text:
    ADVERSE POSSESSION — FENCES—LIMITATION OF ACTIONS.
    [Lucas (6th) Circuit Court,
    October 30, 1905.]
    Haynes, Parker and Wildman, JJ.
    S. Belden E. Seese v. Maumee (Vil.).
    1. Fences Sufficient to Exclude Public Travel will Create Adverse Possession, even if not Kept in Repair.
    If the public is entirely excluded from the use of a street for a period of twenty-one years, it will make no difference how frail or unsubstantial the barrier may be that caused such exclusion; hence fences sufficient to turn stock, and to prevent travel along a street except by pedestrians, and in their case only by their climbing the barriers, will be sufficient to constitute such adverse possession, even though it appear that the fences were at times greatly decayed and out of repair.
    [For other cases in point, see 1 Cyc. Dig., “Adverse Possession,” §§ 129-188; 4 Cyc. Dig., “Fences,” §§ 92-95; 5 Cyc. Dig., “Highways,” §§ 340-344; 6 Cyc. Dig., “Municipal Corporations,” §§ 2228-2240. — Ed.]
    2. Principle that Limitations does not Run in Favor of a Nuisance not Applicable to Case of Complete Adverse Possession.
    The general principle that the statute of limitations will not bar public authorities from removing a nuisance for the street applies to a case where such authorities maintain their rights therein and one undertakes to obtain an easement by the erection of a nuisance; but this doctrine will not be extended to a case where one, by a fence or other structure, has entirely excluded the public from the street.
    [For other cases in point, see 5 Cyc. Dig., “Limitation of Actions,” §§ 99-103, 155-156. — Ed.]
    3. Provisions of Statute of Limitations may be Resorted to .Affirmatively in Action to Quiet Title.
    While the provisions of the statute of limitations relating to real actions Rev. Stat. 49-77; Lan. 8492), are designed to be used defensively, they-may nevertheless be taken advantage of in an action by plaintiff to quiet title.
    4. Mere Statement that Land Adversely Held “is a Street” will not Prevent the Operation of the Statute of Limitations.
    Statements by a party that certain land in his adverse possession “is a street” are not sufficient to estop him from setting up the statute of limitations in his favor as against the municipality, nor to arrest the running of the same.
    [For Other cases in point, see 5 Cyc. Dig., “Limitation of. Actions,” §§ 579-581. — Ed.]
    Appeal from Lucas common pleas court.
    H. H. Sanderson, for plaintiff.
    L. W. Murphy, for defendant:
    To constitute adverse possession there must have been an intention on the part of the person in possession to claim title, and so maintained by his declarations or his acts. Lane v. Kennedy, 13 Ohio St. 42-46; Ashley v. Toledo, 5 C. D. 675 (13 R. 1).
   PARKER, J.

The plaintiff began his action in the court of common pleas of this county on October 2, 1903. It is in the nature of an action to quiet title to certain tracts or strips of land that were at one time laid out .as streets in the village of Maumee, in this county. From the judgment of the court of common pleas in the case, an appeal has been taken to this court and the case has been tried before us. The plaintiff says in his petition that he is the owner of lots 1, 2, 3, 4, in block No. 9, and lots 1, 2, 3, 4, 5, 6, in block No. 10 and water lots Nos. 6, 7, 8, 9, 10 and 11 of that village; that all of these lots are in Wolcott’s addition to the village of Maumee, Lucas county, Ohio. It appears that the lots mentioned in the blocks named comprise the whole of these 'blocks 9 and 10 and that these blocks lie upon the south side of one of the main streets of the village, called Wolcott street; that this street is sometimes called the river road, sometimes Detroit avenue. It runs ■east and west by these premises, and these lots lie between this street ■and the Maumee river. The water lots lie south of blocks 9 ‘ and 10, being separated therefrom by Water street. Johnson street, a part of which is in dispute here, lies between blocks 9 and 10, block 9 being on the upper or west side and block 10 'being on the lower or east ■side of this street. The dedication of the plat in which these lots are described and in which these streets are dedicated by Mr. Wolcott occurred in 1837. It has been said that this action is brought by the plaintiff under favor of Rev. Stat. 4977 (Lan. 8492), more especially the part of that section which was added by amendment in 1889. But it is contended on behalf of the village that the action is not maintainable under these provisions of the statute, because these streets were at ■one time open and the statute applies only to cases where streets have not been opened.

It is perhaps inaccurate to speak of the case as being brought under the statute at all. The statute does not provide for any actions or any remedy; it is a part of the statute of limitations and it provides primarily for a defense. These provisions added in 1889 applied specifically to streets, and seemed to provide the results of certain actions with respect to streets, that is to say, the effect of fencing up certain streets. While, as I have said, we deem it inaccurate to speak about the action as having been brought under any of the provisions of this section, yet the result of adverse possession for twenty-one years, under certain circumstances, is to give to the possessor a title and the -question we have to consider is whether under any of the provisions of this section, the plaintiff has such title as that he may maintain an action to quiet title, or may resist a claim to the streets made on behalf of the village.

I shall not stop to read the section, but will say that we entertain very serious doubts whether the plaintiff has brought himself within the provisions of this amendment to the statute made in 1889; that is to say, we question very much whether this part of the' statute applies to eases where streets have been opened; and we find in this case that in pursuance of an ordinance for the improvement of these streets, passed May 29, 1843, these streets were opened; we find, the preponderance of the evidence is to. that effect; that is to say, that sufficient was done by, and on behalf of, the village to amount to the opening of the streets, though we do not believe that the streets were improved as provided by that ordinance; but that sufficient authority was exercised over the streets and sufficient use was made by the public to amount to an opening of the streets.

The ordinance provided for the grading of Water street, which runs in an easterly and westerly direction at this point between Wol-cott street and the river, and it appears that at about this point there was some grading done upon what was supposed to be Water street,, some leveling up to make it passable by teams. But we find that whatever was done with respect to the attempt to improve Water street was not done upon what was actually Water street at all; that Water street, in fact, was in such position on the bank of the stream, the side of the bill forming the upper bank, that it could not be traveled over with teams, and that the teaming that was done, according to the testimony of witnesses, must have been done upon these water lots between Water street and the river; and it is very evident to us that there was never any teaming done over Johnson street between Wolcott street and the river. We are entirely satisfied upon that point.

The ordinance in question provided for the improvement of Tap-pan street which was along the east side of block 10 extending from Wolcott street down to Water street, so that it might be traveled by teams; the ordinance provides specifically for that, and it provides for the improvement of Water street to the westward as far as Forrer street; and it seems entirely clear to us from the testimony of witnesses that whatever was done by way of improving the street so that teams might travel from Wolcott street down to Water street, was done upon ' Tappan street. Indeed it appears from the testimony that in early times, there were some docks built in this vicinity, some in the immediate vicinity of these water lots, some further east and that there was considerable traffic here; there was some boat buildings, etc., and occasion, for people to go'-up and down the banks and to do hauling up and! down there. But that all seems to have come to an end about the mid-' die of the last century and the traffic ceased, and the docks and whatever improvements there were in that vicinity were allowed to go into disuse and decay, so that there is very little, if anything, now evidencing such former occupation and use.

Now, notwithstanding the fact that the plaintiff’s case may not come within the provisions of this amendment to this section, because of the streets having been opened up, we think it is entirely clear under the authorities that one may obtain a title to streets, which have been regularly laid out and opened, by adverse possession, to the exclusion of the public for a period of twenty-one years, and the question that we have considered and that we shall pass upon is, whether there has been such use and occupation of the predecessors in title of-Mr. Seese as puts him in the position where he may have his title quieted to the parts of Johnson street and Water street which are in controversy.

