text:
    RIPARIAN RIGHTS.
    [Madison (2nd) Court of Appeals,
    March 2, 1915.]
    Allread, Ferneding and Kunkle, JJ.
    E. E. Limle and Andrew Rescher v. Willis Robison.
    1. Riparian Owners of Land on Banks of Nonnavigable Stream Have Title to Middle Thread of Low Water Stream.
    The title of adjoining owners of land which extends to certain fixed monuments upon opposite banks of a small nonnavigable stream and thence along such banks respectively, is carried in each proprietor to the middle thread of the stream at low water.
    2. Avulsion not Proven by Deposit of Gravel on One Bank and Washing Away on Opposite Bank of Nonnavigable Stream.
    Proof of the caving in and washing away of gravel deposits upon one bank of such stream and the sudden formation of a gravel bar upon the opposite bank at a point in the flood water channel toward which the current of the stream carried the washings is not sufficient proof of identity to establish a case of avulsion, and the gravel, therefore, belongs to the proprietor of the soil upon which it rests.
    [Syllabus by the court.]
    Error.

      1. N. Abernathy, for plaintiffs in error.

      McCloud & Lincoln and Rankin & Rankin, for defendant in error.
   ALLREAD, J.

The controversy in this case arises over the ownership of certain gravel taken from a bar in Deer Creek, a small nonnavigable stream.

Robison and Limle are adjoining owners of land, the boundaries of which respectively extend to certain fixed monuments on each bank of Deer Creek and thence along the banks of said stream.

These deeds under the established law of this state would earry the boundary line of each proprietor to the middle thread of the stream at low water. Lamb v. Rickets, 11 Ohio 311; Gravit v. Chambers, 3 Ohio 496; Niehaus v. Shepherd, 26 Ohio St. 40; June v. Purcell, 36 Ohio St. 396.

The question of boundary as presented by the evidence is fairly and correctly stated by counsel for plaintiff in error in the following paragraph of this brief:

“The water in this stream, therefore, when it was low constituted but a small channel but a few feet in width, between Limle’s bank and the gravel bar. To take that as the middle of the stream as the court finally instructed the jury, would necessarily give Robison all the gravel in this bar and the jury was so instructed to find.”

The instruction of the court to the jury both in the general charge and in the answers to questions of the jury was substantially to the effect that the center of the stream at the time the gravel was taken or at the time of the trial, was the boundary line and this, while not absolutely correct, was favorable to the plaintiff in error rather than, against him.

This brings us to the second and most important point of difference between counsel, namely the question of accretion and avulsion.

Upon this point the trial court charged the jury in substance that the gravel in controversy belonged to the landowner upon whose premises it was found. This was, as counsel for plaintiff in error contends, practically an instruction to return a verdict for the plaintiff below.

Was this instruction correct?

The testimony shows that prior to the great flood of March, 1913, there was a gravel bank of considerable proportion on the lands of Limle and that after the flood a portion of Limle’s gravel bank was washed away by the flood and that after the flood had subsided, the gravel bar in controversy was found “beyond the low water channel of the stream and nearly opposite the Limle gravel bank.

The evidence also shows that there were various other gravel deposits in the banks and channel of Deer Creek above the bar in controversy which-were washed out to some extent in the same flood. The testimony of Limle is to the effect that h.e saw some of the bank on his property cave into the stream ■during the flood and carried by the action of the water in the direction of this bar.

Controversies growing out of the shifting of earth by the action of the waters in running streams have given rise to the doctrines of accretion and avulsion.

In cases of accretion owing to the difficulty of tracing the original source, the law awards it to the owner of the land to which it becomes attached, while in cases of avulsion, the original owner still holds the title.

Accretion is said to be the deposit by gradual and imperceptible process, while avulsion involves the transfer of a considerable quantity of earth beyond or over the channel of the stream.

Accretion is the usual and ordinary case of the shifting of earth by the action of the waters and avulsion is of a somewhat extraordinary nature.

Avulsion may exist first where the stream changes its course, and second, where a considerable quantity of earth is carried en masse across the channel and attached to the opposite shore.

As applied to the second class, we may adopt the following definition:

“Avulsion is the removal of a considerable quantity of earth from the land of one proprietor and its deposit upon or annexation to the land of another suddenly and by the preceptible action of the water.” 40 Cyc. 625.

To this definition may be added the following from the syllabus in the case of State v. Pulp Co. 119 Tenn. 47, 53 [104 S. W. Rep. 437].

“Where the change of the channel of a river is made suddenly- and violently and is visible and tbe effect is certain, it is said to be by avulsion.”

In Coulthard v. Davis, 101 Iowa 625 [70 N. W. Rep. 716], it is held:

“Land detached from one side of a river by sudden change, in the channel and left connected with land on the other side in such manner as to be capable of identification, is not accretion.”

In the latter case the strip of land carried across the channel was a mile or more in width holding trees varying in size up to two feet in diameter.

The question of identification must necessarily play an important part in applying the doctrine of avulsion. For without identification, there can be no avulsion in a legel sense.

This feature is fully discussed in the celebrated case of Nebraska v. Iowa, 143 U. S. 359 [12 Sup. Ct. Rep. 396; 36 L. Ed. 186], in the opinion of Mr. Justice Brewer on page 369. In the course of the opinion in respect to the shifting of the banks of the Missouri river by flood waters, it is said:

“That while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or anything like an instantaneous and visible creation of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is, except in such eases of avulsion as may be noticed hereafter, in all matter of increase of bank, always a mere gradual and imperceptible process. There is -no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. „ There is, no matter how rapid the process of subtraction or addition, no detachment of earth from the one side and deposit of the same upon the other.”

The process so described was held to be accretion and not avulsion. See also Willey v. Lewis, 11 Dec. Re. 607 (28 Bull. 104).

In the case at bar it is conceded on page 10 of the brief of counsel for plaintiff in error that there was no change of the course of the stream. To make out a case of avulsion, therefore, it was necessary to show not only the sudden disappearance of the Limle bank, but that it was carried en masse and in a visible manner to the opposite bank. This the evidence does not establish.

There is, of course, a probability that when Limle's gravel bank fell into the flood waters of Deer Creek, a portion of it may have found lodgment on the gravel bar in controversy. But that is purely speculative. It is also probable that Limle’s gravel, or at least a portion of it, may have been carried by the waters to other points and deposited. And it is also probable that other gravel may have found lodgment on the gravel bar in controversy and that the gravel bar instead of being composed exclusively of Limle’s gravel was in fact a commingling of the washings of this stream from various sources, the identity of which can not be legally established.

The case, therefore, falls within the principle of accretion and the trial court was justified in determining as a matter of law that the gravel belonged to the owner of the land to which it had become attached when the waters had subsided.

There is complaint as to the charge of the court upon the question of burden of proof, but this was not material in view of the fact that the verdict and judgment under the law as we interpret it, is in accord with the practically undisputed facts of the case.

Finding no error, the judgment of the court of common pleas is affirmed.

Ferneding and Ktinkle, JJ., concur.


source: Caselaw Access Project

author: ALLREAD, J.

license: Public Domain

text:
    ADVANCEMENT — ESTOPPEL.
    [Clark (2nd) Court of Appeals,
    December 5, 1914.]
    Allread, Ferneding and Kunkle, JJ.
    Ralph N. Stewart and Charles Nicholson v. Margaret Yeazell et al.
    Heirs of Grantee in Deed Estopped to Deny Stipulations therein Respecting Consideration by Advancement.
    Heirs of the grantee in a deed of conveyance between brothers,, purporting upon the face thereof to be in the nature of an-advancement, who upon the death of the grantor are in possession and continue thereafter to hold possession under the deed are estopped to deny the validity of the stipulation of said deed in respect to advancements.
    [Syllabus by the court.]
    Appeal.

      Chase Stewart, Bowman <& Bowman, for plaintiffs.

      McMahon & McMahon, for defendants.
   ALLREAD, J.

This cause was originally one for the partition of the lands; of which Nathan Nicholson died seized.

The final issue for determination relates to the interest of Nathan R. Nicholson and Maud N. Gest, children of Lemuel Nicholson, deceased.

Nathan Nicholson died intestate seized of the real estate-sought to be partitioned, leaving brothers and sisters and their-representatives as next of kin.

Nathan R, Nicholson and Maud N. Gest, as representatives, of Lemuel Nicholson took by descent the legal- title to one-eighth part thereof, unless such right is barred or defeated by the undisputed facts stated in the amended petition and the answer to which the demurrer is interposed.

The undisputed facts in brief are: that on or about January 10, 1911, Nathan Nicholson conveyed to Lemuel Nicholson by deed, a tract of one hundred and ninety-nine and one-half acres of the value of over $20,000 for a money consideration of $5,000, containing the following recitals in the consideration clause:

“In the consideration of the sum of $5,000 and other good and valuable considerations” and also the following in a subsequent part of the deed:
“As to the excess in value of said lands over $5,000, this conveyance is in the nature of an advancement to my brother Lemuel and is in full of his share of my estate.”

The undisputed facts are that Lemuel paid the consideration of $5,000 expressed in the deed and took and held possession of said real estate until his death, when the real estate passed by inheritance to his children Nathan R. Nicholson and Maud N. Gest; who took and still hold possession thereof, and that the excess in value above $5,000 of the land conveyed exceeds the value of the interest which but for said deed would have descended to said Nathan R. Nicholson and Maud N. Gest in the property of said Nathan Nicholson.

