because of 'inadequate or limited powers, is unable to afford that relief which a party has a right to demand, and which a court of equity is fully competent to give. In such case, a court of equity is clothed with complete jurisdiction, and if necessary to the full protection of the rights of a party, will enjoin further proceedings in the action at law. ’ ’

The jurisdiction of the court first acquiring control over the subject of the litigation will be required to yield to a second action only where the court in the second action has the power to grant all the relief asked in the first suit and some additional remedy, in which its jurisdiction is found to be more adequate and complete. The inability of the court in the divorce and alimony action to exercise the powers of a court of general jurisdiction required in the prosecution of the action in partition is easily recognizable. The dissimilarity of. the two actions and the relief sought is apparent. A temporary restraining order was granted, restraining the disbursing of the funds in the partition action until the final determination of the divorce and alimony action. This order was wholly effective to protect such rights in the fund as the wife may be given by decree, if any. It is conceivable that upon the final determination of the divorce and alimony action the court may decide not to give the wife any’alimony or at least not subject the husband’s interest in the real estate to a charge or a lien for the payment of alimony. The court, having found the assignment of the husband’s interest to the brother to be valid, did not decree alimony to the wife out of this fund.

While we have discussed at length the question of conflict of jurisdiction because it was urged so strongly by counsel for the plaintiff, we are of the opinion that a rehl conflict of jurisdiction did not exist. The partition action and the divorce and alimony action were tiled in the same county and in the same court. The two actions were dissimilar in character, the one statutory and the other equitable in nature. Under Section 1532, General Code, the judge of the Division of Domestic Belations is a judge of the Common Pleas Court of Montgomery County. The same court had jurisdiction of both actions. The court had a right to proceed to a sale of the property in the partition action. The court in the divorce and alimony action had a right to and did temporarily enjoin the distribution of the fund.

We find no basis for the contention that the filing of the divorce and alimony, action ousted the jurisdiction of the court in the partition action.

Was the right which the husband had in the proceeds of the sale of the real estate assignable? We think it was. In 3 Ohio Jurisprudence, 246, Section 3, the rule is stated as follows:

“It may be stated as a general rule that all rights ad rem and in re, vested or contingent, possibilities coupled with an interest, and claims growing out of and adhering to property, both ex contractu and ex delicto, may pass by assignment.”

In Comer v. Dodson, 22 Ohio St., 615, the syllabus in part reads as follows:

“Where one of the parties in a proceeding in partition, during the pendency of the case, assigned to several persons specified amounts of Ms share of the money to he realized from a contemplated sale of the land, and afterward a creditor of the same party obtained judgment against him and levied an execution on his undivided interest in the land, also at the same time proceeded by cross-petition to subject such interest to the payment of the judgment, and the proceeding in partition resulted in a sale of the land: Held—

“1. The lien acquired by the judgment creditor on the interest of the debtor in the land, was divested by the sale in partition, and his equitable right to that portion of the proceeds of the sale belonging to the debtor, having accrued after a part thereof had been assigned by the debtor, is subordinate to the rights of the assignees, and, in the distribution of the fund, the amount assigned to them-must be-first paid.”

In Shafer v. Buckeye State Building & Loan Co., 37 Ohio Law Abs., 62, 45 N. E. (2d), 421, this court, in following the Comer case, held':

“2. A cotenant in a partition proceeding may, during its pendency, transfer his interest or encumber it, which may not affect the principal purpose of the suit, namely, to apart the land or to sell it, and if it be sold under court order, the rights and priority of those claiming under the cotenant will be transferred to the fund produced by the sale of the cotenant’s share of land.”

See, also, Furguson v. Cackler, 4 N. P., 392, 6 O. D. (N. P.), 419.

The trial court found in the instant case that the assignment to the brother was made in good faith and for value, and that it was not made for the purpose of defrauding the plaintiff. The assignment was made and recorded in the partition suit prior to the time the divorce action was instituted. The assignment was valid and effectual to bind the husband’s interest in the proceeds of the sale of the real estate.