In certain of the earlier cases, i. e. Cincinnati v. Presbyterian Church, 8 Ohio 298, 299 [32 Am. Dec. 718]; Williams v. Presbyterian Soc. 1 Ohio St. 478 and Cincinnati v. Evans, 5 Ohio St. 594, the doctrine appears to have been recognized that title to parts of streets might be acquired by adverse possession. It has been said in later eases with respect to these holdings that while the judgments were right, they should have been put upon the ground that the city was estopped from claiming the parts of streets occupied by private structures, and there seems to be good reasons for this contention; and, if in cases like this, the city might be estopped, it is apparent that it would not require a period of adverse possession of twenty-one years in order that the estoppel might be effective; the estoppel might be effective in a very short period of time; the twenty-one years period would have no influence upon that question at all; at least it would not have a controlling effect. These earlier cases are reviewed by our Supreme Court in several late cases: and I call attention especially to the case of Heddleston v. Hendricks, 52 Ohio St. 460 [40 N. E. Rep. 408], where they are reviewed by Chief Justice Minshall, and I cannot do better in discussing these earlier cases' than to read what Chief Justice Minshall has said about them. I read from page 465:

“The general rule is, that the statute of limitations does not apply as a bar to the rights of the public, unless expressly named in the statute; for the reason that the same active vigilance cannot be expected of it, as is known to characterize that of a private person, always jealous of his rights and prompt to repel any invasion of them. But in the cases of Cincinnati v. First Presbyterian Church, 8 Ohio 298, and of Cincinnati v. Evans, 5 Ohio St. 594, a different rule was applied; and, in the first ease, the right of the city to a portion of its public square, occupied by the church, and, in the other case, its right to be a portion of one of its streets, encroached upon by the building of the defendant, a private person, was, in each case, held barred by an adverse possession of twenty-one years. But these cases are regarded as exceptional; and confined to municipal corporations in cases where their possession has been disturbed by the erection of large and valuable •structures under such circumstances as, preclude the idea that the encroachment was simply permissive on the part of the municipality. 'Thus, in Lane v. Kennedy, 13 Ohio St. 42, where a landowner extended his fences so as to include a portion of the highway, not then used nor needed for the public travel, and continued the same for twenty-one years without any objection, it was held that such partial encroachment was not necessarily adverse to the public, nor inconsistent with its easement, and, therefore, constituted no bar to its reclamation by the supervisor, when required by the public travel. The encroachment in this case was upon a highway within the town of Oxford, and which then formed part of one of its street. And Peck, J., in distinguishing the case of Cincinnati v. Evans, observed that, ‘by a reference to the facts therein stated, it might with equal, if not greater propriety, have been placed upon the ground of an estoppel in pais on the part of the city authorities; the building having been located by the city surveyor and upon lines previously established and built upon.’ Again, it is held in McClellan v. Miller, 28 Ohio St. 488, that an encroachment on a highway regularly laid out and established, by putting up a fence or planting a liedge within the established limits, does not constitute such adverse possession as will confer title. After reviewing the' previous cases, Wright, J., said: ‘When roads are laid out and travel is limited, necessity may not require that the whole width should be opened when a less quantity answers every purpose. But the fact that a portion of the highway remains in the possession of adjoining owners, is merely a matter of sufferance, from which rights cannot accrue. If, as in 5 Ohio St. 594, such proprietor should erect permanent- improvements upon the ground in question, indicating an intention permanently to appropriate the land, a question of adverse possession might arise. ’ He then adds: ‘A fence is not such permanent improvement. Nor does the fact that a hedge was planted, vary the ease. The public have a mere easement for the road. The proprietor still owns the fee, and may use it in any way not inconsistent with the purposes' of a road. He may plant trees; he is entitled to the herbage; and the setting out of a hedge entirely comports with his own rights, while it does not conflict with those of the public.’ ”

And there is a further discussion of the matter. Now counsel for the village insist that what is here said about fences, hedges, and the like is clearly applicable to the case at bar, because the only obstruction that was placed across these streets by the owners of these lots was by way of fences across Johnson street on the line of Wolcott street, and by way of a fence at either end of that part of Water street which traverses the southern boundary of blocks 9 and 10.

But a study of this ease and others discloses a marked difference between an encroachment upon a street by a partial occupation thereof by the construction of ordinary structures, (not permanent, as in the Cincinnati case,) and an entire exclusion of the public from the streets; and we think that where the public is entirely excluded from use of the street for a period of twenty-one years, it makes no difference how frail or unsubstantial the barrier may be that excludes the public, that it is not necessary to exclude them by a permanent structure; it is sufficient that the public is excluded. We think that this distinction was lost sight of by Judge Caldwell when he came to decide the case of Wright v. Oberlin, 13-23 O. C. C. 509, and Morehouse v. Burgot, 12 Circ. Dec. 163 (22 R. 174), but that the distinction was recognized in the case of Mott v. Toledo, 7 Circ. Dec. 216 (17 R. 472).

We conclude that the evidence supports the • contention of the plaintiff, that the public has been excluded from the use of these streets by the fence across them at the points I have described for a. period of more than twenty-one years before this action was begun. Mr. Darmstadt became the owner of the premises by a tax title about 1867, and it seemed that he went into the occupation of the premises about that time; his title was perfected by "deed in 1873, but the testimony shows that he built a fence along the line in front of blocks 9 and 10, along the south line of Wolcott street and across Johnson street at that point, as early as 1870, and that about that same time he built a fence from the northeast corner of block 10 down to the' river, thereby crossing Water street, and from the northwest corner of block 9 down, to the river, thereby crossing Water street. The first fence he built appears to have been substantially around block 9, according to the testimony of some of the witnesses, the other fence was built a few months later, according to the testimony of other witnesses, a year or two later.

But we are convinced from the testimony that from about the year 1870 until a year or two before the beginning of this suit, these fences were maintained continuously, though at times they were decayed and ' out of repair, yet they were kept in condition so that they would turn stock at any time and so that the public could not use these streets for traffic, and could not pass upon these streets as foot passengers, otherwise than by passing through the barriers by way of a gate, part of the time, and by way of bars part of the time, erected by Mr. Darmstadt as a part of his fence across Johnson street. Upon the south line of Wol-cott street, upon Water street, there was no way of getting by the ffence other than by climbing over it or under it. The fence would turn stock. This first fence,- which as I have said was built substantially around block 9, does not appear to have conformed to the line of block 9 upon the south, but it went far enough south at the east end to take in about half of Water street; it was then continued in a westerly direction to about the south side of Water street, or within about a foot of that point, where it joined the fence leading from Wolcott street to the river, so that this fence at the west end took in all of Water street but about one foot: Perhaps it left no obstruction, for a while, to that part of Water street which had been used by the public in earlier times, or I should say that part .of the territory which was supposed to be Water street and so used by the public in early times, to wit. the water lot line of travel on the level land.

Upon the proposition that this amendment to Rev. Stat. 4977 (Lan. 8492) probably does not apply to the ease at bar, I meant to state, and will now cite the case of McClelland v. Miller, 28 Ohio St. 488, 489 and Grove v. Graham, 41 Ohio St. 303 and this case of Heddleston v. Hendricks, supra, which come under Rev. Stat. 4668 (Lan. 7960), a section applicable to county roads that have not been opened and similar in its provisions or its general scope and purpose to this amendment to Rev. Stat. 4977 (Lan. 8492). It was held in those cases that the statute applied only to roads that had not been opened at all. But the first clause of Rev. Stat. 4977 (Lan. 8492) applies as well to streets as to cases where the ownership or right is claimed by municipal corporations, as to other territory, where the claim is made by private proprietors. The clause which I refer to is, “An action for the recovery ■of the title or possession of real property, can only be brought within twenty-one years after the cause of such action accrues,” and while, as .1 say, that was intended to be used defensively — provides a defense— it results, when an action is brought like this to quiet title, and claim to the property is made on behalf of another, that it may be used in support of the cause of action of the plaintiff.

It is contended by counsel for the village, as we understand it, that this fence was in the nature of a nuisance prohibited by statute, and that there is no statute of limitations under which one may claim a right to maintain a fence;.that no length of time will bar the public authorities from proceeding to remove the nuisance from streets, and, that being true, it must" result that there is no bar to the right of the city here to claim these streets and to ask for the removal of these fences. We are cited to the case of Little Miami Ry. v. Greene Co. (Comrs.) 31 Ohio St. 338. It appears that that was a case in which the railroad company was permitted to encroach upon a public road under an agreement which contained the condition that the road was to be restored to its former state or in a sufficient .manner not to impair its usefulness, and it was held that under this agreement and arrangement, the public authorities had the right to require the removal of the obstruction; that it did not authorize the company‘permanently to appropriate any portion of the public highway, by the obstruction. Now in the course of the discussion in this ease, reference was made to the law upon the subject of public nuisance. We take it that principle applies in a case where the authorities maintain their rights in a street or to a street and one undertakes to obtain an easement or a right therein by erecting a nuisance, .and not to a case where one, by a fence or other structure, entirely excludes the public from the street; that the public’s right to a street and "the public’s rights in a street are two different things. Where the public claims its thoroughfare, maintains its rights to its thoroughfare, one may not, by transgressing upon the limits of that street by an unauthorized obstruction, defeat the right of the public to have that obstruction removed. There is another case upon this subject, where one claimed an easement in the street by reason of certain pipes erected along and under the surface of the street. These pipes were destroyed by the construction of a sewer. — This is the case of Eister v. Springfield, 49 Ohio St. 82, 92 [30 N. E. Rep. 274], and there this doctrine was enforced. But we understand it to be well settled that where the public is entirely excluded from the use of the street, where the whole street is occupied by one using it adversely,, claiming it adversely to the public, that the public may lose its right in the street and to the street altogether.