It is contended by defendants Nathan R. Nicholson and Maud N. Gest that under authority of Needles v. Needles, 7 Ohio St. 432 [70 Am. Dec. 85], the recital contained in the deed to Lemuel in respect to the advancement and the release of Lemuel’s possibility in his brother’s estate is void.

Upon the contrary, counsel for plaintiffs attack the authority of Needles v. Needles and also assert the doctrine of equi-. table estoppel.

The doctrine of Needles v. Needles, at least as expressed in the syllabus, has been followed by the Supreme Court in the following cases: Hart v. Gregg, 32 Ohio St. 502; Smith v. Smith, 57 Ohio St. 27, 34 [48 N. E. Rep. 28] ; Gilpin v. Williams, 25 Ohio St. 283; Dungan v. Kline, 81 Ohio St. 371 [90 N. E. Rep. 938] ; Carter v. Grossnickle, 22 Dec. 680 (11 N. S. 465); Grossnickle v. Carter, affirmed, no op., 88 Ohio St. 577.

The doctrine of the Needles case is therefore established as abstract law governing the validity of attempted conveyances of expectancies or possibilities of inheritance.

But we think it is equally clear that considerations of equity may readily overcome the abstract legal doctrine and justify a court of equity in the enforcement of the contract or conveyance.

Notwithstanding the broad expressions in the opinion in the case of Needles v. Needles, supra, we find a recognition of this equitable dectrine. Bartley, J., in the Needles case, in referring to certain other cases, holding a contract between children concerning the possibility of inheritance, founded upon valuable considerations to be valid, makes the following observations:

“Where two of the children contract with each other in regard to their expectancy from their ancestor, they stand upon equal footing, and although such contract can not operate by way of assignment or release, yet where a valuable consideration has been paid, it may operate by way of estoppel, or be enforced in equity.”

The generally accepted doctrine that a general warranty deed by an heir of his expectancy operates by way of estoppel is a familiar application of the availability of equitable defenses.

In Rosenthal v. Mayhugh, 33 Ohio St. 155, Johnson, Chief Judge, in reviewing the Needles case makes the following observation, which is of peculiar importance:

“That case, so far as it bears on this, merely holds that, at common law, the mere expectancy or chance of succeeding to an estate is not the subject of release or assignment, but, as the opinion shows, may be upheld in equity.”

This court held in an unreported case, (Slyder v. Karn in the court of appeals of Darke county) that a defense of equitable estoppel might be made out by parole evidence to validate a conveyance by the issue in tail of his expectancy during the life of the donee.

This brings us to a consideration of the sufficiency of the undisputed facts to move a court of equity to validate and enforce the recital of the deed.

It may be conceded that advancements were unknown to the common or statutory law of this state as between collateral kindred.

We are not called upon, however, to extend the doctrine of advancements in a technical sense.

We have here a recital amounting to a contract, the language of which is to be construed. Can there be any doubt that by the use of the word “advancement” in this recital, that the parties intended to extend. the doctrine of advancements to the existing case by stipulation? We think it is unquestionable that the parties to the deed to Lemuel intended that the excess of value above $5,000 in the real estate conveyed should be brought in and considered in the distribution of the grantor’s estate upon the principle of advancement.

Such a provision in a case between parent and child would undoubtedly be enforced, and we see no reason why it would not be equitable to enforce a stipulation of this kind against the grantee or his representatives who are in possession of the property conveyed, at the time of the decease of the grantor.

It would certainly be an equitable duty on the part of the representatives of Lemuel, upon the death of their grantor, to bring in the value of their so-called advancement for consideration in the distribution of the grantor’s estate. To hold the advancement and repudiate the stipulation which formed part of the consideration of the conveyance, would be unequitable and unjust.

By retaining the advancement after the inheritance from the grantor became available in such an equitable circumstance as would move a court of equity to give validity to the original recital or stipulation, and would constitute an equitable foundation for estoppel.

There is no authority in this state except perhaps some obiter in the Needles case, that reflects upon the soundness of this view, and we are attracted by the justice and reason of the following cases: Kershaw v. Kershaw, 102 Ill. 337; Kinyon v. Kinyon, 6 Misc. Rep. 584 [27 N. Y. Supp. 627].

We therefore hold that Nathan R. Nicholson and Maud N. Gest, under the principle of equitable estoppel, are barred from their interest in the real estate of which Nathan Nicholson died .seized.

Decree accordingly.

Ferneding and Kunkle, JJ., concur.


text:
    GAMING AND GAMBLING.
    [Franklin (2nd) Court of Appeals,
    December, 1914.]
    Allread, Ferneding and Kunkle, JX
    Otis & Hough v. Joseph Eylar Thompson, Prochein Ami.

      1. Purchases of Extensive Blocks of Stock with Small Deposits Paid thereon and Inferences of Inability to Complete Payment Competent to Rebut Form of Sale and Establish Sale on Margins.
    In an action to recover money lost upon marginal or wagering transactions in stocks it is competent to show that back of tbe form of purchase a mutual intention existed between the parties, not to complete the transaction by payment for and delivery of the stock, but to rest merely upon payment of margins and to speculate upon the rise and fall of the market values thereof; such intention is established by proof that the transaction involved the extensive purchase of stocks exceeding in value $200,000, of which no delivery was made and upon which only small deposits were made, and inferences of the purchaser’s financial inability to complete the purchases by pledging other stocks and family checks to keep up margins during a fall in the market.
    2. Interrogatories not Calling for Ultimate Facts Refusable.
    Interrogatories calling for facts simply evidential and not ultimate and controlling are properly refused.
    Error.

      W. O. Henderson, Karl E. Burr and Thomas Kirby, for plaintiff in error.

      E. G. Lloyd, John G. Shea and John Eylar, for defendant in error.
   ALLREAD, J.

The original action in the court of common pleas was brought by Joseph Eylar Thompson by next friend to recover money 'lost by Margaret Eylar upon marginal or wagering transactions in stocks.

Upon trial the plaintiff recovered a verdict and judgment for $2500.

The case is in this court upon petition in error.

The counsel for plaintiff in error very earnestly contend that all the transactions involved are legitimate and that there is no basis in the evidence for a recovery. The material evidence offered by the plantiff consists of the testimony of Margaret Eylar as to the nature of the transactions together with certain books, checks, receipts, letters, etc., connected with and forming parts of the various transactions.

The plaintiff, as part of his case in chief, also called as a witness Frank L. Griffith, manager of the Columbus branch of the defendant’s business, to identify certain documents. Upon cross-examination, Griffith testified in substance that all the transactions with Mrs. Eylar were bona fide purchases and sales of stock.

At the conclusion of plaintiff’s testimony the defendant moved for a nonsuit. This was overruled.

The defendant thereupon offered the testimony of Frank L. Griffith in detail as to the transactions together with various records and documents connected with and forming part thereof. There was also other evidence which need not be alluded to in detail.

Upon the conclusion of all the evidence the motion of the defendant for a nonsuit was renewed again and overruled.

The testimony of Mr. Griffith in connection with the books and bills of purchase and sales tends to show that the transactions were regular and legitimate purchases and sales of stock. And if that were the only evidence to be considered, it would be quite clear that no liability should be sustained.

It is, however clearly established by adjudications in this state and sustained by manifest public policy that the mere form of the transaction is not conclusive. Kahn v. Walton, 46 Ohio St. 195, 204 [20 N. E. Rep. 203] ; Lester v. Buel, 49 Ohio St. 240 [30 N. E. Rep. 821; 34 Am. St. Rep. 556].

It is therefore competent to show that back of the form in which the transaction is cloaked, there existed a mutual intention of the parties not to complete the transaction by payment and delivery of the stock, but to rest merely upon the payment of margins and thereby speculate upon the rise and fall of the market values.

Margaret Eylar testified that in all the transactions (except in four instances when she actually received the stock) her .intention was to deal in margins only.

'The evidence of Mrs. Eylar was, therefore, sufficient to raise an issue as to her intention. It is insisted, however, that there was a total failure to prove that such intention was mutual or even that Otis and Hough knew of Mrs. Eylar’s purpose or consented thereto.

It may be conceded that it was a necessary part of the plaintiff’s case to prove a mutual intention of both parties to deal in margins only, and not to complete the transaction by the final delivery of the stocks. It is, therefore, quite important to determine whether there was sufficient evidence, either direct or circumstantial, to justify the- submission of the case to the jury.

There were two small transactions on “short sales” but as These involved small amounts and could not sustain the entire .judgment, they may be ignored for their evidential value upon other transactions.

We, therefore, revert to the main and important question in the case, whether there is sufficient evidence tending to show that Otis and Hough intended that these transactions should be upon margins only and not be completed by the final delivery of. the stock.

The circumstances that in four instances representing about forty shares, stock was actually delivered, tends to support the testimony of Mr. Griffith.

Against this circumstance, however, is the long list of Transactions involving something over 4,000 shares of stock of different corporations of a purchase value of something over $200,000, which appears to have been bought and sold without actual delivery of the stock and upon small cash deposits or payments in a manner somewhat similar to the usual and ordinary ease of marginal dealings. To these circumstances may be added the testimony of Mrs. Eylar of the character of the transactions and the fact that Mr. Griffith spoke of these .cash payments'as margins and called upon her when the stock-market “slumped” for more money to keep up the margins!. The financial situation of Mrs. Eylar is a circumstance tending to corroborate her testimony and to repel the idea that she intended to complete these extensive purchases of stock and we think it was an inference capable of being drawn by the jury that the representatives of Otis and Hough after having dealt with her for a considerable time knew more or less of her financial affairs. It is also an inference capable of being drawn from the testimony that she was in financial distress when she reluctantly put up her Missouri Pacific stock to make her account with Otis and Hough good, and also that she was again in financial distress when she put up the two $500 cheeks of her-uncle, Judge Eylar, to protect her account. The known difficulty and distress of Mrs. Eylar in keeping up margins might justify an inference that Otis and Hough knew of her inability to complete the purchases. The letters of Otis and Hough in respect to her account, the general receipt of money from time to time generally upon her account and the deposit of Judge Eylar’s checks “to be used only when account requires it” are so consistent with and tend to corroborate the testimony of MrsEylar as to the character of the transactions. We, therefore, hold' that there was sufficient evidence tending to show that these: transactions were not legitimate sales, to justify the case being submitted to the jury.