We now consider the cross-appeal filed by the defendant. For his only assignment of error the defendant claims that the alimony awarded plaintiff is grossly excessive. When a divorce is granted to a wife for the aggression of a husband, she shall be allowed such alimony out of his property as the court deems reasonable and equitable. Sections 11990 and 11991, General Code. 14 Ohio Jurisprudence, 465, Section 74. The court should consider the pecuniary circumstances and earning capacity of both parties in fixing the amount of alimony to be allowed. 14 Ohio Jurisprudence, 476, Section 81. Broad discretion is allowed the trial court in making an award of alimony and unless the action taken is manifestly unjust and inequitable the award will not be disturbed. The amount of the allowance, in the discretion of the court, may be determined with respect to the necessities of the wife and the financial ability of the husband. The appellate court, in reviewing the judgment of the trial court, has the power to review the exercise of judicial discretion by the trial court. McGinnis v. McGinnis, 9 Ohio App., 81; Hathaway v. Hathaway, 3 Ohio Law Abs., 228; Wirth v. Wirth, 5 Ohio Law Abs., 148; Rodenberg v. Rodenberg, 35 Ohio Law Abs., 475, 41 N. E. (2d), 266; Potts v. Potts, 40 Ohio Law Abs., 54, 67 N. E. (2d), 352; Mooney v. Mooney, 48 Ohio Law Abs., 229, 74 N. E. (2d), 272.

In the instant case the trial court found that the husband, for a period of 19 months after he left the home, contributed twenty dollars per week toward the wife’s support; that the wife had in her possession all the property owned by the husband, or in which he held an interest, as follows:

Proceeds in the amount of $434.36 derived from the sale of U. S. bonds issued in the name of husband and wife; 20 shares common stock National Cash Register Company in name of hnsband; 20 shares common stock in Allied Stores, Inc., in name of husband; 20 shares common stock in Coty, Inc., in name of husband; 20 shares common stock in Coty, Int., in name of husband; $507.18 in cash withdrawn by the wife from a joint account in Peoples Bank, on or about March 16, 1946; household furniture and equipment of every kind formerly in the residence occupied by the husband and wife; and a $2,000 life insurance policy issued on the life of the husband in which the wife is designated as beneficiary.

The trial court further found that the husband has no other property except his future personal earning’s and is indebted in a total amount of $13,500.

As hereinbefore stated, the court found the assignment to the brother of the husband’s distributive share of the proceeds of the sale to be valid, and that the wife was not entitled to alimony out of this fund. The court, in its final order, dissolved the restraining order issued against the sheriff restraining him from distributing the proceeds of the sale. After the appeal was perfected, this court issued an order against the ■ sheriff restraining him from distributing the proceeds of the sale in the partition action.

No doubt a complete bill of exceptions would have disclosed how and from what source the property was acquired, the value of the property, the age of the parties and their state of health, the husband’s earning-power and other facts which the court may consider in determining an award of alimony. A complete record would have been extremely helpful in determining whether the award was fair and just. Although the findings and the decree are silent on the matter, it is admitted in the pleadings that there are no children. The answer alleges, and it is not denied, that the wife was about 55 years of age and the husband about 50 year of age. The husband alleges in his answer, which is not denied, that he purchased the United States' bonds and the shares of stock in the National Cash Register Company, Allied Stores, Inc., Coty, Inc., and Coty, International; and that he purchased with his own money all the household furniture before and after their marriage, which is reasonably worth $1,500. The trial court made no finding with respect to these matters. The failure to so find does not deprive the reviewing court of the right to consider such admitted and uncontroverted facts. Under Section 11329, General Code, every material allegation of new matter in an answer not controverted by the reply shall be taken as true. See Oliver v. Moore, 23 Ohio St., 473; Reiff v. Mullholland, 65 Ohio St., 178, 62 N. E., 124; Rothman v. Engel, 97 Ohio St., 77, 119 N. E., 250.

The award of alimony is as follows:

“It is further ordered that plaintiff be awarded as and for her alimony from the defendant herein all stocks, bonds, furniture, household goods and the balance of cash from jointly owned bonds previously sold by plaintiff, together with the sum of twenty four hundred ($2,400) dollars, payable at the rate of one hundred ($100) dollars per month from the earnings of the defendant, Walter O. Shively, beginning the first month after the entry granting ¿he divorce and alimony.to the plaintiff in this case becomes effective.”

Under the decree the wife will receive all the property owned by the husband, or jointly owned, and all money, amounting to approximately $941.54, all shares of stock and household furniture, and in addition the husband is directed to pay the wife $2,400 out of his future earnings.