It is urged on behalf of the village here that this use of it, even if it has been for a period of twenty-one years, has been permissible, or that the rights of the village had been recognized by the Darmstadts, who fenced up the street and used it, and emphasis is laid upon by the testimony of Mr. Wagner, who says that the elder Darmstadt, through whom this later proprietor claims, in 1889, said to him, pointing to the part of the street‘which was laid out as .Johnson street, “That is a street.” It appears that that was fenced in at the time, and fenced in as part of block 10, and the fact that it was fenced in with block 10 is what called for the question upon the part of Mr. Wagner, that brought this response from Mr. Darmstadt, that it was fenced in and had a gate leading from Wolcott street. Part of this was cultivated and this part which had beep Johnson street was uncultivated. Mr. Wagner inquired of Mr. Darmstadt why this was that he kept it in that rough uncultivated condition and Mr. Darmstadt.said that was a street.

Well, now, what effect is to be given to that? As a matter of fact it was fenced up; the public could not use it for travel at all, excepting foot passengers, and those must use it by the gate or pair bars or climb the fence that had. been constructed there by Mr. Darmstadt. The whole subject of such declarations made by an occupier is very fully discussed in the case of McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. Rep. 715]. I cannot take time now to read much from .this case, but most all of what is said in the opinion of Judge Spear upon the branch of the case which involved declarations of the occupier is applicable to the case at bar. What Mr. Darmstadt said upon this subject at this time was quite proper. In a sense that was a street; it had been regularly laid out and platted as a street; and yet he might have mentioned it as .such street as he was using as a lane for his cattle down toward the river at this point. There is much testimony tending to show that part of the land that was fenced up was much narrower than the street as laid out, that the fences leading toward the river at this point were not more than eight or ten feet apart; and this must have been so part of the time that it has stood.there; at other times they were as much as fifty feet apart, yet the street itself was sixty feet wide. But these declarations did not amount to an acknowledgment upon the part of Mr. Darmstadt that he did not hold it adversely; it did not amount to ' an acknowledgment upon the part of Mr. Darmstadt that the public had a superior right to that than he; and Mr. Darmstadt may not have appreciated at that time the fact that he had occupied it so long that he might successfully deny the right of the public to any use of the street.

Now I will read the first clause of the syllabus in this case of McAllister v. Hartzell, supra:

“Where the statute of limitations is interposed in an action of ejectment, and it is shown that the original seizure was a disseizin, any subsequent act or declaration of the claimant, or his predecessor in title, which does not estop the claimant to plead the statute, nor suspend the right of the holder of the title to prosecute an action to recover possession, will not be sufficient‘to arrest the running of the statute. Neither a mere offer to buy within the twenty-one years, nor an acknowledgment by the claimant within that time that the title is in another, or that the claimant does not own the lands, will have that effect. ’ ’

Mr. Darmstadt did not say so much as is covered by this decision; he did not offer to buy; he was not talking to any representative of the village; he did not acknowledge the ownership, of the village; he did not say that he did not own it himself. As I say, this matter is discussed very fully by Judge Spear in this ease, and I will read part of the opinion found on page 93.

But first I will refer to the case, of Drayton v. Marshall, 1 Rice Eq. (S. C.) 373 [33 Am. Dec. 84], and will read what the holding in that ease was, from page 386:

“It is believed that no case can be put, in which a man knows that another claims and is in enjoyment of what belongs to him, where there is nothing to prevent his doing so, that he will be barred by the statute.”

Now speaking of this case, Judge Spear says, on page 93:

“We are of the opinion that the principle announced in Drayton v. Marshall, supra, is a just one, that it is applicable to the facts of this ease, and that the rule should be, that where it is shown that the original seizure was a disseizin, no subsequent act or declaration of the claimant should be held to toll the statute which does not deprive the holder of the title of his right to prosecute his action to recover possession, or suspend the same. This is a simple, easily understood test, and we believe is not only within the letter, but clearly within the spirit,- of the statute. Applying this rule' to the case at bar, it is clear that neither the mere offer to buy, nor the acknowledgment of the claimant that the title was in another, or that he did not own the land, is sufficient to suspend the running of the statute. Such acts and declarations raise no conclusive implication that the claimant intends to attorn to the ■holder of the title, or yield the possession.”

Here we find that the public was excluded; we find that this is an act which, in the absence of any evidence of permission given by the public, is unequivocal; it speaks louder than words; that it disclosed a purpose to use this to the exclusion of the public. If the public submits to such exclusion for a period of twenty-one years, we hold that it may not thereafter assert successfully a claim to the street. Upon the whole, we conclude that the decree should be for the plaintiff, quieting his title.

Haynes and Wildman, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ERROR — BILL OF EXCEPTIONS.
    [Van Wert (3rd) Circuit Court,
    November Term, 1904.]
    Day and Norris, ,TJ.
    York-Ridge Oil Co. v. W. O. Innis et al.
    Filing Agreed Statement of Facts in Trial Court does not Make it Part of Record.
    An agreed statement of facts in a case does not become a part of the record in the case merely by being filed in the trial court; nor does a reference to an agreed statement of facts in the bill of exceptions as having been offered in evidence, and declaring it a part of the record and that it bears the file marks of the trial court with the date of filing, become a part of the record without further identification or being attached to the bill of exceptions.
    [For other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” §§ 128-135; 4 Cyc. Dig., “Error,” §§ 1227-1235. — Ed.]
    ERROR to Van Wert common pleas court.
    E. G. Guthery, H. G. Richie and C. O. Richie, for plaintiff in error.
    O. S. Brumback and Saltzgaber, Hoke & Osborn, for defendants in error: '
    An agreed statement of facts' although filed in a ease, is not an “original” paper. Garner v. White, 23 Ohio St. 192; Young v. State, 23 Ohio St. 577; Montgomery v. State, 4 Circ. Dec. 199 (12 R. 679) ; Brock v. State, 12 Circ. Dec. 467 (22 R. 364); Clev. & IE. Elec. By. v. Hunter, 12 Circ. Dec. 769, 774; State v. Speigel, 25 O. C. C. 552.
    Nor -even when copied in the record by the clerk. Sleet v. Williams, 21 Ohio St. 82; Goldsmith v. State, 30 Ohio St. 208; Schultz v. State, 32 Ohio St. 276.

      A deposition on file, but not attached to tbe bill of exceptions, is not a part of the record. Hicks v. Person, 19 Ohio 426.
    An agreed statement of facts must be made a part of the record by bill of exceptions. Bank of Virginia V. Bank, 16 Ohio 170; Clark v. Lane Seminary (Tr.), 6 Dec. Re. 863 (8 Am. L. Rec. 488).
   PER CURIAM.

The document which purports to contain and to be an agreed statement of facts in the case, does not become part of the record by being filed in the trial court. The reference to it in the bill of exceptions, as having been offered in evidence, and declaring that it is a part of the record, and that it bears the file marks of the common pleas court with the date of the filing, without further identification and without being physically attached to the bill of exceptions, does not make it a part of the bill, or a part of the record. The bill of ■exceptions showing that such 'agreed statement of facts was received in evidence, and the same not being a part of the record, and not being made a part of the bill of exceptions, it conclusively appears that the bill of exceptions does not contain all the evidence, and this court is precluded from reviewing the case upon the weight of. the evidence.

The assignments of error in the petition in error are all dependent upon the facts as found from consideration of the evidence. This being the situation, this court is without power to review, and so must of necessity affirm the judgment.

The judgment is affirmed at the cost of plaintiff in error without penalty. Judgment for costs, execution awarded and case remanded for execution.


author: SWING, J.

text:
    NEGLIGENCE — WRONGFUL DEATH — CHARGE TO JURY.
    [Hamilton (1st) Circuit Court,
    January 18, 1906.]
    Jellte, Swing and Giffen, JJ.
    Cincinnati Trac. Co. v. John Simon, Admr.
    INACCURATE CHARGE TO JURY ERRONEOUS.
    In an action for damages by an administrator of a child killed by a street railway company against such company, for wrongfully causing the death of a child, an instruction without qualification that “if you find from all the evidence that the motorman who had charge of the car which struck the plaintiff, could, by the exercise of ordinary care, have seen the plaintiff and stopped the car, and that by reason of the failure to stop the car, plaintiff was knocked down and injured, it would be such negligence on the part of the defendant as would enable the plaintiff to recover,” is erroneous as the term “plaintiff” was used when the plaintiff was not intended, and it is too broad and inaccurate.
    [For other cases in point, see 7 Cyc. Dig., “Street Railways,” §§ 599-613. — Ed.]
    Nbror to Hamilton common pleas court.
    G. H. Warrington, for plaintiff in error.
    Theo. Horstman and G. H. Kattenhorn, for defendant in error.
   SWING, J.

