author: Allread, J.

text:
    GUARDIAN AND WARD — REAL ACTIONS — WILLS
    [Champaign (2nd) Court of Appeals,
    May, 1920.]
    Ferneding, Kunltle and Allread, JJ.
    Jesse P. Kellough v. J. S. Moses, Admr.
    1. Guardian ad Litem not Disqualified because Partisan of Ward.
    A person not interested in the subject matter of litigation may be appointed to act as guardian ad, litem of a minor defendant. The fact that the guardian ad litem is loyal to and a partisan of the ward is no disqualification.
    2. Proper Parties in Will Contest.
    One having a contingent or expectant interest under a will is a proper party to an action to contest said will.
    3. Proper Parties in Land Registration Proceeding.
    In proceedings under the act for the registration of titles to real estate, parties having legal or equitable rights including vested, contingent or expectant estates may be brought in and their rights therein may be determined.
    4. Determination of Rights of Minors in Land Registration Proceeding.
    When a will has been contested and set aside a minor defendant in such proceedings may be required, in a subsequent proceeding under the registration act brought by a purchaser from the heirs, to set forth any claim such minor may have to' set aside the judgment in the will contest case, and if such claim of such minor be found to be merely colorable and not substantial the cloud arising therefrom may be removed and the title to said real estate may be registered.

      5. Judgment in Will Contest Defeating will not Conclusive on Minor Claimant in Land Registration Proceeding.
    A judgment in a will contest case setting aside the will is not conclusive upon the minor defendant, but may be impeached for fraud or other equitable grounds within the limitation prescribed by Sec. 11603 G. C., or when brought in as a claimant under the registration act.
    6. Title of Bona Fide Purchaser from Heirs without Notice of Claims of Minors.
    When a judgment setting aside a will is regular upon its face, a purchaser from the heirs at law, without notice actual or constructive of the equitable defense against such judgment by a minor defendant, has superior rights, and the title of such dona fide purchaser can not be impeached by the minor upon a defense not going to the jurisdiction of the court in the will contest case nor appearing upon the face of the record in that case.

      Deaton, Bodey & Bodey, George V. Frómme and Heide <& Sanderson, for plaintiff.

      Wilson & Rector, for Buckeye State Bldg. & Loan Co.

      Johnson & Miller, Owen & Owen and H. W. Houston, for defendant, Lucile Stewart.
   Allread, J.

Tbe plaintiff claims to be the owner in fee of a tract of about 400 acres of land in Champaign county and brings this action to register his title. The adverse claimant is Lucile Stewart, a minor.

The common source of title is William Stewart who died January 15, 1909, aged about ninety years. On April 23, 1908, William Stewart executed a paper writing purporting to be his last will and testament. The will was duly probated.

The surviving relatives of William Stewart were Elizabeth Stewart, his widow, and William A. Stewart his only child and sole heir at law.

William A. Stewart was at the death of his father married and had one child, to-wit, Lucile Stewart, then of the age of about five years. Lucile Stewart is the only child and is the heir apparent of her father William A. Stewart. Francis I. Stewart was the wife of William A. Stewart and mother of Lucile. Lucile Stewart claims title under the following item of her grandfathers will:

“Item 1st, I give and devise to my beloved wife in lieu of her dower the farm on which we now reside, situated in Salem township, Champaign county, Ohio, containing 400 acres. Also about 108 acres known as the Wright land, situated in Champaign county, Ohio, during her natural life and all the stock, household goods, furniture, provisions and all monies due me and in bank at the time of my decease I give and devise to her absolutely. At the death of my said wife the real estate aforesaid I give and devise to my son William A. Stewart during his natural life, and then to his heirs in fee simple.”

February 20, 1909, William A. Stewart, Francis I. Stewart and Elizabeth Stewart brought an action to contest the will of William Stewart. The administrators, with the will annexed, of William Stewart and Lueile Stewart were made parties defendant. A guardian ad litem was appointed for Lueile Stewart as provided by statute.

The record of that case shows that the trial resulted in a verdict and judgment setting aside the will. The plaintiff claims under successive conveyances from the widow and heirs at law of William Stewart, deceased.

In the registration ease Lueile Stewart was brought in as a defendant. Her defense is made by J. T. Journell as guardian ad litem. Her defense finally rests upon her third amended answer and cross petition in which she claims in substance that at the time of said proceedings to contest the will she was an infant of tender years, under the control of those adversely interested, and was wholly incapable of understanding the nature and effect of the proceedings, entirely ignorant of her rights, had no guardian or attorney to represent her, and that the guardian ad litem originally appointed who was preparing to make a defense and to resist the efforts to set aside the will was removed and another guardian ad litem appointed who was subservient to the wishes of those adversely interested and did not call witnesses or make a real defense in said case; by reason whereof it is claimed that said Lueile Stewart was not bound by said judgment and has a right to open up the same and secure a new trial of said will contest case. The plaintiff answers to the cross petition of said Lueile Stewart. The answér sets out the record in the will contest case more fully and denies the charge of fraud. It is also averred that J. T. Journell, as guardian in fact, brought suit in the common pleas court to open up and set aside the said judgment in said will contest case and that upon the trial thereof said plaintiff dismissed said action.

The second defense sets out that the plaintiff was a purchaser of said real estate, after the decision of the will contest case, for full value after an examination of the title of record and without notice of the claim of said Lucile Stewart.

The case is submitted at this time upon the pleadings.

It is claimed that J. T. Journell is not a “disinterested” person and was, therefore, incompetent to be appointed as guardian ad litem in the present case.

“Disinterested” as used in the registration act evidently means one not interested in the subject matter. We think the fact that Journell was loyal to and even a partisan of the interests of Lucile Stewart was no legal objection to his competency to be appointed and to act as guardian ad litem.

It is claimed that Lucile Stewart was not a proper nor necessary party in the will contest case. In order to determine this question we must consider the provisions of the will. If, under the will, she had no vested, contingent or expectant interest in the land in controversy then the case would be resolved into a moot question. Considering the whole of Item 1 we think the estate of the widow in the 400 acres as well as the 108 acre tract was subject to the devise to the heirs of William A. Stewart. The period following the devise of the 400 acre tract is not conclusive. Noble v. Ayers, 61 Ohio St. 491 [56 N. E. 199]. Punctuation yields readily to the context.

It is not necessary to place a definite or final construction upon the clause in the will under which Lucile Stewart claims. It is sufficient for the present to say that under a reasonable construction of that clause she has either a contingent or an expectant interest in the fee. She was the only living representative of the fee simple interest. If her estate was vested or contingent she would be a proper party in the will contest case to make the defense. If her estate was merely in expectancy, while she could probably not convey or release it still she had the right to defend it and was therefore a proper party. Campbell v. Watson, 8 Ohio, 498.

The question is raised as to the jurisdiction of the court in the registration case. The evident purpose of the registration act was to confer broad powers upon the registration court. The proceeding is essential in rem and includes jurisdiction to determine legal or equitable rights including vested, contingent and expectant estates.

The statute conferring jurisdiction, Sec. 8572-1 Gr. C., provides :

‘ ‘ Said courts shall have full power to inquire into the condition of the title to any and all interests or estates, legal or equitable in land, or any lien, charge or incumbrance theron and to make all such orders, judgments and decrees as may be necessary to settle, determine, establish and declare as against all persons known and unknown, in being or unborn, the said title, interest or estate, and all liens and incumbrances existing therein, and the order and preferences as between the same, and to remove as against all persons known and unknown, in being or unborn, clouds from the title and forever quiet and settle the same.”

See also Sec. 8572-5-8-16 6. C.

The registration proceedings were instituted in the court of common pleas, being the same court where the will contest was decided and which would have jurisdiction of an application to open up that judgment. We, therefore, have in the trial court the broad powers conferred upon a registration court combined with those of a court having jurisdiction over the action of the judgment in the will contest case.

Lucile Stewart claims under Sec. 11603 Gr. C.

‘1 It shall not be necessary to reserve in a judgment or order the right of a minor to show cause against it after attaining the age of majority; but in any ease in which, but for this section, such reservation would have been proper, within one year after his majority, the minor may show cause against such order or judgment.”