It will be noted that the statutes (Sections 11990 and 11991, General Code) authorize the court to award such alimony out of the husband’s property as the court deems reasonable and equitable. Formerly, the, rule, which is still adhered to in some jurisdictions, was that an award of one-third or one-half of the property of the husband was deemed reasonable and equitable. 17 American Jurisprudence, 469, Section 600. However, the modern trend is to award a much larger share to the wife if' the circumstances warrant such larger award. The Ohio cases follow the more liberal rule. In 27 Corpus Juris Secundum, 970, Section 236, the general rule, which seems to be the Ohio rule, is stated thus:

“There is no fixed rule for the determination of the amount of alimony; the amount to be awarded depends upon all the relevant circumstances, in the light of which it must be just and reasonable. The determination of the amount rests in the sound discretion of the court.”

On page 978, Section 236, the text is as follows: “While it has been held that an award of all the husband’s property to the wife is unwarranted, there are cases in which this has been done. ’ ’

In the footnote three cases are cited where the whole estate of the husband was awarded to the wife. In Simpson v. Simpson, 201 Ky., 282, 256 S. W., 412, the court held that in no case is the chancellor warranted in taking all the property of the husband as alimony for the wife. Mitchell v. Mitchell, 39 Wash., 431, 81 P., 913, where. the wife was sickly and had the care of minor children, all the property being valued at $1,600 and where the husband was strong and able-bodied, the court upheld the award of all the property to the wife. In Ramsdell v. Ramsdell, 47 Wash., 444, 92 P., 278, where the wife had the care of a minor child, ,all the property of the husband of the value of $2,400 was awarded to the wife, and this award was not disturbed by the reviewing court.

While it is conceded that there may be circumstances under which it would be reasonable and equitable to award all the property' of the husband to the wife as alimony, one member of the court does not believe that the facts and circumstances in this case justify such award; and that the statutes controlling do not authorize the court to impoverish the husband, or award alimony as punitive damages. 27 Corpus Juris Secundum, 970, 971, Section 236. One member of the court believes that where there are no minor children involved, and where from the state of the record it may reasonably be found that all the property owned by the husband, or jointly with his wife, was acquired through the husband’s own efforts before and after the marriage, a decree awarding all such property to the wife as alimony, and directing the husband to pay to the wife $2,400 in installments out of his future earnings, leaving the husband without any property whatever and with a valid indebtedness of $13,500, is neither reasonable, just, nor equitable. The majority of the court is of opinion that we may not say the award is excessive. The trial judge had the right to make determination as to an equitable award of the property and to consider the most appropriate means of assuring to the plaintiff the full amount of that award. The court had the right to make an alimony award in a lump sum, payable at once or in installments, which would include support for the plaintiff. There was a disparity of five years in the ages of these parties. Piad the court made an award for support of $100 per month to the plaintiff it would not require many months to equal the total value of the property decreed to the plaintiff. In the light of the fact that the defendant had been improvident and had spent beyond his means and had incurred heavy indebtedness, the trial judge may have concluded that the only safe procedure to assure the payment of a sum to which the plaintiff would clearly be entitled would be by an award of the tangible property which the court could reach. In the situation thus presented to the trial judge we cannot say that the award in the amount and the form in which it was ordered is excessive.

The judgment will therefore be affirmed and the restraining order heretofore issued against the sheriff dissolved.

Judgment affirmed.

Miller, P. J., and Hornbeck, J., concur.


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    In re Application of Village of Eastlake for Division of Township Funds and Assets: Township of Willoughby, Appellant, v. Village of Eastlake, Appellee.

      (No. 485
    Decided March 16, 1950.)

      Mr. Thomas T7. Blakely, prosecuting attorney, and Mr. A. C. Knight, for appellant.

      Mr. Wayne E. Davis, for appellee.
   Griffith, J.

This proceeding involves the question of a proper division with the village of Eastlake of the real and personal property of the township of 'Willoughby and of the funds for township purposes in the treasury or in the process of collection.

The village of Eastlake became a municipal corporation on September 9, 1948, it being a part of the area formerly included in the township. The first election of municipal officers was held on January 11, 1949. On January 25, 1949, the village filed its application with the Probate Court of Lake County for a division of funds pursuant to Section 3544 and related sections of the General Code.