It is contended that the trial court erred in refusing to give certain charges requested before argument.

We find, however, that the court gave certain special charges requested by the defendant and refused others. Those given sufficiently covered the elements of the case involved in' all the charges and it would not have been proper for the coui’t to have repeated the same propositions. The court was justified in refusing the other charges for this reason alone.

It is specially urged that special request No. 1 in respect to stocks purchased before the period of recovery under the statute of limitations was improperly refused. We think that this request was not strictly correct and that if it had been given, it would have entirely eliminated consideration of the loss of the Missouri Pacific stocks which while purchased before the period allowed for recovery, were deposited during that period to make good Mrs. Eylar’s account and were lost. The law upon this subject was correctly and fully given in special request No. 5, and authorized a recovery of the value of the Missouri Pacific stock if actually put up and lost during the period of which recovery was allowed.

Special objection is also made to the following language in the general charge:

“But such a contract is only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price to be paid by the buyer.”

It is contended that this was at least misleading, if not improper, because it prescribed an unnecessary burden as to the validity of the contract. While these references might have been more fortunately expressed, we are of opinion that under the entire charge the jury could not have been misled. The special charges before argument and the scope of the general charge clarified these expressions and made the court’s charge sufficiently definite.

The defendant requested the submission of the following interrogatories to the jury:

“1. Did Charles A. Otis and Addison Hough in any of the transactions had between them and Margaret A. Eylar gain any profit thereby other than their brokerage commission and interest on deferred payments.
“2. In the event that special finding No. 1 is ‘yes’ then state in what transactions, at what times and in what amounts such profits were gained.”
It is mandatory upon a trial court to submit, when requested, interrogatories the answers to which will establish ultimate and determinative facts, but not such as are only of a probative character. Gale v. Priddy, 66 Ohio St. 400 [64 N. E. Rep. 437].

We think the facts called for by those interrogatories were simply evidential and not ultimate and controlling. The interrogatories were, therefore, properly refused.

This case is no doubt an important one, particularly to the defendant. But under the statutes of our state and the decisions of our Supreme Court as to the nature and character of the proof, we have reached the conclusion that the evidence as to these particular transactions was of such a character as to justify the submission of the case to the jury and that the evidence depends largely upon the credibility of the witnesses and the weight thereto is not so manifestly contrary to the verdict and judgment as to justify a reviewing court in disturbing them.

Finding, therefore, no prejudicial error in the record, the judgment is affirmed.

Ferneding and Kunkle, JJ., concur.


author: JONES, O. B., J.

text:
    BROKERS — CUSTOM OR USAGE.
    [Hamilton (1st) Court of Appeals,
    June 21, 1913.]
    Swing, Jones and Jones, JJ.
    Metropolitan Bank & Tr. Co. v. Newcomb & Jenkins.
    Custom with Reference to Brokers' Commissions on Realty Sales not Binding on One without Knowledge of Practice.
    A custom of a locality with reference to commissions for leasing property is not binding on a property owner who has no knowledge of such custom; hence, an action does not lie for recovery of such commission where it is not based on a contract, expressed or implied.
    [Syllabus approved by the court.]
    Error.

      Bode & LeBlond, for plaintiff in error.

      G. J. McDiarmid, for defendants in error.
   JONES, O. B., J.

The action below was brought to recover a real estate commission for the securing of a lease on rooms used by a Chinese restaurant. The evidence shows that one of the members of the firm of real estate agents made the acquaintance of two China-men who were seeking quarters for a high-class restaurant in • Cincinnati and proceeded to try to find suitable quarters. Noticing that tbe rooms above defendant’s bank were, unoccupied, inquiry was made of tbe cashier of the bank .as to whether they were for rent and the terms. The agent introduced himself to the cashier by handing him the card of his firm, showing they were real estate agents.

There is no testimony in the record to show that at any time any conversation was had between plaintiffs and defendants indicating that a commission was to be charged the bank for the securing of a tenant for it, and the attitude of the plaintiff throughout the transaction appeared to be as representatives of the lessee. The lease was finally consummated, and plaintiffs seek to collect the commissions fixed by the rule of the real estate exchange of which they are members, claiming that the rule of the real estate exchange has created a custom of the locality, upon which they are entitled to rely.

The record shows that this custom was not known to Mr. Morrison, who represented tbe bank, nor was it brought home to any officers of the bank during any of the negotiations. Objections were made to the introduction of proof as to the custom, unless knowledge was shown by the defendant of its existence. We are of the opinion that it was error in the court below to allow such evidence to be introduced, there being no evidence sufficient to establish an implied contract between the parties.

There is no question but that plaintiff did represent the lessees: and that being the ease, if they assumed to represent— as they claim in this suit they did — the lessor, then, it was error in the trial court to refuse the special charge which was asked by defendant before submission to the jury, which was as follows :

“A real estate broker who assumes to act for both parties can not recover compensation from either party, even on an express promise, until it is clearly shown that each party had full knowledge of all the circumstances connected with his employment by the other which would naturally affect his action and had assented to his double employment.”

See cases of Bell v. McConnell, 37 Ohio St. 396 [41 Am. Rep. 528] ; Capener v. Hogan, 40 Ohio St. 203.

Plaintiffs, however, rely upon a contract with defendant. The record fails to show that any contract was entered into by plaintiff with defendant, either express or implied. A motion was made by defendant at the close of all the evidence for an instructed verdict in its favor, and this court is of the opinion that it was error in the court below to refuse said motion.

The court therefore is of opinion that the judgment below should be reversed, and that judgment should be entered here for plaintiff in error.

Swing and Jones, E. H., JJ., concur.


text:
    DIVORCE AND ALIMONY — PARENT AND CHILD.
    [Hamilton (1st) Court of Appeals,
    April 12, 1913.]
    Swing, Jones and Jones, JJ.
    (Swing, J., not sitting.)
    Emil Gebert v. Joseph Howard.
    Second Husband of Divorcee Denied Claim Against First Husband for Additional Amount for Support of Child by Former Husband Who Has Contributed Thereto.
    Where a divorced woman remarries, and her first husband contributes to the support of her son who remains in her custody, the second husband can not, after a lapse of five years or more, maintain an action against the first husband on a claim then for the first time asserted for a balance due for the boy’s maintenance.
    [Syllabus by the court.]
    Error.

      M. C. Lykins, for plaintiff in error.

      H. H. Hosbrook, for defendant in error.
   JONES, O. B., J.

Plaintiff married the divorced wife of defendant, who was the mother of defendant’s son then about eleven years of age. The boy was brought by his mother into the household of plaintiff and became a member of his family. Under successive arrangements between the boy’s mother and the defendant weekly sums were paid to her by defendant for the maintenance of the boy, being first at the rate of two dollars per week for a period of 86 weeks; then four dollars per week for 88 weeks, and then five dollars per week for the remainder of the time. When these sums were received by the mother she turned them over to the stepfather, plaintiff herein, who admits that he knew she was receiving them from the boy’s father, defendant herein, but denies that he knew the terms of any contract or contracts for same made with him by the mother.

Plaintiff, however, made no objection to defendant as to the amounts that were being paid by him, and appears to have made no demand for any additional payment until the bringing of this suit, in which he claims for the full period from June 27, 1906, the date of his marriage, to January 6, 1911, at the rate of $4.50 per week for board and clothing furnished the boy and allowed a credit for the total amount paid of $820 — claiming a balance of $246.50.

There is no evidence that the amount claimed was the value of the necessary board and. clothing or that the father had failed to supply same.

Under the facts shown by the evidence, it is a question whether plaintiff has not placed himself in loco parentis with relation to the boy, and whether he could make a claim against the boy’s father for maintenance after it had been furnished without any arrangement or contract with him, and without showing demand upon him to furnish such necessaries and failure on his part to do so. But the continued receipt by plaintiff, without objection, of the weekly payments as made by defendant to the mother, leads to the belief that he must have been informed of the contract with the mother and assented to it, or if not fully informed that he must have been satisfied at the time with the amounts paid.

The court below instructed a verdict for defendant. On consideration of the testimony set out in the bill of exceptions and the record of the case below the court finds no error to the prejudice of plaintiff and the judgment is affirmed.

