text:
    CONFLICT BETWEEN STATUTORY AND. CITY CHARTER PROVISIONS.
    Court of Appeals for Cuyahoga County.
    August Froelich v. City of Cleveland.
    Decided, July 15, 1918.
    Home Rule — May Not be Defeated by Encroaching Statutory Provisions , • — Regulatory Measures by the Council of a Charter City — Paramount to those of the State Legislature — ~Where Relating to Matters of Local Concern — Regulations as to the Use of Streets.

    1. In case of conflict between an ordinance of a charter' city, having reference to a matter of purely local concern, and a state law covering the same subject, the ordinance is supreme and the conflicting provision of the statute fails.
    2. Conviction of violation of an ordinance of the city of Cleveland, limiting the size of the loads which may be drawn over the streets of that city to ten tons including the weight of the vehicle, • is not affected by the fact- that a state law provides a different maximum load.

      Hole (& Hole, for plaintiff in error.
    W. G. FitzGerald, contra.
   Grant, J.

Error to the municipal court.

The plaintiff in error — defendant below — was arrested, tried, convicted and sentenced, in the lower court, the charge against him being a violation of the following ordinance of the defendant city: ‘ /

“Section 1343e. No load in excess of ten (10) tons in weight, including the weight of-the vehicles, shall be propelled or driven upon or over the streets of the city, provided, however, that the director of public service may issue permits in .special cases -for the carrying of heavier loads upon or over certain streets specially designated in the permit.” * * *

The sole assignment of error relied on here to work a reversal of this judgment of conviction and sentence, is that the city of Cleveland was without constitutional power to pass the ordinance in question; and this is so — it is said — because the ordinance is in plain and destructive conflict with the following statute law of the state of Ohio — the sections being those of the General Code:

“Section 7248. No person, firm or corporation shall transport over the improved public streets, highways, bridges or culverts, within this state, in a vehicle propelled by either motor or muscular power, a burden, including weight of load and vehicle, greater than the following:
“In vehicles having iron or steel tires three inches or less in width a load of five hundred pounds for each inch of the total width of tire surface on all wheels. When the tires oh 'such vehicles exceed three inches in width an additional load of eight hundred pounds shall be permitted -for each inch by which the total width of the tire surface on all wheels exceeds twelve inches;
: “ In vehicles having tires of rubber or other similar substance a load of eight hundred pounds for each inch of the total width of' tire surface on all wheels. The provisions of this section shall not apply to iron or steel tire horse drawn vehicles when in use upon the streets or thoroughfares of cities or upon the streets and thoroughfares of villages, except such streets and thoroughfares therein as have been or may hereafter be'improved by the state or county.
“See. 7249. No traction engine, ■ trailer, steam roller, automobile truck or other power vehicle carrying a weight in excess of four tons, including -weight of. vehicle, shall be operated upon any of the improved public streets, highways, bridges or culverts within this state at greater speed than fifteen miles per hour, and no such vehicle carrying a weight in excess of six tons, including the weight of such vehicle, shall be operated upon any such a street, highway, bridge or culvert at a speed greater than eight miles per hour when such vehicle is equipped with iron or steel tires or at a speed greater than twelve miles per hour when such vehicle is equipped with tires of rubber or other smilar substance.
' “Sec. 7250. The weights of loads prescribed and the rates of ■speed mentioned in Sections 7246 and 7249 inclusive of the General Code shall not be decreased or prohibited by any ordinance, resolution, rule or regulation of a municipal corporation, board of county commissioners, board of township trustees or other public authority. ”

Inasmuch as the ordinance forbids that which the statute'by not forbidding permits, we take'it to be manifest that in this respect and to that extent the two are in conflict; and in-view of the' writ of prohibition served on the municipality by the last quoted section of the statute, we must conclude that the variance was premeditated and invited, and amounts to a challenge ox the charter of the city, under favor of which the ordinance was passed.

Our present duty,, therefore, is now owed to finding out which of these two repugnant enactments bears the image and superscription of Caesar; which of the two is in their conflict paramount? "Which is the law of the ease? If the statute is so, then the accused was illegally convicted and the judgment should be reversed. If the ordinance is the law applicable, then the conviction was right and must stand.