This was an action in the court of common pleas for damages for the death of Isadore Simon, a child four and a hflf years, who was run over and killed by one of plaintiff in error’s cars. A verdict and judgment was rendered in said court in favor of the plaintiff for the sum of $2,000.

Numerous errors were assigned in this court for the reversal of said judgment. It is urged that the court erred in its charge to the jury-The charge of the court contained this instruction:

“The court says to you if you find from all the evidence that the motorman who had charge of the car which struck the plaintiff could, by the exercise of ordinary care, have seen the plaintiff and stopped the car, and that by reason of the failure to stop the car plaintiff was knocked down and injured, it would be such negligence on the part of the defendant as would enable the plaintiff to recover.”

This portion of the charge is certainly inaccurate and misleading on a very vital question in the case. In the first place, the court says that if “the motorman could have seen plaintiff, * * * and that by reason of the failure to stop the car, plaintiff was knocked down and injured.” The plaintiff in this action, Jacob Simon, administrator, was not knocked down and injured, but the child, Isadore Simon, was knocked down and injured, and it is on account of his death that Jacob Simon, administrator, prosecutes tbe action. It is probable that the court did not mean the plaintiff, Jacob Simon, but did mean Isadore Simon, the child, and it may be, that the jury understood that when the court used the word, plaintiff, it did not mean the plaintiff in this action, but •did mean Isadore Simon, the child, who was injured, and probably these misstatements, standing alone, should not be considered by a reviewing court as necessarily prejudicial, although erroneous. But it seems to us that there is prejudicial error in this portion of the charge, where the court says:

“That the motorman who had charge of the car which struck the plaintiff, could, by the exercise of ordinary care, have seen the plaintiff, and stopped the car, and that by reason of the failure to stop the car, plaintiff was knocked down and injured, it would be such negligence on the part of the defendant as would enable the plaintiff to recover.”

When did it become the duty of the motorman to see the child, or if having seen it, when did it become his duty to stop his car? On these important matters the court does not instruct the jury, but does say without any qualifications, that if the motorman could have seen the “plaintiff” and stopped the car.

There was absolutely nothing, as far as the evidence shows, to prevent the motorman from seeing the boy while he was standing on the .sidewalk, and there was nothing to prevent the motorman from stopping his car before ever the boy left the sidewalk. This statement is too broad; it is not accurate, and is calculated to be misleading. It may be, that the court did not intend that it be taken in that sense, but it might very well be. It is not the duty of the motorman to stop his car «o as to avoid injury to persons who may come in contact with it unless as á man of ordinary prudence has reason to, or should have reason to believe that his failure to stop the car would cause injury.

In this case, it was not the duty of the motorman to stop his ear, unless as a man of ordinary care and prudence he had reason to, or should have had reason to apprehend that his failure to do so would cause injury to the child. Necessarily no duty rested on the motorman us to this child until it indicated by its movements that it was about to cross the track; but the court says if the motorman could have seen the “plaintiff” and stopped.the car, and that by the failure to stop the car the “plaintiff” was injured, it was negligence. It is evident, we think, that this is not the negligence for which a recovery can be had, and standing without any qualification, was erroneous, and for this reason the judgment is reversed and cause reminded for a new trial.

Jelke and Giffen, JJ., concur.


author: HULL, J.

text:
    BUILDING PERMIT — DEFECTIVE AFFIDAVIT — VALIDITY OF . ORDINANCE.
    [Lucas (6th) Circuit Court,
    March 4, 1905.]
    Hull, Haynes and Parker, JJ.
    Toledo (City) v. George J. Kiebler.
    1. Consideration of Constitutionality of Statute by Couets.
    The constitutionality of a statute or the validity of an ordinance will not be determined by the court if the case in which such question is raised can be* disposed of on any other grounds.
    [For other cases in point, see 2 Cyc. Dig., “Constitutional Law,” §§ 25-28. — Ed.]
    2. Defective Affidavit Charging Failure of a Grant to Secure Building Permit.
    An affidavit charging an agent with having built a building for his principal without first having secured a building permit as required by ordinance which requires that the owner or agent secure such permit before building, but does not charge that the owner did not secure such permit is too defective and insufficient upon which to base a conviction for such, alleged violation.
    [For other cases in point, see 1 Cyc. Dig., “Affidavits,” §§ 90-131. — Ed.]
    Error to Lucas common pleas court.
    W. G. Denman, C. K. Friedman and C. W. Meek, for plaintiff in error.
    Chittenden & Chittenden, for defendant in error.
   HULL, J.

The* defendant in error — who was also defendant below — was prosecuted in the police court of this city for violating a section of the building ordinances of the city of Toledo.

By an ordinance of the council of this city, a building department was established and provisions were made for a building inspector and provisions with regard to the obtaining of permits for the erection of' buildings of any kind, and a penalty imposed of fine and imprisonment for violation of this ordinance. The permit requires a fee, from a minimum of $2 up to $1,000, being at the rate of $2 a thousand and not to exceed $1,000. It was charged in the affidavit that Kiebler, being the agent and contractor, of one Maude Mitchell — who was the owner— erected a building in this city without said Kiebler’s obtaining a permit therefor, as required by the ordinance. Walter C. Hudson was at the timé the inspector and made the affidavit. A demurrer was filed to the affidavit, which was sustained, and defendant was discharged by the police court. The case was taken to the court of common pleas on error and the judgment of the police court was affirmed. Error was then prosecuted to this court.

It is claimed by the defendant in error that, for various reasons; the action of the police court was correct. It is claimed that the legislation on this subject was invalid and unconstitutional. It is claimed further, that Hudson was never properly appointed or selected as building inspector, and this seems to have been the ground on which the police-court sustained the demurrer to the affidavit. Other grounds were urged, as I have said, and the court of common pleas found the affidavit invalid, on various grounds. It is claimed that the city has no power, under the statutes of the state, to pass such an ordinance; that while it has the power to regulate the erection of buildings, it has no power to impose a fee, and to require the owners to pay a fee for the securing of a permit to erect buildings upon their own property. And it is claimed further that the provision requiring the payment of a fee for such purpose is unconstitutional and in conflict with the bill of rights, as interfering with the right of private property.

The case as argued presents many interesting questions. In the view that we take of it, however, it is not necessary or proper 'for us to consider these questions as to the validity or constitutionality of this ordinance relating to buildings. We have reached the conclusion that the affidavit is fatally defective, regardless of the ordinance; although the ordinance may be valid in every respect and the officer properly appointed, in our judgment the affidavit does not charge an offense, and it not being necessary to do so, it would not be proper for us to undertake to determine the validity of the ordinance. It is a well-established and ' universal rule of courts that the constitutionality of a statute or the validity of an ordinance will not be passed upon by the court unless it is necessary — until a case is brought before the court that makes it necessary to pass upon such questions.

The affidavit charges that Maude Mitchell was the owner of this property; that “the defendant being then and there a contractor for and agent of one Maude Mitchell did unlawfully proceed with the erection of a certain building located on Parkwood avenue in the city of Toledo, Lucas county, Ohio, of which building the said Maude Mitchell was then and there the owner, without the said George Kiebler’s having first obtained from the inspector of buildings of said city of Toledo, Ohio, a permit for such erection, ’ ’ etc. The affidavit charges that Maude Mitchell was the owner of the building and that Kiebler was the agent and contractor for her; that he proceeded to the erection of said building “without the said George Kiebler’s having first obtained from the inspector of buildings a permit.”

Section 1 of the ordinance requires either the' owner or the agent to procure a permit to erect a building.

“A permit for such erection or alteration or the undermining of any such sidewalk shall be first obtained from the inspector of buildings by the owner or his agent, and it shall be unlawful to proceed with the erection or alteration of any building, or part of any building, or any such platform, staging or flooring, or the undermining of any sidewalk in the city of Toledo, unless such permit shall first have been obtained from the inspector of buildings. ’ ’

So as appears from the ordinance the permit may be obtained either by the agent or by the owner. In most cases, it probably would be obtained by the owner, and if the owner has obtained a permit, of course it is not necessary for the agent or contractor to do so — only one is required, and to charge this offense against Kiebler as agent and contractor, the negative allegation should be made in the affidavit that no permit had been obtained by the owner. For aught that appears in the affidavit here, the owner may have obtained a permit and Kiebler may have had it in his pocket at the time he began the erection of, and while erecting, this building. It is very clear to us that this affidavit does not charge an offense under this ordinance. It does not charge a violation of the ordinance for the reasons stated, and it'would be improper for us to consider these other questions when no offense whatever has been charged under the ordinance as it stands. The only question for us to determine is, whether the action of the police court was correct in discharging Kiebler and whether the judgment of the court ’ of common pleas sustaining the demurrer should .be affirmed.