■Jones, E. H., concurs.


author: GRANT, J.

text:
    AUTOMOBILES — NEGLIGENCE.
    [Richland (5th) Court of Appeals,
    February, 1915.]
    Shields, Powell and Grant, JJ.
    (Grant, J., of the eighth district, sitting by designation, instead of Yoorhees, J., of the fifth district.)
    Lovina Odenbaugh v. Herman E. Homberger.
    1. Verdict Based on Adoption of One of Two Diverse Theories of Cause of Action not Disturbed on Review.
    An action founded upon injuries resulting from a collision between an automobile and a hack in which plaintiff was a passenger, the passenger asserting that the automobile ran into the hack, the owner of the automobile contending that the -hack ran into the automobile, is based upon two diverse theories, neither obscure nor confusing, the determination of which is exclusively the function of a jury, and evidence having been offered, tending to support with considerable plausibility both theories and in the absence of clear perversion of duty by the jury, its adoption of either theory in finding.a verdict will not be disturbed on review.
    2. Negligence of Driver Imputed to Passenger In Hack.
    Negligence of a hack driver is imputed to a passenger where the latter had unobstructed view and full opportunity to direct his course; hence, the hack driver having cut across a street from the right to the left side at an intersection, thereby colliding with an automobile coming at right angles on the intersecting street and driven on the right side thereof and at proper speed, all of which was in full view and knowledge of his passenger, the negligence if any is imputed to the passenger.
    3. Contributory Negligence Alternative Issue Provable by Negative Evidence.
    The alternative issue of contributory negligence in an action for collision between a hack and automobile, both parties asserting the negligence of the other in causing the injuries, is established by negative evidence that the hack was driven- on the wrong side at a street intersection in disobedience of a municipal ordinance and well known law of the road and in a manner not to be anticipated by the driver of the automobile on the right side of the road and operated at low speed; and an instruction upon such issue is not prejudicial to plaintiff.
    [Syllabus approved by the court.]
    Error.

      Brucker, Yoegele <& Henkel, for plaintiff in error.

      McBride & Wolfe, for defendant in error.

      Cited and commented upon by the following authorities: Perlstein v. Express Co. 177 Mass. 530 [59 N. E. Rep. 194; 52 L. R. A. 959]; Jones v. Andover, 92 Mass. (10 Allen) 18, 20; Angelí v. Lewis, 20 R. I. 391 [39 Atl. Rep. 521; 78 Am. St. Rep. 881] ; Elliott, Rds. and Str. Sec. 620; Reed v. Martin, 160 Mich. 253 [125 N. W. Rep. 61] ; Minneapolis St. Ry. v. Odegaard, 182 Fed. Rep. 56 [104 C. C. A. 496] ; New York Transp. Co. v. Garside, 157 Fed. Rep. 521 [85 C. C. A. 285]; Pluckwell v. Wilson, 5 Car. & P. 379; Chaplain v. Eawes, 3 Car. & P. 445
   GRANT, J.

This is a petition in error, the prayer of which is for the reversal of the judgment of the court of common pleas.

'Two principal grounds of error are pssigned and argued why this should be done.

The first of tiñese is that the judgment complained1 of is against the weight of the evidence in the case.

The second is that the court below erred in the charge given to the jury upon the question of contributory negligence, and in giving instructions upon that question at all.

The petition in the case below alleged that the plaintiff suffered certain bodily injuries caused, proximately and directly, by the culpable negligence of the defendant. This alleged negligence took the form, it was said, of the automobile of the defendant, carelessly managed and driven, running into a hack in which the plaintiff was at the time being lawfully carried, on the public streets of Mansfield.

The answer denied, generally, and further alleged as an alternative defense — all the while denying negligence on his own part — that the plaintiff came to her injuries through, and as the proximate result of her own negligence, contributing directly to them.

Upon the latter charge issue was joined by reply and upon the whole issue thus made up the cause was put to trial before a jury.

There was a verdict for the defendant, upon which the judgment attacked here was entered, a motion for a new trial having been denied.

All the testimony taken in the case, embodied in a bill of exceptions, is brought before us on the record.

The plaintiff had a theory of the ease, and upon that theory the action on her part was tried. It was that the defendant ran into the hack in which she was riding.

The defendant had a theory of the case, and upon that theory the action was tried on his part. It was that the hack in which the plaintiff was riding ran into the automobile in which he was riding.

Somewhat inartifieially stated, perhaps, but still in substantial accordance with the facts, this is the case before us as disclosed by the record here. And to these two, rather plain and easily understood claims the evidence was addressed, by each side.

It is not to be expected that either side will concede that the theory of the other side is the correct theory. It all depends on the point of view. When Sidney Smith saw two women violently abusing each other in London; from upstairs windows on opposite sides of the street, the witty parson remarked : „ “ They never will agree. They are arguing from different premises.”

So this case was tried. There was evidence, the tendency of which, if it was believed, was to support either of the two contentions, not without considerable plausibility. The theories were not at all obscure. The jury could not have been confused in regard to them, nor as to which of them the evidence in support of either was directed. It was a plain case, from either view point, accordingly as one looked at the not much disputed main facts brought out. It was a matter of running into, or being run into. Each side accused the other of being in the active voice and at the same time protesting that it was itself in the passive voice.

To pass upon such an issue as this, is the peculiar and undoubted function of a jury. It is difficult to think of a ease in which it could be more so. The question was mainly one of fact and the jury’s duty was to resolve it as they found the fact to be. To do this they had to adopt one theory or the other, according as in their estimation the facts preponderated, and to declare their finding in a verdict, if they did not doubt the law to which, as instructed by the court, they were to apply the evidence.

This they did, and upon the plainest principle of the law which sets up the landmark between what is the work of a jury in giving effect to facts and what is the province of the court in declaring the law of a ease, their finding is not to be disturbed except upon a clear perversion of duty on the part of the former. That the jury believed the evidence advanced to support one theory of the case rather then the other, even if the latter should appear to a court of review to be the more plausible of the two — which in this case we are not saying — this would not justify the reviewing court in undoing the work which the law has set for the jury and not itself to do, exclusively. To thus interfere with the undisputed function of the triers of fact would be mere usurpation.

In the case before us the jury evidently believed the ' evidence put forward by the defendant and gave effect to it by finding for him. This they had a right to do. We do not conceive that we have a right, in the estate of this record, to impose a view upon the jury — if we had such a view — which would be destructive of that right — no overpowering or control- ' ling consideration of substantial justice to the contrary of the verdict appearing.

It is argued that if we allow the verdict to stand we shall thus be imputing the negligence of the hack-driver to the plaintiff, his passenger.

To be persuasive this argument must concede the negligence of the driver and so far it supports the contention of the defendant that the plaintiff has sued the wrong person.

Having made her selection of defendants, she must abide by the consequences flowing from the choice. One of these is, we think, that a jury might think the driver much to blame in the way he carried a passenger for whose presence with him the defendant clearly was not at fault. There is a North of England proverb that “if you ship with the devil, ' you must sail with him.” It seems to us to be good law, although not found in the books in just that form.

We conclude upon this branch of the case that the verdict and consequent judgment are not obnoxious to the complaint that either is against the clear weight of the evidence.

In support of the other contention that no instruction in respect of contributory negligence should have been given in charge to the jury, reliance is placed on the rule laid down in Branch, Instr. to Juries Sec. 83. The pertinency of the rule proceeds upon the assumption that although the alternative defense of contributory negligence was pleaded in the answer, there was no evidence brought forward to prove .it, so that the issue was no longer in the case. Under such circumstances, it is maintained that to charge at all on the subject is worse than useless, in that the tendency of a charge will be to confuse and mislead the jury away from the issues that are in the case.

Of course if there was absolutely no evidence addressed to this alternative issue, the argument would have force, provided the effect could be said to be prejudicial to the complaining party.

We are not so sure as counsel are that there is the absence of all evidence whatever in this record that could be brought to bear upon the claim of contributory negligence charged upon the plaintiff by the answer in the case.

Evidence should not be ignored merely because it is negative evidence. Here the plaintiff was in a vehicle the window of which was open. It was not dark. The driver undertook to cut the comer bounded by two intersecting streets. He was to the left of the middle of each street, in disobedience both of the role of the road and of the ordinances of the city of Mansfield, produced in evidence. The automobile with which he came in collision was on the side of the street where it had a right to be — the right hand side.

Its right hand front wheel was within a foot of the curb and had actually dropped into the spillway located at that point. It was going at a speed not much, if any, in excess of the gait of a man on foot. The horses pulling the hack were being urged across the street diagonally from left to right, at a trot or slow gallop. There was testimony in the case tending to prove all these things. And for aught that appears all this was visible at the moment to the plaintiff, the line of vision being open and unobstructed and practicable.

If this was so, and she saw her driver — the driver of her selection and for the time being her servant — disobeying the ordinance and the well known rule of the road, and being where he should not have been, and the danger impending, then it became her duty to attempt at least to restrain her servant by outcry or command laid upon him, and her not doing so may have amounted to negligence on her part. If it was such, then this line of evidence, although negative in form, was fit to be considered by the jury in coming to a verdict. From the drift of the instruction given in this respect, we rather think that this was the view of the trial judge and that this controlled him in his action in that respect. We are inclined to think also that the charge in this respect given was thought by him to be a proper safeguard for the plaintiff against the jury by possibility inferring more than they should infer to her disadvantage from the purely negative circumstances that we have mentioned. We think so, because this part of the instructions given seems extremely solicitous for the plaintiff’s rights at that point and can in no just sense be thought unfavorable to her. We think that the issue may have been in the case. If it was, then it was proper, and the court’s duty, to charge upon it.

If it was not in the case, then we think the instruction could not have misled the jury to the harm of the plaintiff. The charge in this respect seems to us to lean towards the plaintiff and to be in her interest. We think it was so intended. Upon either footing, we are of the opinion that the giving it was not manifest error to the prejudice of the one who is complaining of it.

We find in this record that no error has intervened, and from it cannot say that substantial justice has not been done.

The judgment of the court of common pleas is affirmed.