This inquiry calls for a consideration of the charter of the city of Cleveland.

The grant of power conferred on the latter by the Constitution of Ohio, is to be found in the Eighteenth Article of that organic instrument, adopted September 3, 1912, Section 3 whereof is ,as follows:

•“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. ’ ’

. The seventh section of the same article is in the following language:

“Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all powers of local self-government. ’J.

Availing themselves of the permissions thus constitutionally accorded to them, the people of Cleveland adopted their charter and there is no doubt that it delegates to the city legislative authorities ample power to pass the ordinance in question, and to its exeutive power to enforce obedience to it,' unless some ■superior source of jurisdiction may of right interfere and forbid it. ■ So much, we think, will not be controverted.

The history involved in these provisions of the organic law of 1912 is too recent to require recitation, and so well known in its purpose and intendments, that we are not at liberty to ignore it and pass upon the issue at bar as if it had no history.

For some years prior to the revision of 1912, the limitations imposed by the Constitution of Ohio on the powers of the people to.order their■ own domestic and local affairs in their own way, had been severely felt and acrimoniously discussed throughout the state. It was felt that municipalities should have a free hand in administering laws appertaining to their police needs, without the interference constantly inspired by the Legislature, made up of men in no way responsible to those whose concern they were .all the while meddling with and whose plans for a better local government they were bringing to naught. The idea was embodied in the term “home rule,” and the agitation culminated in the convention of the year last mentioned.

It may with confidence be affirmed that the idea of local self-government w.as dominant in that body and its work, overtopping in interest and outcome all other considerations and resulting in what the framers of the revised instrument and the people back of them believed was the planting in it of their will in this respect, beyond the power of the Legislature to overturn, uproot or undermine. Their wish found expression in the provisions of the Constitution just quoted.

Those provisions evidence the unquestionable public policy of the state, to be obeyed and respected accordingly by every means .and all agencies charged with the duty of administering them in all integrity, by advancing the remedies furnished by them and enforcing all appropriate sanctions necessary to make them obeyed and effective. There is no reason to think that this policy has since become unsettled. It has been crowded from the front by dangers larger than those against which its business is to. safeguard the common welfare — that is, a peril now looms higher on a wider horizon of immediate vision; but that it will resume its former importance as the exigencies of the present are met and pass from view, is not to be doubted, as we think. In any event,, a retreat from this policy must, if at all, be sounded by the same power which commanded the advance, the people themselves, by. constitutional means; the courts can not be drafted to the service of sappers and miners in overthrowing what the popular hands so laboriously and in the face of so much opposition built up.

Nor can the courts aid in the undermining process by indirection, by refining away the barriers of the Constitution and sterilizing what the people planted as fruitful agencies for coming to their own.

There is reason to fear, if not to believe, that the average congregation at Columbus would be more than glad to resume its ancient function of governing Cleveland in matters solely of Cleveland concernment as well as that of the state, if the opportunity to do so were to be restored by the courts. The member from Poor-euss township ordinarily esteems it a duty as well as a privilege to interfere and impose his own idea — perhaps the term is rather a strong one for him — or his whim, or his prejudice, on the numerous inhabitants and the large interests of cities as far beyond his range of mental vision as they are from his sequestered bailiwick. The statute, the paramountcy of which is insisted on here, was passed, at least as to its present form, since the adoption of the constitutional provision and since the Cleveland charter was framed in promotion of its permissive authority; the statute therefore in purpose can be regarded in no other light than as throwing down, deliberately, a challenge to the conflict between Cleveland and Podunk assembled at Columbus. If the challenger prevails, then a succession of such invitations to conflict with resulting victories each time, would end in sending the charter to the wall and the absorption in the State House of all the powers which the Constitution and public policy of the state meant to reserve to, and concentrate in, the city hall, with all the abuses incident to such absorptive appetites. The result of the undermining process, if successful, would be to return to power the abuses of the old and evil time and reimpose them on the now free municipalities of the state with as firm a seat as the Old Man of the Sea had on the shoulders of Sinbad the Sailor. The long cherished and hardly won victory of reform in matters of domestic concern .and local self-government, now crystallized and imbedded in the Constitution, would be frittered .away, and the dead and buried charter would deserve the epitaph which the late Gen. Schenck proposed for his bill, defeated by similar means — “Nibbled to-death by pismires!’’ Personally, I confess to having no sympathy with the end in view and no disposition to assist in the process by which it is proposed to reach it, except in obedience to a plain duty imposed by law and in clearing my o.ath of office.