It is clear that the judgments of the lower courts were correct and they should be and are affirmed.

Haynes and Parker, JJ., concur.


author: HULL, JL

text:
    EXEMPTIONS — JUDGMENTS AND DECREES — LIENS.
    [Lucas (6th) Circuit Court,
    February 19, 1905.]
    Hull, Haynes and Parker, JJ.
    ANTON WARNS V. JENNIE REECK.

      ¡L Peioeitt or Purchaser over Foreign Execution Creditor. '
    A foreign execution having been docketed in the county, after contract of sale of land of judgment debtor but before execution of the deed, the purchaser is entitled, to priority over the judgment to the extent of the amount paid by him when the contract was made, and a note held by him against the judgment debtor who was insolvent can be set off against the claim of the judgment creditor who can only claim a lien upon the interest of the judgment debtor in the land at the time the execution was docketed.
    [For other cases in point, see 5 Cyc. Dig., ‘.‘Judgments and Decrees,” §§ 721, 760-764. — Ed.)
    2. Right of Judgment Debtor to Homestead and Liability for Costs.
    An insolvent owner of land having sold the land on contract before, but not executed the deed until after, a foreign execution had been docketed in the county in which the land was situated, such insolvent is entitled to $500 in lieu -of homestead if there be that much not taken to satisfy liens prior to that of the foreign execution creditor; and the costs made in an action to marshal liens are to he paid by the insolvent debtor up to the time he demanded his exemption; after that by the judgment creditor, while the purchaser of the land being willing to pay the purchase money at any time cannot be required to pay any of the costs.
    F. E. Rheinfrank, for plaintiff.
    F. C. Schaal and B, F. Brough, for defendant:
    The principal upon which relief is afforded to purchaser, when the legal title remains in the vendor, and the land is consequently at. law, ■subject to execution upon judgments against the vendor, seems to be, that the purchaser has as good an equity as the judgment creditor and prior to his in point of time, having honestly paid his money before the land became subject to the judgment lien. Lefferson v. Dallas, 20 Ohio St. 68; Simpson v. Niles, Smith (Ind.) 104; Fasholt v. Reed, 16 Serg. & R. 266; Minns v. Morse, 15 Ohio 568 [45 Am. Dee. 590] ; Zeller v. Lading, 43 Ohio St. 157 [1 N. E. Rep. 523]; Sternberger v. Hanna, 42 Ohio St. 305; Jaeger v. Hardy, 48 Ohio St. 335 [27 N. E. Rep. 863] ; Wright v. Banlt, 59 Ohio St. 80 [51 N. E. Rep. 876]; Miller v. Albright, 60 Ohio St. 48 [53 N. E. Rep. 490]; Ranney v. Hardy, 4 Dec. Re. 130 (2 Clev. L. Rep. 131).
    Construction of Rev. Stat. 5441 (Lan. 8970). Chilcote v. Conley, 36 Ohio St. 545.
   HULL, JL

This action was brought by the plaintiff to sell a certain piece of real estate in the city of Toledo, upon a judgment which he had recovered on a promissory note. The plaintiff asks to have the property sold, the liens marshalled and this claim paid out of the proceeds of the sale. The judgment was recovered against "William Leek, who was the owner of this property and in whom the legal title was at the time the judgment was recovered. The controversy arose out of the fact that before the judgment was recovered, Leek, the then owner of the property, by a valid contract, had sold it to the defendant, Jennie Reeck, through her husband, who was acting for her, but the deed for the property was not executed until two or three days after the judgment was recovered and execution levied in this county.

The facts, briefly, are these: William Leek was the owner of this property; he was indebted to Warns on a cognovit note in the sum of about $400. On September 1, 1903, Leek made a contract with Herman Reeck to sell him this property for $1,650. On September 3, Warns went to Cleveland and took judgment on his cognovit note against Leek for $406.35, and had that entered upon the foreign execution docket of this county on the same day, and probably on the next day, September 4, Warns, through his attorney, gave a written notice to Reeck that he had recovered this judgment and that it had been entered upon the foreign execution docket of this county, it not having been indexed by the sheriff. On September 5, the next day after this written notice had been given to Reeck, he, Herman Reeck, who was doing all the business, took a deed to the property in the name of his wife, Jennie Reeck. Herman Reeck and Leek met in a notary’s office and the deed of the property was made by Leek to Jennie Reeck; and soon after that this action was commenced by the plaintiff to sell this property upon his judgment and Leek was made a party. These facts are substantially admitted; there may be some little difference, but it is not material.. Leek, who was made a party, set up a claim for $500 in lieu of a homestead out of the proceeds of this property; and the question is as to the rights of these parties under these facts.

It is claimed that Leek has no right to the exemption; and it is also claimed that in any event this judgment lien of the plaintiff is superior to any right of homestead under these circumstances.

As we understand the law as laid down, especially in Lefferson v. Dallas, 20 Ohio St. 68, and Minns v. Morse, 15 Ohio 568, 569 [45 Am. Dec. 590], Reeck, who purchased the property, is entitled to protection to the amount that was paid down when this contract was made; the judgment not having been recovered until after the contract had been. made, the parties had the right to go on and execute the conveyance, although they knew that the judgment had been recovered and execution had been levied. It was held by the Supreme Court that the purchaser is entitled to protection for the amount he has paid down, and that a contract having been made between the parties, which could be enforced by action in specific performance, they may go on after the judgment has been recovered and execute the conveyance, as these parties did here.

A question of fact arises between the parties as to the amount that was paid down. It is admitted that $50 was paid down on the day that the contract was made, the first of September. Reeek held a note against Leek for $100, and it is claimed that this $100 note was also turned over to Leek on the day the contract was made, or that it was agreed that it should be turned over, and that the note has either been lost or destroyed; and it is claimed that Reeek is entitled to protection to the ■amount of the $100 note also; so that he should be found to have paid down $150 instead of $50. The original contract was drawn up by a notary by the name of Kranz; he testifies that he saw nothing of the note at the time the contract was made; and we are satisfied from the evidence that the note was not produced at that time, and was not delivered or turned over by Reeek to Leek on September 1, the day the contract was made, and not until the fifth; but that it was contemplated between the parties that this note should be a part of the purchase money —that it should be turned over by Reeek as part of the purchase money; of this we are perfectly satisfied, and it is almost inconceivable that it should be otherwise. Leek was insolvent; there was on this property a large number of liens which Reeek assumed as part of the contract, running up to over $1,200. The purchase price was only $1,650, and it was apparent that Leek was insolvent; and we think there is no question but at the time this contract was made, it was understood that this note should go in as part of the purchase money. But we think from the evidence that it was not actually turned over to Leek or destroyed until September 5, the day the conveyance was made.

It is claimed by counsel for plaintiff that if this is true, that it cannot be considered in this transaction in favor of Reeek. But we are of the opinion that Reeek had a fight to set this note off; would have the right to set it up and set it off against Leek’s claim for the purchase money. The judgment creditor can get no greater right here than Leek had as to this purchase money. His only right is to step into Leek’s shoes and insist that the money that was coming to Leek should be applied toward his claim. Reeek’s claim against Leek on this promissory note was a debt upon a contract which he would have the right under the statute, Rev. Stat. 5071 (Lan. 8586) to set off against Leek’s claim for the balance due on this purchase money; and that being true, we think that it should be considered in any event as a part of the down payment, and should be deducted from the amount of the purchase price, to wit, $1,650, and that would cut the amount down to $1,500 still due upon this contract.

Warns’ claim here is only for the balance of the purchase money still due; he has no lien upon the land, except to secure that — that is, that portion of the balance of the purchase money that can be appropriated to the payment of his judgment. These other lines, as I say, are ahead of his and amount to something over $1,200.

The question as to whether Leek was entitled to a homestead out of this or not, under the circumstances, was considered by this court upon a demurrer. The demurrer was overruled, the court holding, under these circumstances, Leek was entitled to claim $500 in lieu of a homestead, and we still adhere to that opinion. He has done nothing, so far as we can see, that deprives him of his right to a homestead exemption; he has sold his property, his homestead; this was his homestead, and he has no property except what was coming to him out of this purchase money. Homestead acts are construed very "liberally, and it seems to us that he comes very clearly within the provisions of the homestead and exemption statutes of this state; that he is within Rev. Stat. 5411 (Lan. 8970), under which he has a right to property, real or personal, to the amount of $500, in lieu of a homestead. All Leek has in the world is this balance due on this purchase price, this credit or choses in action. That statute, Rev. Stat. 5441 (Lan. 8970), the Supreme Court has held, is to be construed to cover money or credits which are held to be personal property. The court say, in Chilcote v. Conley, 36 Ohio St. 545, after stating the facts briefly:

“ ‘Personal property,’ construed in connection with other statutes in pari materia, includes credits and moneys selected by the debtor. Credits and moneys selected by the debtor cannot be taken and held under an order of attachment or by garnishee process.”