It is claimed by counsel for plaintiff that Sec. 11603 Gr. C., does not apply to a will contest case. It is contended that the will contest chapter is exclusive. There is some foundation for this contention in the history of the will contest statutes and in the decision of the Supreme Court in the case of McVeigh v. Fetterman, 95 Ohio St. 292 [116 N. E. 518], No doubt at one period in the history of the will contest statutes an exclusive remedy was therein provided to open up the judgments in such eases, but those statutes have been repealed and a will contest is now declared to be a civil action. It was held by this court, and affirmed by the Supreme Court, that the three-fourths jury law provided for civil actions was applicable to will contest cases. This decision would have a bearing upon the relationship of will contest eases to other civil actions and the scope of the code of procedure. While the questions here presented is not without doubt we are strongly inclined to the view that after the repeal of the special sections providing for opening up judgments in contest of-' will eases that the provisions of the civil code in respect thereto would apply. We think it would be a dangerous inovation to bar minors of tender years of the special right to open up judgments in such cases. We are, therefore, of opinion that Section 11603 G. C., applies. It is further claimed by counsel for defendant that Sec. 11603 G. C., gives the minor an absolute right to withold his application until the extreme period of limitation unless such minor through a proper agency voluntarily chooses to precipitate the contest.

Whatever might have been the rule heretofore we are of opinion that under the registration laws the registration court would have jurisdiction in a proper case to require a show down of the minor’s rights. It is a matter of common knowledge that minors are interested in many will contest cases where such minor’s rights have been zealously guarded and where no fraud exists. To hold the extreme rule that every minor is entitled to have his day in court after he becomes of age would place a cloud upon many titles unjustly. The registration act was intended to remove merely colorable clouds and free the title from purely technical difficulties.

The minor here files not only an answer but a cross petition. The guardian ad litem in this case is also her guardian in fact. She has, therefore, by the agencies provided by law chosen to present her ease and while she asks as an alternative that the registration be dismissed .she states the facts upon which her claim to title rests and this, we think, would justify a registration court in determining whether she has in fact a right to open up the judgment. See Rammelsburg v. Mitchell, 29 Ohio St. 22.

The minor is now almost of age and according to the pleadings is no longer controlled or surrounded by parties adversely interested. There is, therefore, no apparent reason for holding the case open. If the evidence discloses that she has no right to open the judgment in the former case, then the title of plaintiff should be quieted and registered because in such case her right would be purely technical and not substantial.

There remains for consideration two questions:

(1) The sufficiency of the third amended cross petition of Lucile Stewart; and

(2) The sufficiency of the second defense of the answer of the plaintiff thereto.

It is contended that the third amended cross petition should affirmatively state that the said defendant, Lucile Stewart, has a defense to the action to set aside said will. We think such defense was included in said third amended cross petition by necessary inference and that the cross petition states facts showing a right to open up the judgment at least as against the parties to the judgment and is, therefore, good against a general demurrer.

The second defense of plaintiff’s answer to said cross petition sets forth in substance that the plaintiff purchased the real estate involved in this action after the judgment setting aside said will for full value and without notice of the equity now claimed by Lucile Stewart. This question is not without difficulty. It is the general rule that the title of a bona fide purchaser without notice is not affected by the subsequent setting aside of a judgment, upon which the title rests, for fraud, or other infirmity not appearing upon the face of the record and not going to the jurisdiction of the court. The claim here is that the rights of the infant defendant are based upon a statutory reservation. Counsel for defendant, Lucile Stewart, claims with considerable force that the statutory reservation has the same effect as if it had been actually written in the decree and that all purchasers who took title were bound to know that the minor might at any time within one year after arriving at the age of majority file an application to open up the judgment.

In the case Carey v. Kemper, 45 Ohio St. 93 [11 N. E. 130]; Long v. Mulford, 17 Ohio St. 485; and Rammelsberg v. Mitchell, supra, this statute (now Sec. 11603 G. C.) in substantially the same form was considered. Neither of those cases show that the right of a bona fide purchaser was involved or considered. It was held, however, that the statute merely preserved the rights of the minor as they had been formerly preserved in the journal entry by the usages of courts of equity.

In the case of Ludlow v. Kidd, 3 Ohio, 541, the rights of a bona fide purchaser were involved.

The action there was brought by infant heirs to obtain legal title to certain real estate and was dismissed. Subsequently a bill of review was filed by said minor and the judgment of dismissal was reversed. After the decree of reversal the purchaser who took- title for full value after the dismissal of the original action and before the filing of the bill of review by the minor was made party. Judge Sherman in announcing the opinion discusses the question at considerable length and reviews the leading English and American authorities. Judge Sherman says:

“The argument for complainants is, that the statute giving the infants a day after they became of age, to file a bill of review, is to be taken as part of the decree itself, and considered as if the privilege was contained on its face; and that the legal effect thereof is, that it remains a matter pendente lite, until the rights reserved by the decree are extinguished. I do not consider it at all important to determine in this case whether the statute is to be so blended with the decree, as to be considered a part of it, for if the decree had, in terms reserved to the complainants the right of showing cause against it, after they arrived at age, it would not have had the effect of continuing the cause until that period. A decree to be final, need not conclusively settle and determine all the questions litigated, or rights involved in the suit between the parties, but it must put an end to that particular suit. The decree of dismissal in the original suit has all the requisites of a final decree. It is so in its terms; it is rendered upon final hearing; the court adjudicate upon the equity of the parties, and find that equity in favor of the defendants, and that the complainants are not entitled to the relief which they seek, and decree a general dismission of the bill, with costs. Nothing is reserved or left for further determination by the court, but the whole controversy between the parties is disposed of, and a final end pnt to that particular cause, and I can not perceive that the decree, being against infants, at all changes its character or alters its effect as to third persons. ’ ’

This case has not been overruled nor criticised by any subsequent case in this state. It has been followed not only in this but in many other states. Ohio River R. Co. v. Fisher, 53 C. C. A. 411 [115 Fed. 929]; Perkins v. Pfalzgraff, 60 W. Va. 121 [53 S. E. 913]; England v. Garner, 90 N. C. 197; Cheever v. Minton, 12 Colo. 557 [21 Pac. 710; 13 Am. St. 258]; McCormick v. McClure, 6 Blackf. (Ind.), 466 [39 Am. Dec. 441]; Union Bank v. Ames, 37 Iowa, 672; Wadhams v. Gay, 73 Ill., 415; Rector v. Fitzgerald, 8 C. C. A. 277 [59 Fed. 808] ; Aldrich v. Chase, 70 Minn., 243 [73 N. W. 161]. See also Freeman, Judgments, Sec. 513.

Section 11633 G-. C., provides that:

“The title to property which is the subject of judgment or order sought to be opened, and which, by or in consequence of the judgment or order has passed to a purchaser in good faith shall not be affected by proceedings under the next two preceding sections. ’ ’

This section was brought into the code of civil procedure in 1853 (51 O. L., 57). It was then limited to cases of constructive service. Later on in the revision of 1880 it was incorporated in Sec. 5356 E. S., and made applicable to all proceedings to vacate or modify a judgment after the term.

Section 11633 has been held applicable to the case of a purchaser under judicial sale. Moor v. Parsons, 98 Ohio St. 233 [120 N. E. 305]; Stites v. Weidner, 35 Ohio St. 555. Whether the section would include the case of a purchaser at private sale under a title declared by the original decree has never been decided in this state. In the ease of Union Bank v. Ames, supra, the Supreme Court of Iowa under a statute which has some elements of similarity to Sec. 11633, held that it applied to a purchaser at private sale under a title establishd by a judgment. A somewhat similar holding was made in the case of Aldrich v. Chase, supra, by the Supreme Court of Minnesota. We do not think it is necessary to determine whether the case at bar falls within the protection given by Sec. 11633. That section was not, in our judgment, intended to restrict the rights of purchasers previously existing under the rules of chancery. We are of opinion that a bona fide purchaser from a party whose title rests upon a decree of a court is protected against a minor who makes a subsequent application for the opening up and vacating of said judgment.

We therefore, hold that the second defense of plaintiff to the third amended cross petition of the defendant, Lucile Stewart, is sufficient against a general demurrer, and if not denied, disputed or overthrown by evidence would constitute a good defense.

The motion of the defendant, Lucile Stewart, for a judgment in her favor upon the pleadings is, therefore, overruled. The cause will be retained for trial upon the pleadings.

Ferneding and Kunkle, JJ., concur.


source: Caselaw Access Project

author: MAUCK, J.

license: Public Domain

text:
    LICENSE — TAXATION
    [Hamilton (1st) Court of Appeals,
    June 16, 1921.]
    Sayre, Middleton and Mauck, JJ., of Fourtli District sitting by designation.
    Welfare Loan Co. v. George P. Carrel, Aud.
    1. State System of License and Municipal Occupational Tax, not in Conflict.
    A license issued by the state, authorizing the holder to carry on the business of loaning money on chattel mortgages and assignments of wages, does not exempt such holder from the levy of an occupational tax by an ordinance of the municipality wherein such business is conducted.
    2. Fee Exacted by State System of License not Tax.
    The fee exacted by Sec. 6346-2 G. C., is not a tax.