To see whether judicial dnty requires this reluctance — natural in the citizen having the principle of letting people order their own concerns in their own way, under law — -to be overcome in obedience to the commands of a superior power, calls for an examination, somewhat critically — as its importance deserves — of this question of paramountcy now put in issue in such form as to require a -categorical answer, which — no matter what becomes of this judgment after it leaves its present field of review — must stand as the law of the case.

The conflicting nature of the two enactments involved in this inquiry, the statute and the ordinance, 'being admitted or found, the decisive underlying question arises, as we think, as to whether the things forbidden to be done by the latter, but within limits permitted to be done by the former, are so forbidden and denounced by the ordinance as offenses to be punished, are so forbidden in the exercise of a power of local self-government under the charter of Cleveland, to the effect of taking them out of t'he inhibition arising from a conflict between the local law and a general law of the state, or what purports to be a general state law. For it will take more than a state law, general in terms and general in operation through the state elsewhere than in charter governed municipalities, to work the effect of annulling the judgment of conviction before us. There must be a denial of the conclusion that the subject dealt with by the. ordinance is a matter peculiar or appropriate to “local self-government, ’ ’ within the contemplation of the article • of the Constitution with which this conviction has to do. That’ inquiry being answered one way or the other, ,and one way or the other we shall be able to answer the question of paramountcy, upon considerations of both principle and authority, as we think.

If any matter more than another comes within the ordinarily conceived definition of local cognizance, if anything is to be thought as coming within the notion of “local police,” “sanitary,” or matters “similar” in scope and significance to these, that.thing must be affairs which deal with, and concern a city’s streets. To say that a city must at its own proper peril keep its streets and ways open, practicable for safe travel, in repair and free from nuisance, and pay for any violation of this law-imposed duty, and yet have its control over those same streets under.the supervision of a foreign authority, when by the organic law it is clothed with the right of exclusive dominion over things of-local and domestic concernment, seems to us preposterous. To admit it would make the Constitution in this most important respect self-destructive; it would permit the small’political units of the state to dictate to the powerful cities their internal policies and to defeat those which would not measure up, or down, to the rural ideas of the backwoodsmen. It would open to the forces of intrigue and chicane, incarnate in a legislative lobby, the most vital interests of great bodies of people, representing the opulent cities and emasculate the virility- from governments which can be honest and efficient only when they are brought frequently face to face with the governed and -be made to account at each recurring election at the bar of the local masters. Shch a state of ■affairs would reduce the theory of the new Constitution to a governmental solecism, an absurdity and a standing invitation for home rule to commit hari-kari.

We have no difficulty in finding that such is not a doctrine in consonance with, or permitted by the Constitution of 1912.

Having thus concluded, any remaining inquiry is answered, we think, by a consideration of the footing upon which the court proceeded in Billings v. Cleveland Railway Company, 92 O. S., 478.

That ease is referred to in the brief for the plaintiff in error here, where its application to the ease in hand is denied. We think differently. It is inadequately reported, in the respect that the points relied on by counsel are. not stated. But as the case was tried first in this court, we are quite familiar with the line of argument pursued. It was to the effect that as Euclid avenue was at a remote period in its history a state or county road and as such had been amenable to general Ohio law of state authority and making, and since the jurisdiction thus conferred had in no way been withdrawn, although by becoming a street of Cleveland that road had passed under city control as a concrete matter of administration, and because state laws required consents from abutting owners before the tracks of the defendant railway company could be laid in the avenue between East Twenty-second street and East Fortieth street, whereas the charter gave the right burdened by no such consents, the charter thus and thereby came in conflict with a general state law in that regard, and so was inoperative and void; such was the argument. The Supreme Court denied the contention. It found, first, that the right of the abutting owner to give or withold consent, was not a property right.