The matter came on for hearing on May 27, 1949, before the Probate Court of Lake County, and was submitted on an agreed statement of facts and stipulations of counsel for the township of Willoughby and the village of Eastlake.

From the judgment and order of the Probate Court the township filed an appeal on questions of law, and a few days later the village filed an appeal (or cross-appeal) on questions of law.

The township assigns nine errors of law in the finding of the trial court, whereas the village assigns three errors of law.

The township’s claimed errors are as follows:

1. The court erred in holding that the “special assessment fund” is subject to division.

2. The court erred in holding that the “firemans indemnity fund” is subject to division.

3. The court erred in holding and directing the township to pay to the village certain amounts of money received from liquor permits.

4. The court erred in directing the township to take care of the roads in the village through the year 1949.

5. The court erred in finding that the only factor to consider in making distribution is the relative tax duplicate values.

6. The court erred in excluding evidence offered by the township of services rendered to the village by the township, between October 1, 1948, and March 15, 1949, and the payment of a debt by the township to the Cleveland Electric Illuminating Company for street lights in the village.

7. The court erred in finding that the village was entitled to receive its proportionate share of taxes after October 1, 1948, and up to and including February 1949.

8. The court erred in considering facts not in evidence.

9. The decision is contrary to law, and against the weight of the evidence.

The village’s claimed errors are :

1. The court erred in holding that the funds on hand, arising out of the general levy upon real and personal property, is not subject to division.

2. The court erred in holding the general fund is not subject to division.

3. The court erred in holding the gasoline or liquid fuel tax funds are not subject to division.

This, therefore, is an appeal .on questions of law from the findings and orders of the Probate Court, wherein each the township and the village is aggrieved.

The matter was submitted upon the following agreed statement of facts:

(1) The village of Eastlake was incorporated out of the territory of Willoughby township, the recording of the transcript of proceedings relating thereto being on September 9, 1948.

(2) October 1, 1948, shall be the date as of which the division of funds and assets owned by the township, or in the process of collection, shall be made.

(3) Exhibit “A” sets forth the tax duplicate of the township exclusive of all municipalities except East-lake and the tax valuation of Eastlake.

(4) Exhibit “B” sets forth the funds in the treasury of the township as of October 1, 1948, funds in the process of collection, personal property and real estate.

(5) Exhibit “C” sets forth the delinquent township special assessments; delinquent real estate .taxes, including school, county and township taxes; and the percentage of the real estate taxes due the township.

(6) The township levy of taxes equals 14.9 per cent of the total 1948 tax levy for county, school and township.

(7) Exhibit “D” constitutes an inventory of the township personal property as of October 1, 1948, and the value thereof.

(8) In addition thereto the township owned office furniture having a value of $200.

(9) Exhibit “E” is an agreement whereby certain personal property was transferred and delivered to the village, the property having a value of $10,728.25.

(10) Exhibit “F” sets forth a schedule of accounts and notes payable by the township as of October 1,

1948, and there is no other outstanding debt owing by the township, as of that date.

(11) There is due from the Department of Highways, by the state of Ohio, the sum of $700, from June 1, 1948, to January 1, 1949.- .

(12) The township received, from taxes and other sources, $28,819.54, from October 1, 1948, to January 1, 1949.

(13) The township received from taxes and other sources, from January 1, 1949, to February 28, 1949, $1,242.

(14) The village has received $172 per month from sales tax during 1949.

(15) Notice of the filing of the application of the village, for the division of funds, was duly served according to law.

„ (16) There was due the township upon uncollected accounts, other than the $700 due from the State Highway Department, $36 as of October 1, 1948, and there is due $36, from October 1, 1948, to January 1, 1949.

(17) The township received, during the year 1948, $91,374.35 from all sources.

(18) The board of trustees of the township expended $117,769.39 during the year 1948.

(19) The township has requested and received an advance of $4,300, from the treasurer of Lake county, against taxes in the process of collection; such .advance to be charged against the road fund.

(20) The township has paid the Cleveland Electric Illuminating Company, for street lights located within the corporate limits of the village of Eastlake, $635.10.

The concluding sentence ih Section 3544, General Code, reads: ‘ ‘ The findings and orders of the Probate Court shall be final. ’ ’

May there be an appeal from the judgment of the Probate Court on questions of law?