      Ralph E. Clark, Buchwalter, Headley & Smith, McCauley & Simanonds, Barton E. Robinson and Sanford Brown, for plaintiffs in error.

      Saul Zielonka, for defendant in error.
   MAUCK, J.

The plaintiff brought its action in the common pleas to enjoin the auditor of Cincinnati from collecting an occupational tax levied under a city ordinance, which among other things provided that persons or corporations loaning money on chattel mortgage should pay an annual tax of $100; those loaning money on the Morris plan should pay a tax of $150, and those loaning on an assignment of wages should pay $100. The petition alleges that the plaintiff is duly licensed by the state of Ohio to engage in the business of loaning on chattels and assignments of wages and has paid the annual license fee therefor, and is by reason of that fact exempt from the operation of the ordinance referred to. The common pleas sustained a demurrer to the petition and error is now prosecuted to the judgment that followed the sustaining of the demurrer.

The occupational tax ordinance of Cincinnati is constitutional, the power to enact the same proceeding directly from the constitution. State v. Carrel, 99 Ohio St. 220. The exercise of this constitutional power is, however, subject to express statutory limitations, Art. 18, Sec. 13, and possibly to an implied limitation when the state by statute exercises the right to tax the same subject-matter.

The contention of the plaintiff in the instant case is that the state has, by enacting Secs. 6346-1 G-. C., et sep., expressly excluded the municipality from taxing the business of the plaintiff corporation, and that the state has by implication excluded the municipality from this field of taxation by itself imposing such tax under the statute referred to. An examination of this act discloses that by Sec. 6346-1 it is made unlawful to conduct such a business as that engaged in by the plaintiff without first obtaining a state license therefor. The succeeding section provides that the licensee shall pay an annual fee of $100 and “no other or further license fee shall be required from any such licensee by the state or any municipality. ’ ’ The argument of the plaintiff is that the statute and ordinance in-effect cover the same field; that the legislature in denying to the city the right to exact a license fee from a loan company denies it the right to levy an excise tax on such business; and that in as much as both the statute and ordinance exact the payment of money for and on account of the same business that the character of these exactions is indistinguishable. In effect the position of the plaintiff is that no distinction can be made between a tax and a license fee, or that if there be any such distinction that both of these are of the same kind and that they are both taxes or that they are both licenses. This position we deem unsound. The principle involved is not a new one in Ohio. However the lexicographers may define the words tax and license, the Supreme Court of this state has determined that the words have a distinctly different meaning in the legislation of this state. Under the Constitution of 1851 the legislature was inhibited from licensing the traffic in intoxicating liquors. Notwithstanding this the Supreme Court held that it had the right to tax the business of trafficing in intoxicating liquors. Adler v. Whitbeck, 44 Ohio St. 539 [9 N. E. 652], The distinction is not obeure. In State v. Hipp, 38 Ohio St. 199, the court held:

‘ ‘ A license is permission granted by some competent authority to do an act which without such permission would be illegal.”

Now the statute under immediate consideration made the particular loan business in question illegal except where permission was granted to the licensee. That business became legal whenever the state’s license was issued. It was not only reasonable, but was necessary, when the state granted permission to transact business in Cincinnati that the city be inhibited from further power to license, otherwise the state’s exercise of its police power could be destroyed by mere municipal exercise thereof. The city, however, did not by the ordinance in question assert a power to deprive the loan company of its right to do business. It did not challenge the state’s license in any way. It only provided that all persons or companies pursuing this occupation in the city, as well as all those pursuing other designated followings, should pay the tax prescribed.

‘ ‘ It would not be claimed that a tax upon the property employed in the business, as the fixtures and stock in trade, is a license to carry it on. And yet a tax upon the business itself is no more the granting of a permission to engage in it than is the levying of a tax upon the property employed in the business. In either case, if the tax is not paid, the property of the owner liable to the tax may be distrained by the state and sold to satisfy it.
“The distinction between a tax upon a business, and what might be termed a license, is, that the former is exacted by reason of the fact that the business is carried on, and the latter is exacted as a condition precedent to the right to carry it on. In the one case the individual may rightfully engage in and carry on the business without paying the tax; in the other he can not. ’ ’ Adler v. Whitbeck, supra.

It is clear, therefore, that the ordinance is free from any infirmity imposed by that provision of the statute which denies the city the right to require a license.

The further contention that if the ordinance be construed to levy a tax that the statute referred to is likewise a tax upon the occupation of the licensee, and that the tax levied by the city must for this reason be enjoined so long as the statute is operative, finds no support in the language of the statute. The statute adequately and accurately creates a system of license, as defined in the Hipp ease and the Adler case. It does not come within the definition of a tax. It is not a levy upon a business being carried on, but its payment is made a condition precedent to carry on such business. ' The statute, therefore, exacts only a fee for a license permitting the plaintiff to engage in the business, while the ordinance levies a tax upon the business so authorized to be conducted. The existence of one does not militate against the other.

The court of common pleas properly sustained the demurrer to the petition of the plaintiff.

For like reasons demurrers were properly sustained in the eases brought by The Beneficial Loan Society, The Cincinnati Collateral Loan Company, The Globe Security & Loan Company, and The Citizens Mortgage Loan Company. In all these, as well as in the instant ease, the judgment is affirmed.

Sayre and Middleton, JJ., concur.


author: ALLREAD, J.

text:
    ARREST — MUNICIPAL CORPORATIONS
    [Franklin (2nd) Court of Appeals,
    September 29, 1920.]
    Allread, Ferneding and Kunkle, JJ.

      Jay H. Burwell v. Columbus (City).
    Illegal Act by Policeman not Basis for Action against City.
    A city is not liable for the action of a police officer in making an arrest under a state law.
    W. B. McLeshey, for plaintiff in error.

      Scarlett, Leach & Godown, for defendant in error.

       Motion to certify overruled by Supreme Court, December 14, 1920.

   ALLREAD, J.

. The action in the court below was brought by Burwell against O’Connor a police officer and the city of Columbus to recover damages for a false arrest.

The city of Columbus interposed a demurrer to the petition which was sustained and a final judgment rendered in favor of the city. Error is prosecuted to that ruling and judgment.

Counsel for plaintiff in error in their brief claim as one ground of liability that the city of Columbus failed to require a bond of the policeman whose illegal act made the basis of the action. We find no averment in the petition on that subject and we can not, therefore, consider what would be the result in a case wherein it was averred that the city failed to require a bond of a police officer. We think the authorities, particularly in this state, are to the effect that a city is not liable for the action of a police officer in making an arrest under the state law. A police officer in such case while he holds a commission from the city acts for the state. We have examined the case of Fowler v. Cleveland, not reported, and are of opinion that the Fowler case is essentially different from the case under consideration.

Judgment affirmed.

Ferneding and Kunkle, JJ., concur.


author: SHIELDS, J.

text:
    DEEDS
    [Coshocton (5th) Court of Appeals,
    January 14, 1921.]
    Shields, Patterson and Houck, JJ.

      Blanch Johnson et al v. E. C. Darling et al.
    Deeds Containing Reservations Held in Escrow for Delivery after Grantor’s Death, Executed when not under Disability.
    When a land owner executed deeds conveying land to each of his children and placed said deeds in the hands of an attorney to be delivered and become effective at his (the grantor’s) death, and the evidence establishes that the deeds were executed at a time when the grantor was under no disability or inducement and no prejudice resulted to his creditors, the manifest intention of the grantor that these lands should pass to his children as provided in said deeds does not permit of their being declared inoperative because of a reservation contained in each of said deeds, to-wit: “This conveyance is intended by the grantor, James P. Darling, to lay in escrow until the death of the said grantor, and it is not intended to be of any force or effect in the lifetime of the said grantor, but is intended to be of full force and effect immediately upon the death of said grantor.”

      G. R. Bell and T. H. Wheeler, for plaintiffs.

      Merrell, Shepler <& Burhlew, and L. N. Stoats, for defendants.

       Motion to certify overruled by Supreme Court, May 10, 1921.

   SHIELDS, J.

This case is before tbis court on appeal from the judgment of the court of common pleas of Coshocton county, and involves the title to certain real estate which the plaintiffs seek to have partitioned.