No more, as we view the matter, has an Akron truck driver ,a property right to traverse the streets of a city other than his own, with truck overloaded to .an extent incompatible, in the estimation of the city which is chargeable with the safety and upkeep of those streets with “that safety, at his own will and pleasure, subject only to a state law, different in its permissive use of streets and roads of the whole state from that which Cleveland has by ordinance seen fit to prescribe and limit.

Its further finding was that the subject of the litigation, to-wit, the use and control of a street of Cleveland, was a subject which might be provided for by a charter adopted under the power granted by the Home Rule provision of the Constitution now under consideration. Having proceeded thus far towards an ultimate solution of the question in hand, the court stated its corollary thus:

“Such consents are not .property rights, but rights in their nature personal to each owner of an abutting lot. ■
‘ ‘ Such personal rights were bestowed by the General Assembly on owners of abutting lots as a check upon the power of the municipality. The right referred to not being a property right (the taking of which would violate the guaranties of the.Constitution, unless done by due process of law and after full compensation), it follows that the statute conferring it, being a matter of local concern, when inconsistent with the provisions of the charter passed under favor of the Constitution, would fall simply because it was inconsistent. ’ ’

Otherwise stated, when a state law undertakes to deal with a local affair, so far forth it becomes a matter of local concern itself, and coming .in judicial collision with an ordinance constitutionally competent to prescribe exclusively the terms upon which alone that matter of local concern shall be exercised or controlled, the statute fails and the charter and ordinances passed in pursuance thereof become supreme. Both sources of authority, the city council and the state Legislature, can not be dominant in the' same field of jurisdiction. If two ride on the same horse, one must ride behind. Given the fact of inconsistency and the further fact that the matter is of local concern, the Legislature retires and leaves the council the master. We have these two postulated facts — a conflict and a subject of local concernment.

Obviously, to our apprehension, the same conclusion must follow. It would not be difficult, as we think, to reach the same result upon other avenues of approach, both upon the reason of the thing and adjudicated cases. But it is not deemed necessary to do so.

It follows that of the two pieces of legislation, the ordinance, as applied to this case, is paramount, and the claimed controlling force of the statute must be denied.'

There are some other technical points raised by the record under review, but they are not insisted on, nor are they material.

There is no error apparent in the judgment complained of, and it is, therefore, affirmed.

Lawrence, J., concurs; -Dunlap, J., dissents.


source: Caselaw Access Project

author: Allread, J.

license: Public Domain

text:
    [DAMAGES DUE TO OIL ESCAPING INTO A COAL MINE.
    Court of Appeals for Franklin. County.
    Rock Run Coal Co. v. Chartiers Oil Co.
    Decided, March 21, 1916.

      Gas and Oil — Liability for Permitting Oil to Escape from Oil Well Into a Goal Mine — ■Not Avoided by Trespass to the Mine Owner.

    An oil company, holding an- oil and gas lease covering lands upon which a coal company is operating a coal mine which has been extended to contiguous lands, is liable under Section 945, 'G. C., for damages resulting from the escape of oil to adjoining land and its percolation into said coal mine causing explosions and fire therein, notwithstanding the coal mine had been extended beyond the limits of its lease and to land to which neither the coal company nor the oil company have any mining rights.

      C. M. Addison, for plaintiff in error.

      D. N. Postlewaite, contra.
   Allread, J.

The coal company brought an action against the oil company to recover damages in the amount of fifty thousand dollars based upon the alleged negligence of the oil company in allowing oil to escape from its well and percolate into the mine operated by the coal company, whereby in the ordinary operation of the mine a fire was started and still rages in plaintiff’s co.al mine.

The coal company owns certain coal lands and holds a lease from the Hocking Valley Products Company of certain contiguous coal lands upon which the coal company was operating a coal mine.

The oil-company has an oil and gas lease from the same lessor covering the lands leased by the coal company, together with other contiguous lands, and has certain oil wells in operation.

It is charged in the petition that the oil company so carelessly and negligently operated its oil wells, particularly well No. 19, as to permit the escape of oil and its percolation into the strata of coal forming the facing of the coal company’s mines and that in the operation of said mines an ordinary and usual explosion occurred, starting the fire, above referred to.