Shields and Powell, JJ., concur.


text:
    MORTGAGES — EMINENT DOMAIN.
    [Hamilton (1st) Court of Appeals,
    July 15, 1914.]
    Swing, Jones and Jones, JJ.
    Julia McGill Walters v. Emil Homberg (two cases.).
    1. Lapse of Fifteen Years Between Decree of Sale and Filing Application to Confirm not Defense to Plea for Confirmation of Foreclosure Sale.
    Since decree for sale on foreclosure does not become dormant, a plea of laches on account of fifteen years’ delay in applying for confirmation of the sale, which was made in due course after taking the decree, does not lie by a mortgagor who has failed to satisfy the debt secured, and raises no question as to the validity of the mortgage or the regularity of the proceedings in foreclosure.
    2. Appreciation of Property Value between Sale and Confirmation no Avail to Defeat Confirmation.
    A plea that the value of property, sold at judicial sale to the mortgagee, has greatly appreciated between the date of confirmation and date of sale some fifteen years before, is of no avail on review, when even the present value is insufficient to satisfy all claims against it, and the mortgagor fails to exercise his equity of redemption.
    3. Running of Limitations before Confirmation of Foreclosure Sale No Bar to Confirmation.
    Bringing foreclosure proceedings stops the running of the statute of limitations as to the mortgage in issue. Mere delay in the consideration of the question of confirmation of a sale on foreclosure, caused by the failure of both parties to the case to move for earlier return by the court, all being equally chargeable with such delay, will not avail the mortgagor to prevent confirmation.
    4. Errors not Changing Result of Issue not Prejudicial.
    Errors will not be deemed prejudicial where their avoidance ■ would not have changed the result of the proceedings.
    5. Necessity of Witnesses to Vest Title on Assignment of Mortgage.
    The amendment of Sec. 8546 G. C., dispensing with witnesses and an acknowledgment to the assignment of a mortgage, does not go to the extent of causing the assignment to carry the legal title to the land conveyed by the mortgage, but to vest' title the provisions of Sec. 8510 G. C. must still be observed.

      6. Appropriation Proceedings Statute Gives no Court Jurisdiction Excluding Another Court Confirming Sale Previously Made in Foreclosure.
    There is nothing in the statute controlling appropriation proceedings which gives to the court in which they are instituted jurisdiction over the property to be condemned, to the exclusion of the jurisdiction of another court in which foreclosure proceedings, involving the same property, have been previously commenced and sale made but not yet confirmed.
    [Syllabus approved by the court.]
    Error.

      Frank Woodward and Hunt, Bennett & Utter, for plaintiff in error.

      John E. Fitzpatrick and Gideon G. Wilson, for defendant in error.
   JONES, O. B., J.

The first ease was a foreclosure proceeding below, brought April 1, 1895, by William M. Ramsey, as guardian of Leora McCammon, to foreclose a second mortgage, recorded August 12, 1891, for $500, and for the sale of a lot on the west side of Reading road north of Burnet avenue belonging to John McGill. There was a prior mortgage on same made by John McGill, then unmarried, to John Frankenberger, and recorded August 6, 1891, to secure a note for $2,700 of that date payable in three years. This loan was made to John McGill by Emil Homberg.who furnished the money and was'at all times the beneficial owner of the note and mortgage. John Frankenberger had no interest therein except as trustee or agent of said Homberg. Said Frankenberger was a clerk in the office of Louis' Reemelin, who was the attorney for the said Homberg in the preparation of said mortgage and in these proceedings up to the time of his death. Said note and mortgage were endorsed in blank by said Frankenberger at the time of their execution and were then delivered to said Homberg. Some time after the record of these two mortgages John McGill conveyed said real estate by deed duly executed and delivered to his wife, Julia McGill.

In this suit John. McGill and Julia McGill, his wife and John Frankenberger were the original defendants and were duly served with summons, and were all in default for answer. William W. Ramsey, who had been appointed as guardian of Leora McCammon to succeed her former guardian, William M. Ramsey, deceased, was substituted as plaintiff in place of the original plaintiff.

Louis Reemelin, wrho had received from Emil Homberg said note and mortgage executed by John McGill to John Frankenberger and endorsed by him in blank, was made a party and filed an answer setting up' said mortgage and asking that the same be declared to be a first lien on said real estate superior to that of plaintiff, and that it be ordered first paid out of the proceeds of said sale.

On July 31, 1897, a decree was entered finding the amount due under plaintiff’s note and mortgage $606.66, with interest from March 1, 1896, and ordering that unless said amount was paid within thirty days defendants’ equity of redemption should be cut off and an order should issue for the sale of said real estate free of the claims of all parties to said action; and finding that the mortgage to John Frankenberger to secure a note of $2,700 recorded August 6, 1891, was a valid, subsisting and first lien upon said premises, and that Louis Reemelin was the owner and holder thereof.

Defendants, John McGill and Julia McGill, having failed to pay the amount so found due, an order for sale was issued September 8, 1897, and October 19, 1897, a return on same was made by the sheriff showing that sale had been duly made and the real estate had been sold to Louis Reemelin.

No further step was taken in the case until December 20, 1912, when Emil Homberg was on his own application made a party and given leave to plead, and on March 19, 1913, filed a motion to confirm said sale. On or about February 1, 1912,. Louis Reemelin died, leaving Evelyn Reemelin his executrix and sole devisee. On June 21, 1913, Emil Homberg filed an answer and cross petition alleging that Louis Reemelin in his lifetime, subsequent to the return of the order of sale, sold and assigned to Emil Homberg said note and mortgage and all interest in said property, and prayed for a: confirmation of sale to him as assignee of the purchaser. On the same day the death of Louis Reemelin was suggested to the court and Evelyn 'Reemelin, his executrix, was made party and by leave filed an .answer alleging and admitting the transfer of the Franken.berger note and mortgage by Louis Reemelin to Emil Homberg .and disclaiming any interest adverse to Emil Homberg. •Then Emil Homberg filed a motion to confirm the sale and ^distribute the proceeds.

On September 9, 1913, Julia Mefeill Walters, who it seems -was formerly Julia McGill, filed an answer. This answer was afterwards on motion of Homberg stricken from the files and leave was refused her to file a motion to set aside said sale; and <on hearing of the motion of Homberg the court confirmed the sale to Emil Homberg, finding that the property has been bid in at sheriff’s sale by Louis' Reemelin for the purpose of protecting said mortgage claim of $2,700; that all his interests had been transferred to Emil Homberg; and ordered the sheriff to convey the property so sold to Emil Homberg, and subrogated. said purchaser to the rights of all parties to said suit, and ordered the proceeds, $1,000, distributed by paying the court costs, $74.68, and paying the balance, $925.32, to Emil Homberg to be applied as a credit upon his mortgage claim which was then found to amount to $5,454; and found that the mortgage of William M. Ramsey, guardian, had been extinguished by proceedings and sale and it was ordered canceled. Afterwards, Julia McGill Walters filed a motion to set aside said decree and for a new trial, which on hearing was overruled.

It is urged by the- plaintiff in error that it was error for the court to confirm this sale after the lapse of so long a time after the filing of the petition in foreclosure; that the delay in ¡seeking confirmation amounted to laches.

She stood in the attitude of mortgagor, admitting in her ¡answer the making and entry of decree of foreclosure and sale, and the sale of the premises to Louis Reemelin, but sought to prevent confirmation of such sale in favor of the mortgagee, but not because of any question of validity of the mortgage. Ehe did not deny that the mortgage was made to secure a bona fide loan which had never been repaid, and did not complain o£ any irregularities in the proceedings.

She raised a question whether Homberg had acquired the interests of Reemelin in the property. It could not be material to her whether Reemelin or Homberg had become the owner under the purchase — that was a question between them. Nor was it material to her whether the money bid had been paid’ into the hands of the sheriff, or not. That concerned the sheriff ’ when he made his return. And as the holder of the mortgage’ was the distributee of the fund, less only the court costs, It was’not necessary to pay it in simply to have it paid.back again, Andrews v. Johns, 59 Ohio St. 65 [51 N. E. Rep. 880]. Her' chief objection was that confirmation had been unusually delayed. She had no cause to complain of this delay, as she was' herself a party and might at any time have taken steps, to move the court to action.

Ramsey, guardian, after sale, finding no possible proceeds to pay his claim probably lost interest, and Reemelin no doubt felt that confirmation could be had whenever the opportunity" to dispose of the property might arise. There were none others in interest to complain, as the defendants apparently had no reason to press the matter.

A decree of sale does not become dormant as does a judgment where execution is not issued. All judicial sales in this state require confirmation by the court before they can be completed. Beaumont v. Herrick, 24 Ohio St. 445, 446.

In Fox v. Reeder, 28 Ohio St. 181 [22 Am. Rep. 370], it is held:

“The benefit of the rule relating to lis pendens may be lost by such long continued inaction as amounts to gross negligence in the party prosecuting, when such inaction is to the prejudice, of innocent persons.”

But the court in its opinion, on page 185, uses the following language:

“In Hunter v. Earl of Hopetown, 4 McQueen 972, this: is said: ‘A suit, though asleep, continues in pendente till dis■posed.-.of/ and the'parties'are still at issue, though the Us may have been for years comatose.’
.. ■ “ ‘An action was commenced in 1845, and a defense lodged. In 1847, the proceedings ceased, and the action became dormant. Held (eighteen years afterward) that the lis, though still asleqp, was nevertheless in pendente, and liable to be roused at the volition of either party.’ But in this case no rights of third parties had intervened to which the principle of lis pendens could apply. The remarks of the court applied to plaintiff and defendant, who were the only parties interested, and, doubtless, as to them the lis may be pending so long as the rights of others are not affected thereby.”