The plaintiffs set up that as children and heirs at law of James P. Darling, deceased, they are each seized in fee simple of a one fourth interest in certain real estate described in their amended petition. That the defendant E. C. Darling, a son of the said James P. Darling, has a one-fourth interest therein, and that he has received the rents and profits arising from said real estate since June 9, 1918, when the said James P. Darling died, leaving no widow surviving him, and leaving sufficient personal' property to pay all debts and claims against his estate.

The said E. C. Darling and the defendant J. Floyd Moore claim an interest in said real estate adverse and hostile to the rights and estate of the plaintiffs therein.

Partition of said real estate is prayed for, that the said E. C. Darling be required to account for said rents and profits, that the claims of the defendants E. C. Darling and J. Floyd Moore’s interests adverse to plaintiff’s interests in said real estate may be declared null and void, and that the plaintiff’s title be quieted against the same.

The defendant E. C. Darling in a separate answer admits that he is a son of the said James P. Darling, deceased, and that said decedent left no widow surviving him, and that he left no debts that his personal estate will not fully pay, and he denies all the other allegations in the plaintiff’s said petition.

In a cross petition he says that he is the owner in fee simple and in actual possession of tracts numbered 1 and 3 of the real estate described in the plaintiff’s said petition, and he denies that the plaintiff’s, or either of them, have any interest in or title to said numbered tracts, or either of them, or that this defendant’s title thereto is a cloud upon any real estate owned by the plaintiffs, or either of them, and he says that said claim of the plaintiffs in this respect is unfounded and wholly untrue, and he asks that said claim be adjudged null and void and that this defendant’s title thereto be quieted.

A general denial of the allegations of the defendant’s answer and cross-petition is made by the plaintiffs.

The case was heard on a transcript of the evidence taken upon the trial in the court below, and the facts developed upon that trial were substantially as follows: James P. Darling at the time of his death left surviving him four children, the plaintiffs and the defendant, E. C. Darling; that he then owned the real estate described in the plaintiff’s amended petition; that prior to his death and on February 25, 1916, he executed four several deeds, one to each of his said four children, conveying to each of them certain parts of the real estate described in said amended petition; that said deeds were on said day executed and delivered by him to L. N. Staats, an attorney at Coshocton, Ohio, to be held by him until the death of said grantor when he (Staats) was instructed and directed by the said James P. Darling, deceased, to deliver said deeds to each of the grantees named therein; that on the same day of the execution and delivery of said deeds, the said James P. Darling also executed a power of attorney to the said L. N. Staats, containing further and specific instructions relative to said deeds; that upon the death of the said James P. Darling, the said L. N. Staats delivered said deeds to each of the grantees named therein, agreeably to said instructions and directions, which said deeds were by each of said grantees subsequently entered of record in the recorder’s office in said Coshocton county.

On behalf of the plaintiffs it was claimed that the deeds mentioned are not valid but inoperative as such for various reasons stated in oral argument and in the brief of counsel.

Contracts as related to deeds are to be interpreted by the same rules of law applicable to other contracts, namely, to' ascertain and carry out the intention of the grantor. Technical rules.of construction are not favored in this class of cases, and as held by the courts, they are not to be so applied as to defeat the intention of the grantor, the controlling object being “to ascertain and give effect to the intention of the parties as gathered from the entire instrument, together with the surrounding circumstances, unless such intention is in conflict with some unbending canon of construction or settled rule of property, or is repugnant to the terms of the grant. Furthermore, the primary or dominant intent must prevail over a secondary intent, where the two are inconsistent. Wherefore if two clauses are inconsistent they must be construed so as to give effect to the intention of the parties as collected from the whole instrument.” With this statement of the law before us, illustrating as it does the necessity of first ascertaining the intention of the contracting parties, we think it sufficiently appears from an examination of said transcript of evidence that the said James P. Darling undertook to divide his real estate between his said children during his lifetime by the execution of deeds to them of certain parts thereof, that he deposited them with a third party to be delivered to the grantee named therein, upon his death, and that they were so delivered and subsequently entered of record by said grantees. Nothing appears that said decedent was under any disability, nor that the rights of any creditors were prejudiced, nor is any claim made that his act was induced or influenced by any word or action of either of said grantees.

As owner of this real estate it is not questioned but that the said J ames P. Darling had a right to dispose of it as he saw fit, and in the manner he saw fit, provided of course that the same was lawfully done. Here, as stated, his plan of distributing and dividing his property was laid before the said L. N. Staats who prepared and became the custodian of the deeds, at the grantor’s request, for the purpose stated. But it is contended on behalf of the plaintiffs, admitting that said deeds were executed at the time and for the purpose stated and were delivered by the custodian thereof after the death of the said James P. Darling to the grantees therein named, that said deeds were not his deeds and “were not deposited with the purpose and intent of effecting a present conveyance.” Looking to the authorities bearing upon this question, in this State, among others, we find it held in Mitchell v. Ryan, 3 Ohio St. 377, that—

“No precise form of words is requisite to a delivery to a third person for the use of the grantee. It is sufficient that such intention on the» part of the grantor appears from his declaration and the circumstances of the case. ’ ’

And in Ball v. Foreman, 37 Ohio St. 132, it is held that:

“Where a grantor in a deed delivers the same to a third person as his deed, to be delivered to the grantee at the death of the grantor, and the deed is accordingly delivered to the grantee upon the grantor’s death, the title passes to the grantee as of the date of the first delivery.”

And in Crooks v. Crooks, 34 Ohio St. 610, it is held that:

“Where the grantor delivers his deed to a third person to be delivered by him to the grantee at the death of the grantor, without reserving to himself any control over the instrument, and such deed is delivered accordingly to the grantee, the title passes to the grantee upon such last delivery, and by relation, the deed takes effect as of the date of the first delivery. ’ ’

And the same doctrine was applied and upheld in the case of Patrick v. Parrott, 92 Ohio St. 184 [110 N. E. 725], thus showing this mode of distribution of one’s property in his lifetime by the execution of a deed placed in the custody of a third person, (with no control or power of revocation reserved over said deed) with directions to be delivered after the grantor’s death to the grantee named therein, and such deed is so delivered, is a lawful mode of distribution.

But it was argued on behalf of the plaintiffs that said deeds passed no present title to the grantees named therein and were ineffectual to convey said real estate described therein during the lifetime of the grantor, because of a reservation in each of said deeds, a copy of which is as follows :

“This conveyance is intended by the said grantor, James P. Darling, to lay in escrow until the death of the said grantor, and is not intended to be of any force or effect in the lifetime of the said grantor, but is intended to be of full force and effect immediately upon the death of the said grantor. ’ ’

Taking up the deed made to the defendant, B. C. Darling, which appears to have been the moving cause of this litigation, in the granting clause it recites— “that James Darling, widower, unmarried, in consideration of his love and affection for his son Everett C. Darling and one dollar to him paid by the said Everett C. Darling, the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell and convey to the said Everett C. Darling, his heirs and assigns the following described premises (then describing them), and all the estate, title and interest in and to the said premises, together with all the privileges and appurtenances to the same belonging.”

The habendum clause recites the usual covenants of warranty, and then recites the reservation heretofore referred to when said deed shall take' effect. It appears that the deed was signed by the grantor in the presence of witnesses and acknowledged as required by law. While the language used in the reservation referred to (and which appears in all of said deeds) seems to be out of harmony and inconsistent with the recitals in the granting clause, but does it defeat what appears to have been the fixed purpose and object of the grantor in executing them? That he intended to convey title to his children by deeds executed by him at that time we think clearly appears from the testimony of Mr. Staats, the custodian of said deeds, and that he supposed and believed that he had done so also appears from the testimony of various witnesses, pointing out as he did the property so conveyed to them. This intention also harmonizes with the recital in the granting clause in said deeds. As already stated, the insertion in the deeds of the reservation referred to seems to be repugnant to the grant, but where, as in this instance, there is at least a seeming repugnance to the granting clause, does not-the granting clause control? Further referring to the case of Ball v. Foreman, supra, it is said in that case that

“Conceding the usual effect of the habendum clause in a deed to be, to define the extent of the ownership in the thing granted, to be held and enjoyed by the grantee, yet it is not an essential part of a deed, and its effect may not only be qualified and restrained by other parts of the deed, but where it is repugnant to the grant, it has no validity or effect whatever. It also yields to the manifest intent and terms of the grant,” citing Flagg v. Eames, 40 Vt., 16.
“In Jackson v. Meyers, 3 Johns, 395, Chancellor Kent states the rule as follows:
1 ‘ ‘ The intent, when apparent and not repugnant to any rule of law, will control technical terms, for the intent, not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument, and with an endeavor to give every part of it meaning and effect.’ ”
‘ ‘ In Shepard’s Touchstone, 106, it is said:
“ ‘The habendum, as all other parts of the deed, for the most part, shall be taken most strongly against the grantor, and most in advantage of the grantee, yet so as withal it shall be construed as near the intent of the parties as may be. ’ ”

In their brief counsel for defendants cite us to the case of Smalley v. Smalley, 37 O. C. C. 112 (24 N. S. 353), which, involved the construction of a deed placed in the keeping of a third party to be delivered after the death of the grantor, wherein was added to and as a part of the granting clause the following:

“that said grantor reserves full control and use of said premises during his natural life, with full power to sell and convey said premises, the same as if this deed had not been executed, but in case that said grantor becomes deceased, then the title to said land to rest absolutely in said grantees, tbeir heirs and assigns. ’ ’

Except that the grantor reserved the right to sell and convey the premises described, the case cited is not unlike the case at bar, and in that case the court upheld the deed as valid, rejecting the provisions thereof repugnant to the grant.