Section 6, Article 4 of the Ohio Constitution, provides such appellate jurisdiction and answers that inquiry in the affirmative.

As to the township’s assigned errors 1, 2, 3, 5, 6, 1, 8 and 9, we conclude that the trial judge committed no error, and we affirm the conclusions reached.

As to the township’s assigned error 4, “that the court erred in his findings and in directing the township to take care of the roads in the village down through the year of 1949,” the trial court ordered the township to furnish the necessary labor and materials for the purpose of constructing, maintaining, widening, reconstructing, and repairing roads and highways within the village to such an extent as funds are available from moneys received under Section 5542-1, General Code, and, upon the same basis as heretofore furnished by the township, such labor and materials to be furnished for the period from October 1, 1948, to January 1, 1950.

There is no authority in law for the court to make such an order. This is a statutory proceeding, under ■Section 3544, General Code, and the court shall make a proper division of the real and personal property of the township, but may not go beyond the provisions ■of this statute.

Had the township and the village followed and carried out this order in spirit and in truth, it is more than likely that both would have benefited thereby. This case was tried to a painstaking and competent trial judge, and he had only the best interests of the township and village before him in the making of this order.

The village contends that the funds of. the township on hand or in' the process of collection and arising out of the general levy upon real and personal property, the general fund and the gasoline or liquid fuel tax funds are subject to division.

The court held otherwise and apparently based its opinion on the holding in the case of Northfield Township v. Village of Macedonia, 22 C. C. (N. S.), 50, 33 C. D., 445.

The court in that case quoted Section 5, Article XII of the Constitution, and held that this provision of the Constitution “forbids the division of the proceeds of any tax levied for township purpose unless the laws provide for a correlative village purpose, to which a proper part of it may still be applied in the village which has been created from the township, and which helped to produce the fund.”

Section 5, Article XII of the Constitution, provides:

“No tax shall be levied, except in pursuance of law; and every law imposing a tax, shall state, distinctly, the object of the same, to which only, it shall be applied. ’ ’

Considering Sections 5625-3, 5625-4 and 5625-5, General Code, we believe that the funds from the general levy are equally applicable to village purposes as well as to township purposes.

In the case of City of Cleveland v. Zangerle, County Aud., 127 Ohio St., 91, 186 N. E., 805, the court said:

“We are of the opinion that the provisions of Am. Sub. Senate Bill No. 239 are not violative of Article XII, Section 5 of the state Constitution. In other states having similar constitutional provisions, their courts,' with substantial unanimity, have held that such a constitutional provision pertains to the levying and distribution of general taxes for state purposes and not to taxes levied and distributed for local purposes.” As to the matter of the gas tax funds, Section 5541, General Code, sets forth the purpose of the tax as being “also for enabling the several counties, townships and municipal corporations of the state properly to construct, widen, reconstruct and maintain their public highways, roads and streets * * *.”

The purpose was to aid both township and village with respect to their roads and streets.

We believe, therefore, that the court should have ordered a division of (a) funds on hand, or in the process of collection, arising out of the general levy, (b) the general fund and (c) the gasoline or liquid fuel fund, in proportion to the respective duplicates.

With this modification, the judgment of the lower court is hereby affirmed'.

Judgment modified and, as modified, affirmed.

Phillips, P. J., and Nichols, J., concur.


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    Dinsmore v. Alvis, Warden, et al.

      (No. 4340
    Decided June 22, 1950.)

      Mr. Jay G. Flowers, for petitioner.

      Mr. Herbert 8. Duffy, attorney general, and Mr. Alan E. Schwamivalder, for respondents.
   Wiseman, J.

This is a proceeding in habeas corpus, originating in this court, in which the petitioner seeks his release from the Ohio State Penitentiary where he has been confined since September 22, 1948, on a mittimus issued by the Common Pleas Court of Wayne County.

The petitioner was indicted on seven counts for forgery under Section 13083, General Code.

The petitioner claims that eight days elapsed after his arrest before he was taken before a magistrate and a complaint filed. The point is made that there was a failure to comply with the provisions of Section 13432-3, General Code, in that he was not taken before the magistrate "without unnecessary delay.” There is a discrepancy between the sworn testimony of the' petitioner and the records as to the time of the arrest and his appearance before the magistrate. In view of the conflict in the evidence we cannot find in favor of the petitioner on this factual matter. However, if the claim of the petitioner is true, this would not furnish legal grounds for a release by a habeas corpus proceeding.