. -The plea of laches attempted to be raised below by plaintiff in error, was not made on behalf of an innocent person, but was made by one who had failed to keep her obligation to repay the loan in an attempt to prevent its collection by the sale of the property which had been pledged to secure it, and therefore had no merit with the court. She said that the city of Cincinnati had acquired rights under appropriation proceedings, because of which the superior court had no jurisdiction to confirm said sale. She showed no authority to represent the city, and it made no claim on its own behalf, and there was no question as between the city and Ilomberg in the matter.

She said that the property had appreciated in value since the sale. That might be to her advantage if only this appreciation had been more than sufficient to pay off the liens. It appears that the sheriff’s sale was for $1,000 while the city later agreed to pay $4,375 for it; but after deducting the taxes and assessments amounting to $2,195.96 there was but $2,179.04 for the net value, while the original loan of $2,700 had not been paid in any part, and with interest added the court found then due upon it $5,454; so there could be no possible interest in any balance for Julia McGill Walters, especially when the second mortgage to Ramsey found in 1895 to be $606.66 would also have to be paid out of the proceeds before she would receive anything on distribution, if the sheriff on re-sale could have sécured the amount the city had agreed to pay. And there was no attempt made to show that the value of the property was beyond that agreed upon between Homberg and the city in the appropriation proceedings.

Mrs. Walters, however, claimed that Homberg’s mortgage had become unenforceable because of the fifteen years’ statute of limitations. That could not be possible in a suit where the mortgage itself is being enforced. The bringing of the action prevented the running of the statute until that action is finally concluded.

It was claimed that the court committed error in striking Mrs. Walter’s answer from the files. She had been in default from the time prior to July 6, 1897; it is a matter of discretion in the court whether default should be set aside and leave given to file an answer. Clark v. Clark, 20 Ohio St. 128.

The answer admitted the judgment and the decree for sale, and the sale to Reemelin. It undertook to set out reasons why the sale should not be confirmed to Homberg, but stated none why it should not be confirmed to Reemelin. All of the proper matters pleaded therein necessarily were considered by the court in determining the motion of Homberg to confirm the salé. Her answer was not stricken from the files until after the hearing of the evidence on that motion, and no evidence to sustain its allegations was offered by her. In our opinion it was error in the court below, having allowed the answer to be filed, to order it stricken from the files, and also to refuse counsel for Mrs. Walters leave to cross-examine witnesses. It was not error to refuse her leave to file a motion to set aside the sale, as that would only bring the same questions before the court as were necessary to be considered under the motion to confirm on which she was heard. And she was permitted to file a motion to set aside the decree of confirmation and for a new trial, and to be heard upon it, thus furnishing an opportunity to present all her objections to the court. ' The matters set up in her answer, if established, did not, however, furnish sufficient reasons why the sale should not be confirmed, and the errors above mentioned can not therefore be deemed prejudicial, especially when Mrs. Walters could have prevented the confirmation by a redemption of the property at any time before final confirmation, and she made no offer or attempt to redeem.

A careful examination of the record fails to disclose any error prejudicial to the plaintiff in error, and the judgment will therefore be affirmed.

The second case below was an appropriation proceeding brought by the city, in which the same lot sold on foreclosure in the first case was taken by the city for park purposes, and the question arises, upon distribution, of the amount paid into court, as to the value of the property. This amount was fixed by the verdict of a jury under an agreement between Homberg and the city, and was paid into court under the provisions of Sec. 3686 G. C., and the fund took the place of the property to be contended for by the interpleading of the adverse claimants under the provisions of Sec. 3690 G. C. This amount was $4,375, out of which was paid.for taxes an assessment of $2,-195.96, leaving $2,179.04 for distribution. This amount was claimed by Homberg by virtue of a mortgage under which he claimed not only a lien but also a right of ejectment. And it was also claimed by him as owner of the property under the foreclosure sale.

Plaintiff in error, on the other hand, contended that all claims under the mortgage are barred by the fifteen years’ statute of limitations, Sec. 11221 G. C., and because Homberg was not named as the original mortgagee, but held by assignment not witnessed and acknowledged, that he had no right to ejectment. Therefore while she admits the debt was never paid she claims that said foreclosure sale not having been confirmed until after the bringing of the appropriation proceedings, the superior court was without power to confirm said sale and the lien of the mortgage had become barred by the statute of limitations and there was no right of ejectment because of the form of the assignment.

It seems to have been conceded by counsel that if there had been no foreclosure proceedings and the mortgage alone was to have been depended on, it would have been too late to set up the mortgage in the appropriation proceedings and rely upon it, as more than fifteen years had transpired since the last payment on the note, Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842], And under the case of Doyle v. West, 60 Ohio St. 438 [54 N. E. Rep. 469], even if the finding in the superior court made at the time the decree of sale was taken could be alone relied upon, and subsequent proceedings were without effect, then the fifteen year statute would also apply to that.

This would probably be true, although the case last cited has been distinguished in the case of Graham v. Simon, 76 Ohio St. 77 [81 N. E. Rep. 170], where it is held that an action upon a judgment of a court in this state may be brought at any time within twenty-one years (Sec. 11648 G. C.), following the case of Tyler v. Winslow, 15 Ohio St. 364.

But counsel for defendant in error insist that Homberg became vested with a title under the mortgage to Frankenberger, not because Frankenberger was a mere trustee for him and that the mortgage should have been declared to be his property from the first, but by reason of its assignment to him, and because by the amendment of the section now found in Sec. 8546 G. C., that the assignment of a mortgage in order to vest the title does not now require witnesses and acknowledgment but carries all of the mortgagee’s interest in the property and land including the legal title and the right of ejectment, if such assignment conforms to the terms of that section; and having legal title that he would therefore be entitled to bring ejectment for possession of the property within the twenty-one year statute of limitations under the case of Bradfield v. Hale, 67 Ohio St. 316 [65 N. E. Rep. 1008].

The court below held with the defendant in error this contention.

We do not believe that the amendment found in See. 8546 G. C. dispensing with witnesses and acknowledgment, can be construed to go to the extent of holding that an assignment under its terms will carry the legal title to the land covered by a mortgage. The positive terms of Sec. 8510 require that the conveyance of an interest in real property must be ac- ' knowledged in the presence of two witnesses. A conveyance to vest a title in a mortgagee sufficient to sustain an action for ejectment must be executed in accordance with the requirements of this section.

The court below also found that the bringing of the appropriation- proceedings by the city under the powers of eminent domain had some over-riding power which stopped further action on the part of the superior court in the foreclosure case, and therefore did not rely upon the sale and its confirmation but rather upon the right of ejectment in determining that Homberg was entitled to receive the money held for .distribution. Cincinnati v. Fogarty, 25 Dec. 298 (15 N. S. 541).

We find nothing in the statutes controlling appropriation proceedings that would give the court in which they are instituted jurisdiction over property to be condemned, to the exclusion of the jurisdiction of another court in which foreclosure proceedings, involving the same property, had been previously commenced and sale made but not confirmed. The court where jurisdiction first attached could proceed to final judgment confirming such sale, and such confirmation would relate back to the day of sale and pass title as of that day. Jashensky v. Velrath, 59 Ohio St. 540, 545 [53 N. E. Rep. 46; 69 Am. St. Rep. 786] ; Boyd v. Longworth, 11 Ohio 236; Oviatt v. Brown, 14 Ohio 286 [45 Am. Dec. 539].

The fact that the sale had not been actually confirmed in the superior court when Homberg was first made a party in the appropriation proceedings does not change the rights of the parties. The city dealt with him as the real party in interest both in fixing the value of the property and in the litigation to determine the amount of the assessment charges collectible, and made no denial as to his right to the fund. The supplemental pleadings filed by him setting up his title acquired under the foreclosure sale, take the place of his original answer. The judgment in the foreclosure proceedings, and Homberg’s title thereunder, can not be collaterally questioned here by Mrs. Walters. Sheldon v. Newton, 3 Ohio St. 494; Hammond v. Davenport, 16 Ohio St. 177, 181, 183; Cincinnati, S. & C. Ry. v. Belle Center, 48 Ohio. St. 273; 24 Cyc. 73.

Homberg, as the owner of the property' under the foreclosure sale, is entitled to its proceeds in the appropriation proceedings, and therefore we find that there is no error in the judgment of the court of common pleas in awarding the fund to the defendant in error, although the reasons given for making such award do not meet with our approval.

The judgment of the court below is affirmed.

Swing and Jones, E. H., JJ., concur.


author: SHIELDS, J.

text:
    HIGHWAYS — LIMITATIONS.
    [Richland (5th) Court of Appeals,
    January Term, 1913.]
    Voorhees, Shields and Marriott, JJ.
    Plymouth & Shelby Trac. Co. v. John H. Hart.
    1. Abutter Damaged by Construction of Interurban Traction Line in Front of Property Sues for Damages.
    An abutting owner, who has been damaged by the construction of a railway track in front of his property, may proceed in any proper court for the recovery of such sum from the company as will compensate him for the damages so sustained in so far as his loss can be made good by a money consideration.
    2. Statute of Limitations Relative to Abutter's Encroachment in Road as 'Applied to Railway Company.
    While the statute of limitations does not run against the state as to encroachment upon one of its roads, it does run against a railway company which seeks, in order to make room for its track, to widen the road to the width at which it was originally laid out, and where the improvements of an abutting owner are removed in so widening the road and laying its track, he may recover compensation therefor.
    3. Summarizing or Grouping Issues for Intelligent Understanding of Jury not Erroneous.
    In instructing a jury on the vital issues of a case about to be submitted to them for determination, it is not prejudicial error to so group or summarize the issues that the jury may intelligently understand them.
    [Syllabus by the court.]
    Error to common pleas court.