While as indicated by the authorities that the intention of the grantor is the polar star by which courts must be guided in ascertaining the legal effect of the act of the grantor, as it applies to the execution of these deeds, to render such transfer effectual, it must also appear that the grantor thereby divested himself of the control of the deeds at the time of their delivery to the said custodian. As stated in 1, Devlin, Real Estate, Sec. 325:

“An essential characteristic and indispensable feature of every delivery, whether absolute or conditional, is that there must be a parting with the possession, and 'of the power and control over the deed by the grantor for the benefit of the grantee at the time of delivery. ’ ’

That while the holding of the courts in all jurisdictions on this question of irrevocably divesting one’s self of all control over the deed during the lifetime of the grantor is not uniform, we think it is settled by the weight of authority that such relinquishment of control is necessary.

Here L. N. Staats is the only surviving witness who could and did testify to the instructions given by the grantor as to how these deeds were to be kept and were kept. He testified that the grantor instructed him and directed him “to take charge of the deeds and preserve them and when he (the grantor) was dead to deliver them to the children — to the parties named in them,” and in answer to a question as to where the deeds were kept from the time they were so signed and delivered to him until the death of the grantor, he answered “they were in my safe cabinet.” There is no testimony whatever that the grantor, James P. Darling, deceased, ever exercised or attempted to exercise any control or dominion over said deeds during his lifetime from the day they were thus placed in the custody and keeping of L. N. Staats, as custodian, nor does it appear that the said James P. Darling, deceased, ever saw or even spoke of the deeds to said custodian after their deposit with him. In some states it has been held that even where the grantor has reserved the right to recall a deed, during his lifetime, but did not exercise such right, delivery was held to be effectual. After all, we take it that the question whether the grantor parted with all dominion and control over the deeds in question at the time of their delivery to the custodian is to be determined from all the facts and circumstances attending the execution of said deeds and the instructions given to said custodian.

The intention to part with the property, with a relinquishment of control over the deed must not only appear, but there must also be a delivery of the deed, and such delivery must be accompanied with the intent that it shall be effective as a conveyance. Here the uncontradicted testimony is that these deeds were so delivered to the witness Staats, accompanied with instructions and directions to deliver them to the grantees therein named upon the grantor’s death, and further, that they were so delivered as his deeds, and being a present unconditional delivery, the deeds became immediately operative. After delivery the deeds became executed contracts and all rights resulting from the transaction were fixed. 1, Devlin, Real Estate, Sec. 264. And further, when a deed is delivered to a third person to be delivered to the grantee on the grantor’s death, the title passes as of the time of the first delivery. Such a deed has been held effectual to pass title even though the grantor retains possession of the premises and received their profits during his life. 1, Devlin, Real Estate, Sec. 281; Ball v. Foreman, supra; Kirkwood v. Smith, 212 Ill. 395, and other cases might be cited.

But it is further contended on behalf of the plaintiffs that these deeds speak by the language used therein as showing the intention of the grantor, and that the reservation made shows that he did not intend that they should have any force and effect presently as his deeds. As a legal proposition it is true that the deeds speak per forée of the language used therein, but may not the declarations of the grantor and the circumstances under which the deeds were executed and delivered be shown? In effect, the reservation was that said deeds, executed and placed •with the said custodian were not to be of any force during the grantor’s lifetime, and were not to become effective until his death. If this was not the intent and purpose of the grantor, why the necessity of any reservation? As was said in Ball v. Foreman, supra, “if the grantor intended no present interest to vest in the grantees, why make this reservation? If the right of property was not to vest until the right of possession attached, and both were intended to be postponed until after his death, the reservation in the deed of the right of occupancy during the life of the grantor, was an act wholly without efficacy or effect. How can a reservation be made when no estate is granted? How can a life estate be reserved by the grantor if the grant does not take effect until he dies?” Surely the reasoning in the case cited refutes the contention that the grantor had no present intention of effectuating a transfer of title at that time. Further, the grantor was the owner of said real estate at the time these deeds were executed, and conceding that they were valid, what right did he acquire under said reservation in addition to those conferred upon him by law? He was entitled to a life estate therein, and was not the reservation unnecessary ? As it appears to us it was, in effect, equivalent to a reservation of a life estate only, with the enjoyment of possession in the grantees to be postponed until after his death, and the mere fact that he reserved a life estate and retained possession of the property was consistent with the execution, delivery and deposit of the deeds, for the purpose stated, with said custodian. This provision in no wise affected his right as a life tenant to enjoy the rents, issues and profits of the property during his life.

Further referring to the reservation in the deeds, it will be noticed that the language employed by the scrivener is that “this conveyance is intended by the said grantor, James P. Darling, to lay in escrow until the death of the said grantor” etc. The mere fact that the scrivener saw fit to describe the transaction as an escrow does not change the character of the legal effect of the act done. The question is, What did James P. Darling intend to do and what did he do by way of giving effect to that intention? As is held in Mitchell v. Ryan, cited, “no form of words is necessary to the declaration of a purpose whose delivery is made to a third person for the use of the grantee,” and in Ball v. Foreman, cited, it is said that “the intent, when apparent and not repugnant to a rule of law will control technical terms, for the intent, and not the words, is the essence of every agreement,” and in 1 Devlin, Real Estate, Sec. 319 it is laid down when discussing whether a deed is to be to the deed of the grantor presently or an escrow, that:

“The determination of this question will depend upon the intent of the parties, and the words used and purposes expressed as indicative of that intention rather than upon the name by which the parties may characterize the instrument. The distinction recognized by the cases is this: If the payment of money or the performance of some other condition is the circumstance upon which the future delivery is to depend, the instrument is an escrow; but where the future delivery does not depend upon the performance of any condition, but it is deposited with a third person merely to await the lapse of time or the happening of some contingency, it will' be deemed the grantor's deed presently.”

In the case at bar no condition was to be performed by the grantees named in the deeds; hence the transaction does not fall within the designation of deeds in escrow.

We find from the testimony given upon the trial in the court below that these deeds were delivered by L. N. Staats, the custodian, to-the grantees therein named, upon the death of the said James P. Darling,, in accordance with his instructions and directions, and that each of said grantees thereupon entered into the possession and asserted rights of ownership over the respective parcels of the real estate described in their several deeds, thereby signifying and constituting an acceptance of the same.

Partition of the first four described tracts in said amended petition numbered respectively tracts one, two, three and four is therefore denied; and finding that the defendant, Everett C. Darling, is the owner in fee simple of tracts numbered one and three as described in his cross-petition, his title thereto is ordered to be quieted as against the plaintiffs and each of them, and all persons claiming under them, and further finding that the plaintiffs and the defendant, E. C. Darling, are tenants in common of the tracts of real estate numbered five, six and seven as described in said amended petition, and that plaintiffs and the said defendant are each entitled to a one-fourth interest therein, a writ "of petition may issue for said three described tracts as prayed for, and for this purpose the same commissioners will be named as were named by the court below.

Patterson and Houck, JJ., concur.


author: HOUCK, J.

text:
    RECORDS
    [Knox (5th) Court of Appeals,
    March 25, 1922.]
    Shields, Patterson and Houck, JJ.
    D. Clarence Parrott v. C. L. Daugherty et al.
    Record's of Plat and Contract as to Width of Street Notice to Abutters Encroaching.
    A recorded plat will be presumed to be correct, and where with the plat there is placed on record a contract with the original owner of the land wherein it is stipulated that a street shall be built in a certain location and of a specified width, purchasers of lots along the line of such proposed street are put on notice as to the stipulation with reference to the street and its width and may not encroach thereon.
    Appeal.