One issue tendered in the answer was to the effect that the coal company has extended its mining operations beyond the limits of its lease and into territory upon which it had no mining rights.

There was evidence tending to prove that well No. 19 of the oil company was not located upon the territory included in the coal company’s lease.

There was also evidence tending to show that the coal company’s employees had extended its mining operations beyond the limits of its lease in the direction of well No. 19.

There is also, evidence tending to prove that in mining operations it is difficult for' operators to determine when the exact boundary line, of the lease was reached; that the lessor had been ashed, to furnish a surveyor, but that the .agent of the lessor had stated that it made no difference whether the exact line was passed or not, as the coal could not be mined by anyone else.

There was testimony on behalf of the oil company tending to contradict the statement that it would consent to the extension of the mining operations ’beyond the exact boundary line of the lease.

The court charged the jury in substance that the oil company owed the coal company no duty in respect to confining its oil if the coal company was at the time and place of the explosion mining coal upon the land beyond its own premises and thereby closer to the defendant’s oil well.

There are several paragraphs in the charge upon this subject, all of which are consistent and to the effect that the coal company could not recover, if defendant’s operations at the time and place of the explosion were upon the land which it had no rights under the lease or license.

There was a verdict and judgment in the trial court for the defendant. The case is brought here upon petition in error, and the chief, if not the only error .assigned, is in relation to the charge of the court in respect to the right of plaintiff to recover in ease his operations had extended beyond the limits of its lease or license.

It must be remembered that the oil company had no coal rights, but only the right to drill and operate oil and gas wells. The coal company by extending across the line of its lease on the other lands of the lessor was violating no property right of the oil company.

Defendant in error relies largely upon the case of Wheeling & L. E. R. R. v. Harvey, 77 Ohio St., 235. We think, however, there are two very important distinctions between that case and the one at bar; first, the plaintiff here is not a trespasser against any of the defendant’s rights .and, second, a statutory obligation which can not be limited merely to the owner of the land adjacent as claimed to have been violated.

In respect to the first definition, we think that the court is not entitled to say as a matter of law that the mere fact that the coal company has extended its operations beyond the territory included in its lease or license prevents recovery.

If the coal company was in fact a trespasser, it was between the coal company ,and its lessor. It is no defense in favor of the oil company.

In 29 Cyc., 443, it is said:

“To relieve one from liability on the ground that the injured person is a trespasser, the premises must belong to the person whose negligence is complained of.”

A number of cases are cited 'in support of that proposition and we think it is sustained by the great weight of authority.

Upon the second proposition, the statute (Section 945, G. C.) fixed the duty of the oil company in drilling and maintaining wells through coal mines.

The duty so imposed by statute does not depend upon the legal title to the coal in the neighborhood of the oil well.

The statute was intended not only to fix the respective duties of the operator of the oil well and of the owner of the coal mine, but to make the operation of the coal mine safe and to prevent the starting of destructive fires.

It would be too narrow a construction of this remedial statute to hold that the duties so prescribed do not extend to a coal mine operator who accidentally or even intentionally goes beyond the limits of his lease.

■ The error in the court’s charge was vital and substantial and must be presumed to have influenced the jury in the rendition of the. verdict. ■ The judgment of the court' of common pleas, should, therefore be reversed and cause remanded for a new trial.

Ferneding, J., and Kunkle, J., concur.


author: Grant, J.

text:
    DENIAL OF CIVIL RIGHTS TO PERSONS OF JEWISH’EXTRACTION.
    Court of Appeals for Cuyahoga County.
    Asa Anderson v. State of Ohio.
    Decided, July 15, 1918.

      Civil Rights — Denial to Jews of Admission to a Dance Hall — In Violation of Civil Rights.

    The proprietor of a dance hall, who refuses admission to Jews desiring to enter and offering the admission fee, putting them off with the suggestion that they come some other time, is liable to the pains and penalties provided for those who' violate the civil rights act.

      J. J. McCormick, for plaintiff in error.

      Jas. L. Lind and E. E. Stanton, contra.
   Grant, J.