      Culp & Hines, for plaintiff; in error.

      Sidles, Oreen & Skiles, for defendant in error.
   SHIELDS, J.

This action was commenced in the court of common pleas of this county by John H. Hart, defendant in error, to recover damages against the Plymouth & Shelby Traction Company, plaintiff in error, for injuries to the property of the defendant in error growing out of the location and construction of a street railroad by said company in the incorporated village of Plymouth in said county.

In his amended petition the plaintiff, in substance, avers that he is the owner of out-lot number twenty-four in said village fronting on what is known as the Plymouth and Shelby road in said village; that the defendant owns and operates a line of electric railway extending from the said village of Plymouth to the village of Shelby in Richland county, Ohio; that prior to the construction of said electric railway, plaintiff’s said out-lot was on a common grade with said road fronting said out-lot; that in the construction of its said railway, the defendant wrongfully and without authority located its tracks and roadbed on the west side of said road and immediately adjacent to the plaintiff’s said land, and wrongfully and unlawfully constructed a grade from four to twelve feet high along the east line of a pasture field north of the south line of plaintiff’s said land, thereby rendering it impossible for the plaintiff to enter upon his said land from the said Plymouth and Shelby road; that the defendant wrongfully destroyed the wire fence along said field and along the frontage of the plaintiff’s property, and that along and in front of the orchard on the plaintiff’s said land the defendant cut a hole some six feet in depth and for a distance of about fifty feet and thereby destroyed several valuable fruit trees of the plaintiff; that the defendant wrongfully entered upon the land of the plaintiff and unlawfully took therefrom a large quantity of ground and appropriated it to its own use, and wrongfully destroyed the fence in front of the plaintiff’s garden and constructed a bank about two feet high in front of said garden, thereby throwing the water off of defendant’s right-of-way onto said garden; that immediately in front of the plaintiff’s house, situate on said out-lot, the defendant constructed a grade some two feet above the established grade of the public street, thereby throwing the water from the roadbed onto the plaintiff’s lot and into the plaintiff’s cellar, thereby preventing plaintiff from having a convenient means of ingress and egress to and from his property; that directly north of the plaintiff’s house and in front of a pasture field having a frontage of 200 feet, to a certain creek, the defendant wrongfully and without authority tore down plaintiff’s fence for a distance of some 75 feet north of the plaintiff’s house to said creek, and constructed a bank upon which its tracks were laid about nine feet high, said bank causing the water from said creek to back up and flow over the lands of the plaintiff, rendering the same untillable; that over said creek the defendant constructed a bridge and wrongfully extended the abutments on the south side thereof onto the plaintiff’s land some ten feet, and extended the abutments on the north side thereof onto the plaintiff’s land some six feet, and extended all of the right-of-way of the defendant along said frontage over and onto the plaintiff’s land some five feet, which said five feet of plaintiff’s said land in the construction and laying of its tracks and roadbed the defendant wrongfully appropriated.

By reason of the construction of said grade, the destruction of the plaintiff’s fence and fruit trees, the appropriation of the plaintiff’s ground, the diversion and obstruction of said watercourse, the obstruction of the plaintiff’s means of ingress and egress to and from his said premises, the appropriation of plaintiff’s land in the construction of said bridge and the use of said plaintiff’s land for the defendant’s roadbed, as aforesaid, the plaintiff prays judgment against the defendant „for $2,500.

In its answer to the foregoing amended petition of the plaintiff, the defendant admits its corporate character, and that it is operating an electric railway as alleged in said amended petition; it admits that the land in dispute abuts upon the road leading from Plymouth to Shelby, that said lands are within the incorporated village of Plymouth, and that it has constructed its railway along the west side of said Plymouth and Shebly road, but it denies each and every other allegation therein.

For its further answer and cross petition the defendant says, that prior to the time of its constructing and building said railroad or operating its said cars, it obtained from the council of’ the village of Plymouth, Richland and Huron counties, Ohio,, a franchise to locate and construct its electric railway upon, and along the street of said village described in said petition,, and being the street abutting upon plaintiff’s east line 'of said premises described in plaintiff’s petition; that said railroad was-constructed and is being operated under and by virtue of' the right granted to this defendant company by said franchise-so passed and granted to this company by the council of Plymouth, Richland and Huron counties, Ohio, 'and that the-plaintiff herein signed a written application, consent and request to the council of the village of Plymouth to grant to said defendant company the right and privilege to construct, build and maintain said electric railway, as the same is now constructed and operated on the street abutting on plaintiff’s premises, and by reason of the facts herein alleged, the defendant, asks that plaintiff’s petition may be dismissed.

To the defendant’s answer the plaintiff filed a reply in which it denies each and every affirmative allegation contained in said answer.

Under the issues made by these pleadings the cause was submitted to a .jury resulting in a verdict for the plaintiff. A motion for a new trial was overruled and judgment entered on the verdict. A bill of exceptions was taken embodying the evidence introduced upon the trial, including the charge of the court, and said cause is now in this court upon a petition in error for review. Numerous grounds of alleged error are assigned in said petition in error for the reversal of the judgment of the court of common pleas, but the plaintiff in error urged upon this court and relied principally upon the following grounds of alleged error, namely:

First, that the court below erred in overruling the motion of the defendant below to require the plaintiff below to separately state and number the causes of action in his petition.

Second, that the court below erred in admitting any evidence upon the trial of said cause under the amended petition of the plaintiff.

Third, that the court erred in its charge to the jury.

As to the action of the court below in overruling said motion of the defendant in error to said amended petition, we are of the opinion that said court did not err, there being but one cause of action stated in said amended petition.

Exception is taken to the action of the court below in overruling the objection of the plaintiff in error to the introduction of any evidence upon the part of the defendant in error in support of the averments in his amended petition, the claim being made that if the defendant in error has a cause of action upon which he is entitled to recover damages for any of the injurier complained of, his remedy was under the provisions of Sec. 6448 R. S. (Secs. 11084, 11085 G. C.), and not under the provisions of Sec. 3283 R. S. (Sec. 8765 G. C.).

As we view it, Sec 3283 R. S. was enacted by the legislature in the interest of abutting proper owners for their protection. It contemplates that when a railroad company injures an abutting property owner in his private property rights, by the location and construction of its track or tracks upon the street upon which such property abuts, such company shall respond in damages for such injuries and in such sum as will compensate him for the damages suffered, in so far as his loss can be repaired by a money consideration in restoring to him what he has lost through the location and construction of such railroad.

This statute provides that—

“Every company which lays a track upon any such street * * * shall be responsible for injuries done thereby to private or public property lying upon or near to such ground.”

We think the language here used is capable of but one construction and must be taken to mean what it plainly says, namely, that the railroad company shall be held responsible for all injuries of every description done to the abutting property owner in the location and construction of its track and road. We do not think that the injured abutter is required to go into the probate court and institute proceedings in that court as provided in See. 6448 R. S., for the recovery of damages for injuries so done to private property and property rights as are set out in the amended petition, but that a remedy is provided for the redress of such alleged wrong in said See. 3283 E. S. Hence we are of the opinion that the objection of the plaintiff in error at the outset of the trial of this case to the admission of evidence under said amended petition was properly overruled by the court and that such action of said court affords no ground of error. Columbus, H. V. & T. Ry. v. Gardner, 45 Ohio St. 309, 318 [13 N. E. Rep. 69] ; Grafton v. Railway, 5 O. F. D. 318 [21 Fed. Rep. 309].

It appears that a franchise was granted to this street railway company by the council of the village of Plymouth to locate its track upon the east side of what is known as the Plymouth and Shelby road, now a street within the corporate limits of said village, fronting the premises of the defendant in error, and that the council of said village by resolution afterward authorised said company to locate its road on the west side of said street. That said street in front of and along said premises was laid out and originally intended as a public highway to be sixty feet wide and that the plaintiff in error in laying its said track upon the west side of said street found it necessary to widen the same to the full width of sixty feet, the standard width of a state road (said street being then about forty or forty-five feet wide), and in so doing the defendant in error claims that said company removed and destroyed the fence in front of his said premises, and also removed and destroyed several valuable trees growing in his orchard, included in the strip of land enclosed by said fence and which has been so enclosed and occupied by the defendant in error for a period of twenty-five years or more. That said company also erected an embankment along the full length of the premises of the defendant in error, thus raising the grade' of said street without authority and in violation of the terms of the franchise granted to said railroad company by said village council, thus destroying the easement to certain portions of the property of the defendant in error, and especially interfering with his right of ingress and egress to and from his property, and by unlaw.fully turning the surface water onto his premises and into his cellar and otherwise interfering with his private property rights. It appears that said company acted upon the assumption that it had the legal right to appropriate to its use the property occupied and enjoyed by the defendant in error, for the time stated, described as a part of his orchard and the trees growing thereon, in widening said street to what is claimed to be sixty feet to accommodate the location of its roadbed and track. “Whatever the width of said street, if it was less in width than what it was originally laid out and designed to be as a state road by the authorities, and whatever the length of time the defendant in error may have occupied it with his fence and orchard by encroaching upon any part of such sixty feet while a state road, the state through its properly constituted authorities might have asserted its right to such part of said road occupied by said fence and orchard, as aforesaid, if it had seen fit to do so, because the statute of limitations would not run against the state, but the state could not delegate this attribute of sovereignty to said village which, after .its incorporation as such, succeeded by operation of law to the exercise of jurisdiction over so much of said road as was included within the corporate limits of such village and against which the statute of limitations would run. Hartman v. Hunter, 56 Ohio St. 175, 179, 180 [46 N. E. Rep. 577] ; Elster v. Springfield, 49 Ohio St. 98 [30 N. E. Rep. 274].