      C. L. Bermont, for plaintiff.

      B. E. Sapp and B. L. Carr, for defendant.
   HOUCK, J.

The petition in substance avers that on February 23, 1906, plaintiff, as guardian of Edna M. Parrott, Lida A. Parrott and Clarence Parrott, entered into a contract in writing with the Tri-State Land Co., whereby he sold to said land company certain real estate located in Clinton township, Knox county, Ohio; that he is one of the owners and in control of twenty-five acres of land lying immediately south of the tract sold to the Tri-State Land Co., and had the management and control of same at the time the contract herein referred to was entered into with said land company.

Plaintiff further says that by the terms of said agreement the Tri-State Land Co. was to open up a public road forty feet wide across the premises herein bargained for, and leading to the premises lying south thereof, of which this plaintiff has the management and control. Plaintiff says that the land herein mentioned, purchased by said land company, was laid out into lots and factory sites, and known as Vernonview, and on or about April 23, 1906, a plat thereof was filed with the recorder of ICnox county, which plat shows the lots, streets and alleys, and that lots were afterwards sold according to the plat herein mentioned; that one of the streets that was opened and dedicated to the public, as shown on said plat, was Union street, which was opened on the line as provided for in the contract of purchase, and the same was opened up^ forty feet in width, as shown on said plat.

Plaintiff says that his most convenient ■ mode of access to the twenty-five acre tract on the south is over Union street from Melick street, and plaintiff says that the defendants have recently purchased lots No. 10, 11, 12 and 13, in Block D, in Vernonview, and also the east one-half of the north one-half of Factory Site No. 3, as the same are designated on said plat. Plaintiff says that the defendants are encroaching upon said Union street, and obstructing and plowing it up, and will continue to do so unless restrained by order of the court; that the plowing of said Union street by the defendants interferes with and prevents his ingress and egress to his land lying on the south of said defendants, and if not prevented from plowing up said street it will result in great and irreparable injury and damage to this plaintiff, for which he has no remedy at law. Wherefore plaintiff prays that the said defendants may be enjoined from obstructing said Union street, or in any way interfering with plaintiff’s travel thereover, and for such other relief as equity may require.

The defendants filed an amended answer to this petition, and in substance aver that said land company failed to dedicate said plat and lots, as required by law, and that the same has never been accepted by the county commissioners; that plaintiff has no right in or over the property described in said petition, and prays that the petition of the plaintiff may be dismissed.

Upon the issue raised by these pleadings the cause was submitted to this court.

The evidence clearly shows that the lots in question were platted by the Tri-State Land Co.; that said lots, with others located in said Vernonview Addition, and the land of what is now known as Vernonview Addition, were purchased of this plaintiff and others, as set forth in his petition; that a written contract was entered into between plaintiff and his associates and the Tri-State Land Co., and it was agreed therein that the street in question should be forty feet wide, in order that plaintiff and his associates might have ingress and egress to the real estate lying south of said Vernonview Addition and now owned by this plaintiff and his associates.

This written contract between plaintiff and his associates and the Tri-State Land Co. was duly filed and recorded November 2, 1906, as appears in Plats Record Vol. 12, page 579, of the Record of Leases in and for Knox county, that some time thereafter said plat of Vernonview was duly recorded on the plat records of the recorder’s office of Knox county, Ohio.

The evidence further shows that the lots owned by defendants were conveyed to them by warranty deed of Frank M. Cochran and wife, bearing date of April 12, 1919, and that said deed is recorded in Deed Book No. 138, page 382, of the deed records of Knox county, Ohio. The description in said deed is as follows:

“The following described real estate, situated in the township of Clinton, county of Knox and state of Ohio, and more particularly described as being lots located in Block D, in the Vernonview subdivision of Clinton township, and being lots No. 13, 12, 11 and 10, except a strip 10x14 feet in width off of the west side of said lot No. 10, and also the east half of the north half of Factory Site No. 3, as the same is designated on plat record in Plat Record of Knox county, Ohio, Vol. 2, at pages 162 and 163.”

It will be observed that the description of the lots in the deed just referred to refers to said plat record of Vernonview Addition and an examination of the plat of Vernonview Addition clearly' shows that said Union street is platted forty feet wide. It therefore follows that in view of the contract entered into between the plaintiff and his associates and the Tri-State Land Company, and which was duly recorded and is of record, and the further plat of Vernonview Addition and its record, and the further fact of the description contained in the deed of the defendants hereinbefore referred to, and its reference to said plat, that said defendants have, in fact and law, only such lights in and to said lots owned by them as would not interfere with plaintiff and the public’s right in and to the free use of Union street as it is laid out, to-wit, forty feet wide.

As a matter of law the defendants were put on notice by said written contract and said plat of Vernonview as to the width of said Union street, and therefore in the purchase of their lots they took title thereto subject to the use of plaintiff and the public in and to Union street as it is platted, to-wit, forty feet wide.

We hold the rule to be that where there is a recorded plat it is presumed in law to be correct, and thereby not only the correctness of the plat, but the width of streets and alleys, as shown thereon, are correct, and that purchasers of lots designated on such plat are bound to take notice of and respect the width of streets and alleys shown in such plat, and be governed thereby.

It follows from what we have already said that it is our judgment that the plaintiff is entitled to the relief prayed for in his petition.

Judgment for plaintiff, as prayed for, and injunction made . perpetual.

Shields and Patterson, JJ., concur.


text:
    CRIMINAL LAW — LARCENY
    [Clark (2nd) Court of Appeals,
    January 15, 1920.]
    Eerneding, Kunkle and Allread, JJ.

      William P. Burke v. State of Ohio.
    1. “Five Automobile Tires” Sufficiently Specific Description of Stolen Property Received.
    Under an indictment charging the receiving of stolen property, the description of the property is sufficiently specific when it is described as “five automobile tires.”
    2. Averment of Ownership in Carrier Sufficient in Receiving Stolen Property.
    The averment and proof of ownership in such a case is sufficiently definite when placed in the railway company in whose possession the property was at the time it was stolen, as distinguished from an allegation of ownership in the consignor or the director general of railroads at that time operating the road in question.
    3. Inference of Guilt Derived from Surrounding Circumstances.
    It is not error in such a case to instruct the jury in effect that a conviction may be based on an inference arising from circumstances surrounding the case.

      McGretv & Leybourne, for plaintiff in error.

      Thomas F. Hudson, Pros. Atty. and John W. Cole, for defendant in error.

       Motion to certify overruled by Supreme Court, April 6, 1920.

   ALLREAD, J.

The plaintiff in error was indicted and convicted of receiving stolen property.

The regularity of the conviction is challenged chiefly upon the following grounds: (1) insufficiency of the indictment; (2) insufficiéney of averment and proof as to ownership; and (3) error in charge.

The description of the stolen property in the indictment is “five automobile tires.”

The objection to the indictment was first made upon motion at the conclusion of the state’s evidence. It is also raised by motion in arrest of judgment. Counsel for plaintiff in error rely upon the case of Redmond v. State, 35 Ohio St. 81 in whieh it was held that a description of “ a certain lot of dry goods, ’ ’ is insufficient in an indictment. We think that case is not parallel. If the present indictment was of “a lot of automobile supplies” it would be more nearly parallel. In the opinion in the Redmond case the doctrine that a description of “one horse, one ox,” it is said would be good. This statement would apply to the present case. While the description here might have been made more definite by the addition of manufacturer’s marks, yet it was not necessary any more than additional description would be required in case of a horse or of an ox.

In the case of Goodall v. State, 22 Ohio St. 203, a description in an indictment of “one silver coffee pot, one silver tea pot,” and so forth, was held sufficient, although that question was not raised or discussed.

While the common law was strict on the question of description yet under the liberality of our statute the common law has been greatly modified. The lack of more extended description did not prejudice the plaintiff in error. The five automobile tires in controversy were in the possession of the plaintiff in error and there was no uncertainty in the evidence as to their identity. We think the indictment was sufficient. 25 Cyc., 75, 82.