It is claimed also that two of the counts were for one and the same offense. The first count charged petitioner with' falsely making, forging and .counterfeiting a check; the second count charged him with feloniously uttering and publishing as true and genuine a certain false, forged and counterfeited check. Both counts involved the same check. The acts of making and forging and the uttering and publishing of the forged check constitute the crime of forgery under Section 13083, General Code. However, there are two separate offenses charged. ■ The rule that the accused cannot be convicted of two separate offenses which in fact constitute one act has no application. The making and forging of the check was one act, and the uttering and publishing of the check was a separate and distinct act. Evidence which would be sufficient to convict of making and forging would fall far short of being sufficient to convict of uttering and publishing. The two counts charged two separate offenses. Slate v. Douglas, 114 Ohio St., 190, 150 N. E., 733; Lindsey v. State, 38 Ohio St., 507; 19 Ohio Jurisprudence, 232, 258, Section 23; 23 American Jurisprudence, 698.

Petitioner claims he was indigent and unable to employ counsel and that he was without counsel at all times. Thé record does not show affirmatively that Ibis matter was brought to the attention of the court at the time of arraignment, at which time petitioner pleaded guilty. In the case of In re Burson, 53 Ohio Law Abs., 443, 86 N. E. (2d), 40, this court held: “ ‘Due process’ is not denied in every case where the court fails to appoint -counsel to represent an indigent defendant.” That case was affirmed by the Supreme Court in 152 Ohio St., 375, 89 N. E. (2d), 651. See Betts v. Brady, Warden, 316 U. S., 455, 86 L. Ed., 1595, 62 S. Ct., 1252. In our opinion the record presented does not show a clear case for issuing the writ because of the failure to appoint counsel.

The chief and most serious contention of -petitioner is that there was a denial of ‘ ‘ due process ’ ’ as guaranteed by the Fourteenth Amendment to the United States Constitution' and Section 10, Article I' of the Ohio Constitution, by the failure of the sheriff to serve on the petitioner a copy of the indictment. The Fourteenth Amendment to the United States Constitution provides that no state shall ‘ ‘ deprive any person of life, liberty, or property, without due process of law. ”

Section 10, Article I of the Ohio Constitution, in part provides:

“In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof.”

Section 13439-1, General Code, provides:

“Within three days after the filing of an indictment for felony and in every other case when requested, the clerk shall make and deliver to the sheriff or to the defendant or his counsel, a copy of such indictment. The sheriff, on receiving such copy, shall serve it on the defendant. A defendant, without his assent, shall not be arraigned or called on to answer to an indictment until one day has elapsed after receiving or having an opportunity to receive in person or by counsel, a copy of such indictment.”

The record in -this case shows that the indictment was presented on September 9, 1948. Notice to serve copy of the indictment was filed on September 10,1948. The return of the sheriff shows that a copy of the indictment wag served on one Harry Hunter on September 11, 1948. The record does not show, but the.testimony of the petitioner in this court was to the effect that a copy- of the indictment was never served on him. A warrant for his arrest was issued on September 10, 1948. The record shows that on September 13, 1948, the sheriff brought the petitioner before the court, at which time he was arraigned. When arraigned the indictment was read to the petitioner and, being then and there required to plead, the petitioner entered a plea of guilty to the seven counts. He was immediately sentenced for an indeterminate term on each count, the sentences to run consecutively.

Do these facts show a denial of “due process?” We do not think they do. The accused is entitled to be served with a copy of the indictment but this right may be waived. The record does not show that accused made a demand to be furnished a copy of the indictment and was refused. In our opinion the requiring of the service of a copy of the indictment on the accused was not a necessary legal prerequisite to the acquisition of jurisdiction. The presentment of the indictment gave the court jurisdiction. See Smith v. State, 8 Ohio, 295; Fouts v. State, 8 Ohio St., 98. Any irregularity which may arise thereafter must be raised on appeal. In re Burson, 152 Ohio St., 375, 89 N. E. (2d), 651. The court had jurisdiction to sentence the petitioner and his release is denied.

Petitioner remanded to custody.

Miller, P. J., and Hornbeck, J., concur.