And if said company in so widening said street or road removed and destroyed said fence and growing trees in the orchard west of it belonging to the defendant in error, it is liable in damages for such removal and destruction. In other words, the act of said village in causing said street or road to be widened to what is claimed to be the standard width would be lawful, while the act of said company in so widening said street would be wrongful, entailing upon it the consequences of such wrongful act. Hence, we think it was proper for the court below to submit to the jury, as was done, the various elements of damages claimed to have resulted from the widening of this street or road by said company, by the location and construction of its roadbed and track as aforesaid, and it was the province of the jury to determine the amount of such damages in the light of the evidence tending to show the condition of the property in question before and after the alleged wrongful appropriation by said company, keeping in mind the rule that the abutting property owner should be made whole - as to all things in connection with the location and construction of a railroad which tends to depreciate the value of his property. Longworth v. Cincinnati, 48 Ohio St. 637 [27 N. E. Rep. 274] ; Columbus H. V. & T. Ry. v. Gardner, supra; Powers v. Railway, 33 Ohio St. 435.

Objection is also made to the action of the court below in charging the jury in what is claimed to be the “grouping the claims” of the plaintiff.

It is the duty of the court to properly and fully instruct the jury as to the vital issues in a case, and in summarizing such issues that the jury may intelligently understand them we think there is no ground of prejudicial error.

We have examined the record with reference to the other assignments of error set forth in said petition in error, and find no such error therein for -which the judgment entered herein should be reversed. The judgment of the court of common pleas will therefore be affirmed, at the costs of the plaintiff in error, but without penalty.

Exception noted.

Voorhees and Marriott, JJ., concur.


text:
    ACTIONS — LIMITATIONS.
    [Hamilton (1st) Court of Appeals,
    June 7, 1913.]
    Jones, Swing and Jones, JJ.
    John G. Roth et al. v. Joseph Hummel, Exr.
    ' One Year Statute for Actions against Heirs of Decedent not Merely Limitation but Necessary Qualification of Right to Maintain Action.
    The provisions in Sec. 10878 G. C. (R. S. 6218), requiring suit to be commenced against the heirs, widow and next of kin of a decedent within one year after the time when the right of action shall first accrue, is not merely a statute of limitation relating to the remedy, but is a necessary qualification of the right to maintain such an action.
    [Syllabus by the court.]
    Error to common pleas court.

      E. P. Kaufman, Denis F. Cash and F. J. Dorger, for plaintiffs in error.

      E. A. Reeve and Cogan, Williams & Ragland, for defendant in error.
   JONES, O. B., J.

This proceeding in error is brought by the distributees, who were the children and next of kin of John C. Roth, deceased, to reverse a judgment against them taken upon the bond of Frank Fehr as executor of Theresa Aulbach, deceased, on which bond John C. Roth was one of the sureties. Roth died and his estate was fully administered and distributed before the settlement of the account of Frank Fehr as such executor, so the action below was brought against Fehr’s representatives and those of the other bondsman and the distributees of the estate of John C. Roth, under Secs. 6217 and 6218 R. S. (being before the enactment of the General Code).

A demurrer was Sled by Roth’s distributees to the petition and amendment thereto both general, that the petition did not state a cause of action, and special in that “the action was not brought within the time limited for the commencement of such actions.” This demurrer was overruled, to which ruling they excepted. Afterwards they answered, and on trial judgment was entered against them.

The account of Frank Fehr as executor of Theresa Aulbaeh, deceased, was filed in the probate court which, upon settlement of same May 1, 1902, found that there was due from him as executor of said estate some $3,500. Fehr’s successor as executor of Theresa Aulbach, who was plaintiff below, gave notice May 10, 1902, of his intention to appeal from this finding and judgment of the probate court to the court of common pleas. The transcript and original papers were filed in the common pleas court on August 4, 1902, on appeal from the probate court. As the statute in order to perfect such appeal required same to be filed “by the person appealing” on or before the second day of the term of said court next after the undertaking or notice was given (R. S. 6409), which day was the first Tuesday after the first Monday in July, it will be seen that the transcript and papers were filed a month too late. This state of facts appearing to the common pleas court it dismissed the appeal on June 3, 1908.

In Biddle v. Phipps, 1 Circ. Dec. 363 (2 R. 61), it was held that the person appealing must file the transcript. And in Downing v. Downing, 13-23 O. C. C. 389 (3 N. S. 623), that a failure to file the transcript is fatal. And in Browne v. Wallace, 66 Ohio St. 57 [63 N. E. Rep. 588], the Supreme Court has laid down the rule as follows:

“As the right of appeal exists only by virtue of the statutes, in order to give the appellate court jurisdiction the statutory provisions must be strictly followed.”

The common pleas court never having obtained jurisdiction of this appeal, it was dismissed. This practically decided that there never had been any pending appeal and the judgment of the probate court had been at all times after its entry in full force precisely as if no attempt had been made to appeal it.

The defendant in error was himself responsible for the delay caused by his abortive attempt, and plaintiffs in error were not in any way a party to these proceedings or responsible for same.

Section 6217 R. S. provided:

“After the settlement of any estate by an executor or administrator and after the expiration of the time limited for the commencement of actions against him by the creditors of the deceased, the heirs, next of kin, widow as next of kin, devisees and legatees of the deceased shall be liable by action in the common pleas or superior court, in the manner provided in the following sections, for all debts which could not have been sued for, against the executor or administrator, and for which provision shall not have been made as hereinbefore provided.”

And Sec. 6218 R. S. provided:

‘ ‘ Any such creditor whose right of action shall first accrue after the expiration of the time of such limitation * * * may recover the same against the heirs, widow as next of kin and next of kin of the deceased, and the devisees and legatees trader his will, each one of whom shall be liable to the creditor to an (amount) not exceeding the value, whether of real or personal estate, that he or she shall have received under the will, or by the distribution of the estate of the deceased * * * and provided further, no such suit shall be maintained unless it be commenced within one year next after the time when the right of action shall first accrue, except” (then follow exceptions for disabilities of infancy, lunacy, etc.).

Without the provisions of these statutes there would be no right of action against John G. Roth and his brothers and sisters. They did not sign Fehr’s bond as executor and had no relations whatever to plaintiff or the claim sued upon. Their father however was a surety on the bond, and if he had then been alive or his estate had been unsettled, or in the hands of his executrix, he or she could have been sued on the bond at any time within ten years from the time the right of action accrued (See. 4984 R. S.; 11226 G. C.). But as alleged in the petition .John C. Roth’s estate had been settled in April, 1901, and the probate court refused plaintiff’s application to appoint an administrator de bonis non with the will annexed November 25, 1907. There could therefore be no action against him or his estate. And Sees. 6217 and 6218 R. S. furnish the only authority for any proceeding against his distributees.

Plaintiff’s cause of action first accrued when the probate court settled the account of Fehr as executor. Newton v. Hammond, 38 Ohio St. 430.

The order finding the amount due from him to the estate-became a judgment in favor of the estate to which the succeeding executor was entitled. Slagle v. Entrekin, 44 Ohio St. 637 [10 N. E. Rep. 675].

In this ease therefore plaintiff’s cause of action accrued May 1, 1.902, and no suit could be maintained thereon against plaintiffs in error unless it was commenced within one year from that date. The petition was filed August 31, 1908, more than five years too late.

The argument of defendant in error that because the action arises upon an executor’s bond under Sec. 4984 R. S. (11226 G. C.), it can be brought within ten years, overlooks the fact that this section was itself “subject to the qualifications in Sec. 4976 R. S.” which was as follows:

“Civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues; but where a different limitation is prescribed by statute that shall govern. ’ ’

Section 6218 R. S. does prescribe a different limitation of one year and as it and the ten year limitation of Sec. 4984 R. S. both start from the time the cause of action accrues, the latter must yield to the former by virtue of the express terms of See. 4976 R. S. If this were not the rule we could hardly conceive of a case where the one year provision of Sec. 6218 R. S. would apply. Take , a case where it was desired to pursue distributees on a claim arising on a verbal contract, by the same argument suit could be commenced in six years and not in one as the statute provides. So if it were upon a promissory note it might be prosecuted in fifteen years and not be limited to one year, and so with every other class of the claims, rendering the one year provision entirely nugatory.

Our Supreme Court has passed on this question in Columbus, S. & C. Ry. v. Mowatt, 35 Ohio St. 284, where a claim on behalf of a property holder for damages' caused by change of grade made by á railroad in occupying a- city street was limited by the terms of the action to two years instead of the general statute of limitations for tort of four years. See also Shierberg v. Shierberg, 8 Dec. Re. 115 (5 Bull. 753).

There is no right to proceed against the distributees of an estate except upon the terms named in the statute. In the case of Pittsburgh, C. & St. L. Ry. v. Hine, 25 Ohio St. 629, for damages because of wrongful death, the statute giving a right of action contained a qualification “provided that every such action shall be commenced within two years after the death of such deceased person.” After the death had occurred, by a change in the law, this provision was omitted and suit was brought after two years had expired. The court held that the restriction qualified the right itself and no repeal could be had to affect rights of the parties already accrued.

Plaintiff therefore had no right of action against Roth’s distributees under the petition when filed and their demurrer should have been sustained. Judgment reversed as to plaintiffs, in error and judgment will be entered for them here.

Swing and Jones, E. H., JJ., concur.