And in the opinion which was delivered by Judge Mcllvaine, on page 548:

“This provision should be liberally construed and with the purpose of placing all debtors of the class upon a footing of equality. Hence, personal property, as in Sec. 37 of the justices act, should be held to include ‘money;’ and the phrase, ‘exempt from execution or sale’ should be construed to mean, in the language of Sec. 30 of said act, ‘ exempt by law from being applied to the payment of the plaintiff’s claim.’ ”

This proceeding here is in the nature of an attachment or garnishment of this money. The judgment creditor has lost his right to the land, except to have a lien upon it to secure the balance of the purchase money — the balance of this purchase money which is coming to Leek;, and Leek would be entitled to $500 of the money, if there was that much remaining after payment of liens, as an exemption in lieu of a homestead. It is impossible for us to see why he is not entitled to this exemption under the statute.

The decree, therefore, must be against the plaintiff; there is nothing-in this property or in the purchase money still due to be applied upon his claim. There were several attempts made to settle this matter between: the parties, but there was never anything done that amounted to a formal tender between Reeck and Leek, and that is not material here.

We find, therefore, that the balance of the purchase money should be paid into court by Reeck, to be applied to the payment of these liens in their priority down to Leek’s claim for homestead, and then what is left, which will be less than $500, should be turned over to Leek in lieu of his homestead, which will leave nothing for the plaintiff.

As to the costs, they will be adjudged against Leek until the time that he made him demand for a homestead, and those accruing since then will be charged against the plaintiff, as the issues have all been decided against him, including the homestead matter. Although Leek gets a portion of this money, judgment for costs cannot be enforced against him out of his homestead exemption, as we look at it,- but he ought to pay what has been assessed against him. The petition of the plaintiff will be dismissed.

Mr. Schaal. We had some trouble with the costs in the court below; I want to understand now whether Mr. Reeck has to take care of the payment of any of these costs, or whether they are to be paid out of the money coming from Leek‘I

The Court. We are of the opinion that Reeck ought not to pay any costs. He has been ready at all times, the testimony shows, to pay'into court the balance of the purchase money and let it be applied as the court might direct, and is still ready and willing, and now offers to pay the balance of it.

Haynes and Parker, JJ., concur.


author: GIFFEN, J.

text:
    COVENANTS — DAMAGES—LANDLORD AND TENANT — TAXA= TION.
    [Hamilton (1st) Circuit Court,
    July 28, 1906.]
    Jelke, Swing and Giffen, JJ.
    Patrick J. McHugh v. Catherine Regan, Admx.
    1. Rights op Sublessee to Quiet Enjoyment and Privilege op Purchase.
    A sublessee, with a privilege of purchase, who loses this privilege and is compelled to attorn to the owner, because of the failure of the lessee to renew the lease or exercise his own privilege of purchase, suffers a breach of the covenant for quiet enjoyment and is entitled to any damages he may have sustained by reason of eviction from his privilege, and such damages may be recovered on cross petition in an action by the sub-lessor to recover taxes not paid by such sublessee.
    [For other cases in point, see 3 Cyc. Dig., “Covenants,” §§ 209-213. — Ed.]
    2. Waiver op Forfeiture op Lease por Nonpayment op Taxes.
    The forfeiture of a lease for nonpayment of taxes on the leased premises by the lessee may be and is impliedly waived by the lessor by accepting and demanding the regular rent after such failure to pay taxes.
    [For other cases in point, see 5 Cyc. Dig., “Landlord and Tenant,” §§ 566-567; 7 Cyc. Dig., “Taxation,” §§ 804-812. — Ed.]
    Error to Hamilton common pleas court.
    C. J. Hunt and O. W. Bennett, for plaintiff in error:
    Nonpayment of taxes without formal demand by the lessor therefor does not work a forfeiture of the lessee’s rights. Fichenlaub v. Neil, 6 Cire. Dec. 567 (10 R. 427-432).
    The assertion by Whetstone of his paramount title at the termination of Regan’s lease constituted an eviction of McHugh. 2 Am. & Eng. Enc. Law (2 ed.) 457; 8 Am. & Eng. Enc. Law (2 ed.) 108; 11 Am. & Eng. Law (2 ed.) 482; 16 Cyc. Law 820; Cowdrey v. Coit, 44 N. Y. 382 [4 Am. Rep. 690]; Holbrook v. Young, 108 Mass. 83; Lane v. Fury, 31 Ohio St. 574-578.
    Liability of McHugh for rent, etc.,- was suspended during eviction. Wood, Landl. & Ten. (2 ed.) 1096; 18 Am. & Eng. Enc. Law (2 ed.) 296; Adams v. Bigelow, 128 Mass. 365.
    Right of re-entry of Regan also suspended. Wood, Landlord & Tenant (2 ed.) 1096.
    Recognition by McHugh of Whetstone’s title not an attornment. Corish v. Scar ell, 8 Barn. & Cr. 471, 476. 11 Am. & Eng. Enc. Law (2 ed.) 485.
    Regan estate being unable to perform covenant to convey, no demand by McHugh was necessary before bringing suit. McArthur v. Ladd,.'ó Ohio 514; Lovelock v. Franklin, 8 Q. B. R. 371.

      No tender by McHugh of purchase price necessary where Regan •estate was unable to perform. Williamson v. Moore, 13 Dec. Re. 19 (2 Dis. 30); North Western, I. & M. Go. v. Kirsch, 94 Ill. App. 579; Lowe v. Harwood, 139 Mass. 133 [29 N. E. Rep. 538].
    F. M. Coppock, for defendant in error.
   GIFFEN, J.

The facts in this case, briefly stated, are as follows:

John L. Whetstone, the owner of certain real estate, leased the same to John Regan, now deceased, for a period of five years, from May 1, 1896, with the privilege of purchase during said period for $4,000. John .Regan leased said property to P. J. McHugh for a period of ten years from May 1, 1897, with the privilege of purchase at any time during the continuance of the lease for the sum of $6,000.

John Regan failed to exercise his privilege of purchase during the term of his lease and failed to renew it at its expiration, and'was therefore unable to carry out his agreement with McHugh. McHugh continued to pay rent to the plaintiff below, as administratrix of John Regan, deceased, until about November, 1901, several months after the lease from Whetstone to Regan had expired. About August 13, 1901, McHugh received notice from Mr. Whetstone’s agent that Regan’s lease had expired, and that he, McHugh, continued in the premises only with Whetstone’s consent. And on November 1, 1901, he received a second notice from Whetstone’s agent that all moneys for rental of the property must be paid to him, beginning on that date.

Mrs. Regan, the plaintiff below, demanded rent of McHugh on November 1, 1901, when he told her of the notice from Whetstone, and ■that thereafter he would pay rent to him, which he did at the rate of $35 per month. The rental under the lease from Regan to McHugh was at the rate of $25 per month, and the payment of all taxes upon the premises. McHugh failed to pay the taxes for the years 1899 and 1900, for the recovery of which this action was commenced.

McHugh, by way of cross petition, claims damages in the sum of $1,500 by reason of the loss of his privilege to purchase the premises for the sum of $6,000.

The ease was tried before a jury, and at the conclusion of the evidence, the court, upon motion of the plaintiff; dismissed the cross petition and instructed the jury to return a verdict for the amount claimed in the petition, which is the error complained of.

It is plain that Regan could not perform the covenants of his lease, which was in the ordinary form, unless he exercised his right to purchase the premises prior to May 1, 1901, which he failed to do. The only alternative left to McHugh, after that day, was to pay the rent to Whetstone upon his terms, or vacate the premises. This, of itself, was an eviction, and entitled McHugh to set off against the claim of the plaintiff' for unpaid taxes any damages he sustained by reason of such eviction and the consequent loss of the right to purchase the premises at $6,000. In. 11 Am. & Eng. Enc. of Law (2 ed.) 482, the law is stated as follows:

“It is not necessary that the tenant be actually and physically removed from, or should leave, the demised premises, for, in the absence of fraud or collusion on his part, he is evicted where he attorns to the holder of the paramount title and tabes a new lease from him under pressure of a possessory writ or threats of expulsion. ’ ’

In the case of Holbrook v. Young, 108 Mass. 83, the first proposition-of the syllabus is as follows:

1“A let a shop to B as tenant at will, who underlet it by a written lease to C. A demanded the rent from C, and said that unless he paid the rent to him and took a lease from him, he must leave. C paid the-rent to A and took the new lease: Held, in an action by B against C for-rent, that there had been,a breach of the covenant for quiet enjoyment in the lease from B to C, for which C could recoup.”