There is also a question as to the averment and proof of ownership. The indictment contained the averment that the property was owned by the Cleveland C. C. & St. L. Ry. It is contended that it should have been averred that it was owned either by the Westeott Co., the consignors, or by the director general of the railroads of the United States. It appears that the property was stolen while in. the possession of the railway company. It was not necessary to aver ownership in the consignor. The railway company having lawful custody of the property for the purpose of transportation was the owner as against the parties charged with its larceny. Huling v. State, 17 Ohio St. 583:

Notwithstanding the control of the railway companies by the director general such companies are still in existence and have the right to own and hold property. The director general employed the railway companies as agents and instrumentalities in conducting the business. As between parties charged with larceny and the railway company operating under the director general, it would be sufficient to charge the ownership in the railway company. The court is not required to go behind the possession and lawful custody of property in a criminal action for larceny. See 25 Cyc., 89. Besides the indictment was sufficient as it charged the ownership in the. railway company. No real difficulty appears upon the face of the indictment and the question wonld arise upon the trial as to a variance. The See. 13582 G. G. relieves against any technicality in respect to variance where such variance is not prejudicial to the party accused. We think the trial court was justified in holding this defect, if it was a defect, non prejudicial.

The trial court charged the jury as to proof or actual knowledge, and added the following paragraphs.

“The guilty knowledge of the defendant r^pon this subject may have been inferred from the facts, or if at the time of receiving the property he knew of defects which in your judgment would impress an ordinary and reasonable man with the knowledge that the property had been stolen.
‘ ‘ If, therefore, you find the defendant received the property under circumstances such as would cause any man of ordinary observation, intelligence and caution, to know that it had been stolen, you would be authorized in finding a verdict of guilty, if the other elements of guilt have been established beyond a reasonable doubt.”

These charges as to the inference arising from circumstantial evidence is objected to by counsel for the plaintiff in error. It is claimed that only actual knowledge fulfills the statutory definition of the crime, and that the inference which a man of ordinary intelligence and caution would deduce from a given set of circumstances might not be sufficient to prove actual knowledge in this specific case.

We are unable to find any decisions in this state upon this precise question.

Counsel for plaintiff in error cite the case of Cohn v. People, 197 Ill., 482 [64 N. E. 306], We think this ease does not support his contention. The syllabus is as follows:

“Any instruction upon the subject of receiving stolen property is erroneous which tells the jury that absolute knowledge by the accused, or even belief, that the goods were stolen is not necessary if the evidence be sufficient to induce a person of ordinary observation to have such a belief. ’ ’

Charges similar to those given in the case at bar are approved in the case of Commonwealth v. Leonard, 140 Mass. 473 [4 N. E. 96; 54 Am. Rep. 485]; State v. DiBenedetto, 82 N. J. L., 168 [82 Atl. 521], affirmed, State v. DiBenedetto, 83 N. J. L. 792 [85 Atl. 1135]; 83 N. J. L., 792; Gassenheimer v. United States, 26 App. Cas. (D. C.), 432; 3 Blashfield, Instructions to Juries, 3815-3816.

There is some force in the claim of counsel for plaintiff in error that actual knowledge, which is prescribed by the statute creating the offense, is not answered by an inference to be drawn from circumstances by any person other than the accused himself; nevertheless we are of the opinion that the weight of authority sustains the charge as given to the jury.

We have considered the other assignments of error, but have reached the conclusion that there is no error prejudicial to the plaintiff in error and that the judgment should be affirmed.

Ferneding and Kunkle, J. J., concur.


author: WINCH, J.

text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Court of Appeals,
    March 26, 1914.]
    Winch, Meals and Grant, JJ.

      Koblitz Bros. Realty Co. v. John D. Rockefeller et al.
    Right of Forfeiture in Ninety-nine Year Lease for Failure to Erect New Building within Ten Years Upheld.
    An option to terminate a ninety-nine year lease at the end of the first ten year period, if in the meantime the old building has not been removed and a new one erected at a cost of $150,000, is not repugnant to a provision in a previous clause of the lease giving to the lessee, upon obtaining the consent of the lessor, the privilege of removing the old and erecting a new building at any time during the ninety-nine year period.

      F. G. Scott and W. W. Hole, for plaintiff in. error.

      Holden, Hasten, Duncan <£ Leckie, for defendants in error.

       Motion to certify overruled by Supreme Court, June 2, 1914.

   WINCH, J.

This is an action to enjoin the defendant from enforcing a forfeiture of a 99-year lease to certain premises in the city of Cleveland and from taking possesion of the demised premises.

The defendants claim forfeiture of the lease on several grounds, but only one of them need be examined and that is the failure of the plaintiff to erect a new building upon the premises within the first ten years of the term of the lease.

Upon this subject the parties, by the indenture of lease, covenanted as follows:

‘1 And it is further mutually agreed and understood between the said lessor and the said lessees that said lessees shall have and are hereby granted the right and privilege at any time they see fit to repair or remodel the building and improvements now upon said premises at their own expense, provided, however, that said changes, 'remodeling and improvements on said land shall not impair or lessen the present value of the buildings and improvements now thereon. And said lessees shall have and are hereby granted the right and privilege at any time they may see fit to remove or destroy the buildings and improvements now upon said premises, or any part thereof, but only on condition that said lessees will proceed without delay thereafter to erect in their place and stead and at their own expense a new building or buildings and improvements upon said premises, to cost not less than one hundred and fifty thousand dollars ($150,000). Provided, however, that said lessees shall not exercise such right without having first obtained the lessor’s consent in writing for the removal of said buildings or any part thereof, and furnishing and delivering to the said lessor a good and sufficient bond to said lessor’s satisfaction to secure the erection of a new building or buildings and improvements on said land to cost not less than one hundred and fifty thousand dollars ($150,000).
‘! But in case the lessees shall fail to erect a first class, modern building not less than eight stories in height upon said premises costing not less than one hundred and fifty thousand dollars by or before the expiration of said first period of ten years, i. e., by or before October 1st, 1913, it shall then be optional with the lessor to terminate this lease at that time by giving written notice to said lessees of his election so to do, or to continue the same in force without regard to the erection of such new buildings. If this lease shall be terminated by the election of said lessor on or before October 1st, 1913, on account of the failure of said lessees to erect new building and improvements upon said premises before said date at a cost of not less than $150,000 as aforesaid, then and in that event all the buildings and improvements upon said premises shall revert to and remain the property of the lessor without compensation therefor to said lessees.1 ’

It is conceded not only that the old buildings have not been torn down and new buildings erected, but that the ten-year period elapsed without the lessees requesting the lessor’s consent to the removal of the old buildings, without tender of any bond to secure the erection of new buildings and without any intention on the part of the lessees to construct new buildings during said ten-year period or thereafter, either conceived by the lessees or communicated to the lessor.

The lessees’ claim is that the lease is to be construed as granting the lessees the privilege of tearing down the old buildings and erecting new buildings at any time during the 99 years of the lease, but that it does not require them to do so and that the second paragraph quoted from the lease is repugnant to the first paragraph and can only be harmonized with the first paragraph by limiting its application to the contingency only that if, during the first ten years the lessees should elect to erect new buildings, should obtain the lessor’s consent to tear down the old buildings, upon giving bond as required, and then having torn down the old buildings should fail to erect new buildings within the first ten-year period, then the lessor might exercise the option reserved to terminate the lease.

This claim is hard to understand and difficult to express in words. It is so forced that recourse to plaintiff’s brief must be had to obtain any conception of it.

In said brief it is expressed as follows:

“It is clear that a clause allowing lessor (lessees) to build at his (their) option at any time during a period of 99 years is so entirely repugnant to a clause which requires him (them) to build within 10 years, on terms to be dictated by the lessor, that neither law nor equity will enforce a construction so detrimental to the rights of the lessee. ’ ’

In this sentence, as indicated, counsel confuse the words lessor and lessees, but the brief goes on to say:

“ While it is dear that the two clauses are too repugnant to allow a forfeiture, the claim of plaintiff is that they may be so construed as to fairly and equitably protect the rights of both the lessor and the lessees.
‘ ‘ The lease clearly gives the lessee a privilege to build, at his option as to time, but only on condition that before tearing down give bond to lessor’s satisfaction to proceed with the new buildings. Then follows the clause relied on by defendant, stating that if lessee fails to erect such building within ten years, the lessor may elect to terminate the lease.
“This clause may be entirely harmonized with the former clause, giving the option to build to lessee, if we simply interpolate the words, ‘after lessee has so elected to build and given bond therefor,’ immediately following the words ‘October 1, 1913.’
‘ ‘ This interpretation* is entirely reasonable and absolutely equitable in that it still gives the lessee the option to build as stated in the lease, and yet gives the lessor, in addition to the bond, a further security and a different remedy to be exercised at his option, during the first ten year period of said 99 year term.”