Substantially the same principle is announced in the case of Lane v. Fury, 31 Ohio St. 574. It is very clear, therefore, that McHugh, through no fault of his, was compelled to pay the rent to the real owner of the premises or quit the same. It is suggested, however, that prior to the expiration of the lease from Whetstone to Regan, that McHugh had failed to pay the taxes for which this suit is brought, and that thereby he had forfeited his lease.

There is no doubt that, under the terms of the lease, the same might have been foreclosed for such nonpayment, had the lessor so elected. Neither Regan nor his administratrix ever insisted upon a forfeiture, but, on the contrary, demanded and received the monthly rent from Mc-Hugh until about November 1, 1901, when he commenced paying rent to the owner, Whetstone. Every circumstance surrounding the transaction indicates that the forfeiture of the estate for nonpayment of taxes was waived. Chaffee v. Foster, 52 Ohio St. 358 [39 N. E. Rep. 947].

We are of opinion, therefore, that the defendant was entitled to 'have the issue raised by the cross petition submitted to the jury, and that the court erred in sustaining the motion of the plaintiff. Judgment reversed, and cause remanded for a new trial.

Jelke and Swing, JJ., concur.


author: DUSTIN, J.

text:
    OFFICE AND OFFICERS — QUO WARRANTO.
    [Franklin (2nd) Circuit Court,
    September Term, 1906.]
    Wilson, Sullivan and Dustin, JJ.
    State ex rel. Mark Slater v. John W. Johnson.
    1. Quo Warranto on Relation of a De Facto Officer.
    Quo warranto on relation of an individual will lie where the relator claims-to be entitled to the office in controversy, but the relator must show a prima -facie right to the office claimed, and such right cannot be based on the fact that he is the de facto officer; in such a case the usurper of a state office can be ousted only in an action brought by .the attorney-general.
    [For other cases in point, see 7 Cyc. Dig.,- “Quo Warranto,” §§ 162-166. — Ed.]
    2. Right to Appointive Office on Failure of Senate to Confirm Appointment.
    A person appointed to the office of supervisor of public printing by the-governor, which appointment was not confirmed at the next session of the senate, becomes a de facto officer after the failure of the senate to confirm, and it is the duty of the governor to make a new appointment.
    Heabd on demurrer to petition.
    Emmitt Tompkins and J. H. Allen, for plaintiff.
    Lentz, Fritter & Belcher, for defendants.
    The action is brought in the name of the state without warrant or authority of law. Revised Statutes 6760, 6762, 6763, 6764 (Lan. 10353, 10355, 10356, 10357).
    The relator must show title in himself to the office oh supervisor of public printing, and cannot rely on any defect in the title of the defendant. 23 Am. & Eng. Ene. Law (2 ed.) 351; Toney v. Harris, 85 Ky. 453 [3 S. W. Rep. 614]; McCall v. Well, 125 N. C. 243 [34 S. E. Rep. 430]; Jefferson Co. (Justices) v. Clark, 17 Ky. (1 T. B. Mon.) 82; State v. Brewster, 44 Ohio St. 589 [9 N. E. Rep. 849],
    The petition should allege that the relator was at the time of his alleged ejection, and has ever since been, possessed of the necessary qualifications for the office of supervisor of public printing. State v. Beecher, 15 Ohio 723.
   DUSTIN, J.

This action was brought under favor of Rev. Stat. 6764 (Lan. 10357), and is before the court on a demurrer to the petition. We conclude :

First, that the case is properly entitled. See State v. Taylor, 50 Ohio St. 120 [38 N. E. Rep. 24]; 17 Enc. Pl. and Pr. 433, and cases there cited.

Second, that when an action in quo warranto, on the relation of a private individual, is brought to oust the incumbent from an office to which the relator claims title, the petition must show a prima facie right, in the relator to the office claimed. Toney v. Harris, 85 Ky. 453 [3 S. W. Rep. 614]; People v. Perley, 80 N. Y. 624; State v. Hay, Wri. 96; and numerous citations in 23 Am. & Eng. Enc. of Law (2 ed.) 626.

Slater sets forth that he was appointed to the office of supervisor of public printing by Governor Nash, June 1, 1903, and reappointed by Governor Herrick, June 1, 1905; but, that the latter appointment (made in vacation) was not confirmed at the next session of the senate, which adjourned April 2, 1906.

Averring that no other .appointment — meaning no other legal appointment- — -has been made, the relator claims to be a “holdover,” and entitled to continue in possession under Rev. Stat. 8 (Lan. 9), which provides that—

‘! Any person holding an office of public trust .shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws.”

In the ease of appointive state offices, — such as supervisor of public printing, — it is “otherwise provided,” as follows:

Revised Statute 12 (Lan. 13).' “In case of a vacancy in any office filled by appointment of the governor, by and with the advice of the senate, .occurring by expiration of term, or otherwise, when the senate is in session, the governor shall appoint a person to fill such vacancy, and forthwith report such appointment to the senate; and when the senate is not in session, and no appointment has been made and confirmed, in ¡.nticipation of such vacancy, the governor shall fill the vacancy and report the appointment to the next session of the senate; and if the senate advise and consent to the same, the person so appointed shall hold the office for the full term; and if the senate do not so advise and consent, a new appointment shall be made.”

The last clause of the foregoing section applies exactly to the circumstances of this case. The senate did “not so advise and consent” to the second appointment; therefore, Slater’s legal incumbency immediately ceased.

It became the duty of the then governor at once to make a new appointment. Until that was done Slater was a de facto, but not a de jure official.

If the remaining averments of the petition as to Johnson’s usurpation of the office be true, as the demurrer technically admits, it is a ease for action by the attorney-general, not by Slater, since he shows no right to the office in himself.

The demurrer will be sustained.

Wilson and Sullivan, JJ., concur.


text:
    RECEIVERS.
    [Hamilton (1st) Circuit Court,
    February 18, 1905.]
    Jelke, Swing and Giffen, JJ.
    Elizabeth Eichert, Exrx. v. Elizabeth Eichert, Widow, et al.
    Hight to Receivership Funds on Discharge oe Receiver.
    In an action to sell real estate to pay the debts of a decedent, a receiver having been appointed on the application of certain creditors and subsequently the action dismissed, without prejudice, as to all parties applying for the receivership and the receiver discharged, the money and property in the hand of the receiver at the time of his discharge are held subject to the order of the court appointing him, and the successful party to such action is not entitled to any part of the receivership funds by virtue of the discharge of the receiver and dismissal of the action.
    Appeal from Hamilton common pleas court.
    F. S. Starkey and J. G. Hudson, for plaintiff.
    Chris. Von Seggern and Tafel & Schott, for defendants.
   GIFFEN, J.

This action was commenced in the court of common pleas for the purpose of selling real estate to pay the debts of the testator.

On November 21, 1900, the defendant, F. S. Starkey, was appointed receiver to take charge of all the property in the petition described, with sole power to collect rents from the various tenants and to apply the proceeds thereof under the direction of the court toward the insurance of the premises against loss by fire, and toward the redemption of said property from forfeiture for unpaid taxes.

On April 11, 1901, the action was dismissed without prejudice to the rights and claims of the Bodmann German Protestant widows’ home, Gustav Tafel, and W. T. Wagners’ Sons Company on their mortgages held by them respectively.

On October 10, 1903, F. S. Starkey, as receiver, took a receipt from Elizabeth Eichert, life tenant of the premise, for the sum of $455.73.

On October 12, 1903, the court made an order directing- the receiver to turn over the money then in his hands, and collected by him as receiver, to Elizabeth Eiehert. On October 31, 1903, the court found that this order was inadvertently made and thereupon set it aside.

On March 30, 1904, F. S. Starkey and J. G. Hudson were made parties defendant, and filed an answer in which they aver that on the-day of October, 1900, Elizabeth Eiehert, the life tenant, in consideration of services performed and to be performed by them as attorneys, assigned and transferred to them all of the rents, amounting to $1,200, and that after deducting the $455.73, for which the receipt of Elizabeth Eiehert had been given, there remained a balance due of $744.27.

On March 30, 1904, the report of the receiver showing a balance of $1,628.41 in his hands, was approved and confirmed. And the cans'1 coming on further to be heard upon the motion of Elizabeth Eiehert, to require the receiver to pay over to her the funds in his hands, and the answer of F. S. Starkey and J. G. Hudson, the court ordered the receiver to pay the sheriff of Hamilton county, Ohio, said sum of $1,628.41, together with all rents collected since February 20, 1902, less the necessary expense and the fee to him, F. S. Starkey, of $175, and ordered the sheriff to distribute and disburse said moneys in accordance with the terms of any order the court may make in case No. 123,678, entitled “Gustav Tafel, plaintiff, v. Eiehert et al., defendants, Hamilton county court of common pleas,” in which ease the property described in the petition had been sold'by the sheriff. And thereupon the court terminated the receivership.

No money was paid by the receiver to Elizabeth Eiehert when the receipt of October 10, 1903, was executed. It was simply an exchange of receipts between the receiver and Elizabeth Eiehert, and was without authority from the court appointing him. The subsequent order of October 12, 1903, was never complied with and being set aside on October 31, became a nullity.

It is claimed by the receiver that by the dismissal of the suit, the rights of the parties were finally established, and that as receiver he held the fund for the benefit of the successful party; that no order of the court was required to perfect the title of such party to the fund. He relies upon the rule stated in 23 Am. & Eng. Enc. of Law (2 ed.) 1128, as follows:

“The functions of a receiver are, as a rule, terminated by a final decree in the cause, whereupon the receiver ceases longer to act in the capacity of receiver, but becomes a trustee as to the property in his possession for the person entitled thereto under the decree. This rule applies, it has been held, though there is no formal order made discharging the receiver. ’ ’

In this ease, however, no decree was entered fixing the rights of the parties, but on the contrary the ease was dismissed without prejudice to the rights of the very defendants upon whose application the receiver was appointed. Among those rights was the one to have the proceeds of the rents collected by the receiver applied to the payment of their claims after the payment of taxes or other prior liens:

The receiver is an officer of the court appointing him, and subject to its direction and control. At the time of the appointment, the receiver was empowered to apply the proceeds, under the direction of the court, towards the insurance of the premises against fire, and toward the redemption of said property for forfeiture for unpaid taxes. It appears that no taxes were paid by the receiver. Under such circumstances, Elizabeth Eichert, life tenant, was entitled to no part of the fund, and the receiver was bound to account for the same to the court appointing him.

We think the order appealed from was proper and a like order will be made in this court.

Jelke and Swing, JJ., concur.


text:
    LICENSES.
    [Hamilton (1st) Circuit Court,
    June 12, 1903]
    Swing and Giffen, JJ.

      John C. Uhrlaub v. Cincinnati (City) et al.
    License on Transient Dealers and Temporary Stores Invalid.
    A city ordinance imposing a license fee of $300 on all temporary stores and transient dealers is invalid as it is unreasonable, unjust, prohibitive, and in restraint of trade.
    [For other cases in point, see 5 Cyc. Dig., “Licenses,” §§ 69-77. — Ed.]
    Kramer & Kramer, for plaintiff:
    The ordinance on its face, unjustly discriminates between men in the same business. State v. Gardner, 58 Ohio St. 599 [51 N. E. Rep, 136;'41 L. R. A. 689; 65 Am. St. Rep. 785],
    In order that an ordinance may be sustained as an exercise of police power the exercise of this power must be reasonable and indiscriminat-ing. Sipe v. Murphy, 49 Ohio St. 536 [31 N. E. Rep. 884; 17 L. R. A. 184] ; 22 Am. & Eng. Ene. Law (2 ed.) 938m; Lacy, Ex parte, 108 ^ Cal. 326 [41 Pac. Rep. 411; 38 L. R. A. 640 ; 49 Am. St. Rep. 93]; Austin v. Murray, 33 Mass. (16 Pick.) 121; Lien v. Norman Go. (Gomrs.)\
      80 Minn. 58 [82 N. W. Rep. 1094]; People v. Gillson, 109 N. Y. 389 [17 N. E. Rep. 343; 4 Am. St. Rep. 465]; "Wheeling Bridge & T. By. v. Gilmore, 4 Circ. Dec. 366 (8 R. 658).
    It is agreed by counsel for tbe city and counsel for tbe plaintiff that tbe following additional facts are admitted to be true, and are to betaken as a part of tbe record in this case, to wit:
    First. That tbe plaintiff in tbis case was a temporary and transient dealer within the meaning of the statute and ordinance in question in. this case, and further, that the plaintiff brought his stock of goods from New York to the city of Cincinnati for the express purpose of opening: a temporary store for the sale of the same In the city of Cincinnati, and that he did open said store for the aforesaid purpose.
    Second. It is further admitted that the auctioneer engaged by the plaintiff to sell at auction the goods of the plaintiff in the store opened by the plaintiff, had paid the license fee, and had obtained a license from the city of Cincinnati to act as auctioneer, and that the city of Cincinnati required the plaintiff to take out a further license for the privilege of opening a “temporary store.”.
    Third. That the goods which are described in the petition of the plaintiff, and which were offered for sale by the plaintiff, as described in the petition, were not in the original packagés in which they had been brought from New York to the city of Cincinnati, but that said original packages were broken, and the articles contained in said original packages were taken therefrom, and offered for sale separately.
    A. H. Morrill, for defendants:
    Authority for exacting this license, ordinance No. 248, passed November 14, 1898, entitled “An ordinance to license transient dealers and persons who temporarily open stores or places for the sale of goods, wares and merchandise.” Henderson’s ordinances, page 138.
    Authority for passing such an ordinance, Rev. Stat. 2669b (Lan. 3951).
    Unless specifically prohibited, the legislature of a state has power to pass any or all laws. Dillon, Munic. Corp. Sec. 357.
    This ordinance does not interfere with interstate commerce. Wood-ruff v. Parham, 75 U. S. (8 Wall.) 123 [19 L. Ed. 382]; Leisy v. Hardin^ 135 U. S. 100 [10 Sup. Ct. Rep. 681; 34 L. Ed. 128]; Fichlen v. Shelby Co. Tax. Dist. 145 U. S. 1 [12 Sup. Ct. Rep. 810; 36 L. Ed. 601].
    It does not discriminate against citizens of other states in favor of citizens of Ohio. Brown v. Houston, 114 U. S. 622 [5 Sup. Ct. Rep. 1091; 29 L. Ed. 257] ; Howe Mach. Co. v. Gage, 100 U. S. 676 [25 L. Ed. 754]; Emert V. Missouri, 156 U. S. 296 [15 Sup. Ct. Rep. 367;( 39-L. Ed. 430]; Coldwater (City) v. Bussell, 49 Micb. 617 [14 N. W. Rep. 568; 43 Am. Rep. 478]; Leisy v. Hardin, 135 U. S. 100 [10 Sup. Ct. Rep. 681; 34 L. Ed. 128],
    The legislature of Ohio has authority to give to a municipality power to pass'such an ordinance. BaJcer v. City, 11 Ohio St. 534; Cincinnati v. Bryson, 15 Ohio 625 [45 Am. Dec. 593]; Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463],
    It is a reasonable police regulation. Baguet v. Ward, 4 Ohio 107; Thomas v. Mt. Vernon, 9 0¿io 290; Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463]; Glaser v. Cincinnati, 1 Dec. 398 (31 Bull. 243) ; St. Louis v. Weber, 44 Mo. 547; Van Hook v. Selma (City), 70 Ala. 361 [45 Am. Rep. 85]; Cooley, Const. Lim. Sec. 704; People v. Warden of City Prison, 144 N. Y. 529 [39 N. E. Rep. 686; 27 L. R. A. 718]; Singer v. State, 72 Md. 464 [19 Atl. Rep. 1044; 8 L. R. A. 551]; Dillon, Munic. Corp. Sec. 357.
    The -price exacted is largely a matter for the legislative body to determine. Mirande, Ex parte, 73 Cal. 365 [14 Pac. Rep. 888]; Wolf v. Lansing' (City), 53 Mich. 367 [19 N. W. Rep. 38]; Guerrero, In re, 89 Cal. 88 [10 Pac. Rep. 261]; McNally, Ex parte, 73 Cal. 632 [15 Pac. Rep. 368]; Cincinnati v. Buckingham, 10 Ohio 257.

      Affirmed, Cincinnati v. Uhrlaub, 72 Ohio St. 667.

   GIFFEN, J.

The ordinance involved in this case is unreasonable, unjust and practically prohibitive in fixing the fee for maintaining a temporary store at the sum of $300, regardless of the amount of goods offered for sale, and of the length of time the business is to be carried on. If the value of the goods is $300 or less, the collection of the prescribed license fee in effect confiscates the goods, and, if the licensee wishes to operate a store for one day only he is charged the same fee as one who desires to maintain it for the period of a week, a month, or a year.

The amount of goods on hand, and the success of the venture are both important factors in determining the length of time that the store would be kept open. A ready sale of all the goods might terminate the enterprise, or on the other hand, induce the proprietor to purchase other goods and continue it indefinitely. A merchant could rarely afford to pay the sum of $300 for the privilege of opening a temporary store, and hence this provision of the ordinance operates in restraint of trade. For these reasons we hold the ordinance to be invalid, and reverse the judgment of the common pleas court.

Swing, J., concurs.