This insertion of words, the parties never though of adding to their contract, may be “entirely reasonable and absolutely equitable” in the minds of the lessees, but is it what the lessor intended when he drafted the lease and the lessees assented to when they accepted it as drafted ? If it is not, the court cannot make a new agreement for the parties, nor will it hold the two clauses of the lease repugnant and the forfeiture therefore unenforceable, unless they are clearly so.

It is not unusual for a lease to be made for a term of years, but to terminate sooner upon the option of either lessor or lessee either for cause or upon the mere will of the one for whom the option is reserved.

Contracts for employment are made in the same manner, with option to either party to terminate the employment upon giving notice. Contracts for sale or purchase of goods with delivery in installments are made with similar options.

It is, then, not unusual to reserve the right to terminate a contract upon notice and such right when contracted for by the parties, is uniformly enforced by the courts, unless circumstances have arisen before notice is given which should, in equity, prevent the assertion of the right.

The terms of the lease before the court for construction in this ease are not difficult to understand, are a valid and reasonable exercise of the right to contract, and must be construed with a view to effectuate the intention of the parties, if that can be gathered from them. As said by Judge Spear in a case involving the forfeiture of a 99-year lease, Rock v. Monarch Building Co., 87 Ohio St. 244, 252 [100 N. E. 887] :

‘ ‘ Courts are required, by the application of known rules of law, to enforce valid and reasonable contracts of parties, with the view of carrying out their clear intent, rather than, by resort to technical construction, to render such contracts void. ’ ’

In this case both parties agree that: ‘ ‘ The first part of this stipulation clearly gives the lessees the right and privilege to erect a new building or buildings, but does not obligate them to do so, unless they remove or destroy the old buildings. This privilege may be exercised by lessees at amy time they see fit, during the entire period of 99 years.”

Now ás to the second paragraph, the plaintiffs concede that if it stood alone it might be construed as a condition subsequent and so enforceable.

But it does stand alone and the evidence shows that it was drafted by the architect of the lessor and required to be inserted in the lease after the original draft of the lease, without it, had once been approved by the parties, but before signing.

Let us read the second paragraph again and see if it is a “valid and reasonable” provision to insert in a 99-year lease which contains a privilege to the lessee to tear down old buildings and erect new buildings at any time within the term, upon certain conditions:

“But in case the lessees shall fail to erect a first class, modern building not less than eight stories in height upon said premises costing not less than one hundred and fifty thousand dollars by or before the expiration of said first period of ten years, i. e., by or before October 1, 1913, it shall then be optional with the lessor to terminate this lease at that time by giving written notice to said lessees of his election so to do, or to continue the same in force without regard to erection of such new building. ’ ’

This seems clear enough to require no construction. It means what it says: if the lessees fail to erect a new building before October 1, 1913, the lessor may then terminate the lease.

The sentence opens with the word “but,” and much stress is put upon this by both parties, but the meaning of the word in this connection is simple enough. It means, “notwithstanding— yet;” “notwithstanding” I have given you the privilege to erect a new building on the premises at any time you may see fit during the 99 years, “yet,” if you don’t erect a new building during the first ten-year period, I reserve the right to terminate the lease.

This the lessor certainly had a right to do, and his reason for doing it is apparent. Having exacted no security for payment of rent, having made no requirement that new buildings must be erected, he was content to let this arrangement go for ten years, but as the buildings were then old (the evidence shows they were erected in the fifties of the last century), he thought it wise to have ten years in which to make up his mind whether the lease was a safe one to continue without the erection of new buildings on the premises as security for continued payment of rent during the next 89 years.

The ten years went by; the lessees paid no heed to this clause of the lease which was manifestly for the protection of the lessor ; he deemed it wise to exercise the option which the lease reserved to him and having plainly contracted for it, why should this right be denied him?

■ We hold, then, that the option to terminate the lease is valid and reasonable — not repugnant to the privilege granted in the first clause, any more than the further specification in the second clause that the new building shall be “ a first class, modern building not less than eight stories in height” is repugnant to the phrase “new building or buildings and improvements” used in the first clause. The second clause more fully describes the kind of building which the first clause authorizes to be built. That is perfectly proper. The two clauses should be read together and effect given to both. The rules of grammar do not determine the effect to be given to a contract; it is the intention of the parties that is to control. It is reasonable that this should be so, otherwise the school teacher and lawyer would have a monopoly of drawing contracts.

Having found the two clauses of the lease to be harmonious and reconcilable, valid and reasonable, it follows that the lessor had a right to exercise his option to terminate the lease and that the court cannot interfere with this right unless the lessor, by some act of his own prevented the lessees from complying with the condition subsequent, as it has been termed, or waived compliance therewith, or there has been some fraud, accident or mistake on account of which the court ought to relieve against the forfeiture.

There is nothing of the kind in this case, so far as the lessor is concerned. On the other hand, an examination of the record does not commend the conduct of the lessees to a court of equity. They admit they never intended to build and they did many things in an effort to circumvent the lessor in his right to terminate the lease.

Sixty days before October 1, 1913, notice in writing was served on the lessees that it was the intention of the owner of the premises “to take advantage of and exercise the option to terminate said lease on October 1,1913, as provided in the clause or said lease quoted above,” the clause quoted being the one in question.

Then the lessees got busy, not in an effort to obtain the lessor’s written consent to the erection of a new building and extension of time in which to complete it, but in the invention of traps and subterfuges in order to bewilder the lessor and prevent his exercising his option, through the interposition of technicalities.

The lease provided, among other things:

“All notices to be observed hereunder upon said lessees shall be served by leaving them at their offices upon said premises.”

The notice of intention to terminate the lease should have been served at such office, if they had one, upon the premises, but the lessees sublet the entire premises and never maintained any office there. They received the written sixty-day notice and then delayed until September 27, 1913, which was a Saturday and only three days before October 1, when they put of record an assignment of their lease to the Koblitz Bros. Realty Co., of which company the lessees owned all the stock except four qualifying shares held by members of their families, who served as directors of their realty company. They gave no notice of this assignment to the lessor.

The Koblitz Bros. Realty Co. also pretended to open an office “on the premises,” by arranging for the use of a table in a restaurant in the building when the table was not in use at meal times and hanging a cardboard sign with the name of the company on it on a clothes rack in the dining room and pasting a typewritten notice on a small piece of paper in a window of a restaurant over which hung a lace curtain. Of these steps they gave the lessor no notice, and so when the lessor, on September 29, 1913, gave his final written notice that he thereby elected to terminate the lease and requested that the premises be vacated by October 1st, he gave it to the original lessees and not to their assignee, the Koblitz Bros. Realty Co.

These facts are related to show that the plaintiffs do not by. their conduct commend themselves to a court of equity, which is interested in substantial claims and disregards technicalities, but their relation does not require a consideration of whether the notice to forfeit was regularly given, for plaintiffs concede that they had actual notice thereof and are bound thereby, and it is a rule that “after notice has been properly given by the landlord, it binds all who come into possession subsequently under the tenant. ’ ’

Captious objection is also made by the lessees to the fact that the notices of termination of the lease were given by an employee of the owner, not shown to be qualified to act so as to bind the owner. Such objection comes from the wrong side. The owner adopted the act of the employee and stands by it.

The conclusion is that defendants, were wholly within their rights in declaring the lease terminated and in taking possession of the demised premises on October 1, 1913, and that plaintiffs petition for an injunction must be dismissed.

Such results as this are sometimes reached with reluctance, where forfeitures are involved. It is one ®f the functions of a court of equity to relieve against forfeitures, but that is because forfeitures frequently result in hardships to the innocent or unfortunate. Plaintiffs are neither innocent nor unfortunate, nor is there any hardships here involved. The lessees brought themselves deliberately into their present situation by disregarding the plain terms of their lease; they never intended or desired to rebuild on the premises; they never invested any money in the property which they haven’t received back; what repairs they made have been fully repaid to them by sub-tenants and every year of the ten they were in possession of another man’s property, they made a handsome profit out of it. The record shows the rent reserved under the lease was $6,000, and the income of the lessees from the property was over $10,000; out of this they paid the rent, taxes, insurance and repairs and put a comfortable profit into their own pockets. Their gold mine has slipped from their grasp, but through no fault of the owner thereof.

The petition is dismissed and judgment is rendered for the defendants. What affirmative relief defendants ask we do not know, for it appears from the transcript that they filed an amended answer but it is not in the files. Whether said amended answer prays such relief as can be granted in this action and in this court, we were not advised on the argument, and that matter will be taken up when we come to the settlement of the journal entry.

Meals and Grant, JJ.