Error to Municipal Court of Cleveland.

The plaintiff in error was arrested, tried, convicted and sentenced in the court below for a violation of Section 12940 of the General Code of Ohio, which provides as follows:

“Whoever, being the proprietor or his employee, keeper or. manager of an inn, restaurant, eating-house, barber shop, public conveyances by land or water, theater or other place of public accommodation and ardusement, denies to a citizen, except for reasons applicable to all citizens and regardless of color or race, the full enjoyment of the accommodations, advantages, facilities or privileges thereof, shall be fined.”

This statute embodies the criminal part of that portion of the legislation of Ohio once known as the civil rights act. Its policy and purpose are well known and the courts have consistently administered it in the spirit of its adoption ,and intent, which was to prevent discrimination in public enjoyments and privileges, based on favoritism of race, color or other adventitious differences among those entitled to be served.

We have examined the bill of exceptions taken at the trial and find from it that the accused kept a place which is properly designated in the affidavit as a place of public amusement known as a dance hall. To its privileges and advantages he customarily admitted those who applied for admission and who paid his price, except in case of those whom he debarred if they did not pass an examination made by him and the test of which may fairly be concluded was based on the line of race. When several citizens offered their money, he inquired if they were Jewish. III they said they were, he refused them admission but told them to come some other day. He did not inquire for the race or nationality of others, but seems to have admitted them without test.

It does not concern us at all to inquire what the purpose or motive of the accused was in thus limiting his line of inquiry and exclusions to patrons of Semetic extraction, whether to favor the prejudices of a more favored set of customers, or on other grounds. Certain it is, in our estimation, that his place was one of public accommodation within the purpose and terms of the statute in question, and that he denied its privileges to men of one race but gave them to those of other races, if they asked for them and had the money required for their use and enjoyment.

Such being the conclusion of fact which the evidence tended to establish, the judgment of conviction is supported by it and is not contrary to it.

As to the specific assignments of error made in the brief, we are satisfied that the affidavit upon which the accused was prosecuted and his conviction had was sufficient in law and not defective in any material point.

The motion to strike testimony from the record was properly refused, and the trial court did not err to the prejudice of the accused in admitting evidence over his objection. The motion in arrest of judgment and for a new trial were severally properly overruled.

The most persistent race of which recorded history gives any account, has overcome too many obstacles to be defeated of a right secured to it by statute by any of the excuses offered by the dancing master in this record.

What he did was in plain violation of the letter and policy, of the law — intentionally so, in our opinion. Siicli is the finding and conclusion of a majority of the court.

The judgment is affirmed.

Lawrence, J., concurs; Dunlap, J., dissents.


author: Jones (Oliver B.), J.

text:
    ESSENTIALS OF A CONTRACT TO PURCHASE REAL ESTATE.
    Court of Appeals for Hamilton County.
    Laudt Realty Co. v. John F. Parchmann.
    Decided, February 7, 1916.

      What an Enforcible Agreement to Purchase Real Estate must Contain ■ — Parol Evidence Inadmissible, When — Duplicate Receipt for Earnest Money Insufficient under the Statute of Frauds.

    1. A contract for the purchase of real estate is not sufficient under the statute of frauds, unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself, or some other writing to which it refers, without the necessity of resorting to' parol proof.
    2. A duplicate receipt for earnest money which has been paid, which duplicate receipt has been signed by the intended purchaser and retained by the owner, and which expresses no contract for purchase except by implication, and fixes no terms whatever in regard to a sale beyond the mere naming of the price and identifying of the property, and which was not intended by the parties to • embody such terms or to operate as a contract, is not a sufficient contract, under the statute of frauds, to bind the purchaser.

      Edward A. Hafner and W. G. Muhihauser, for plaintiffs in error.

      G. J. McDiarmid, contra.
   Jones (Oliver B.), J.

The contract under which plaintiffs were employed by defendant, as real estate agents to sell his house and lot, bound defendant to pay them a commission of two per cent, on the gross amount of such sale, if said property was sold during the period fixed in said contract. Plaintiffs found a party who in anticipation of signing a contract for the purchase of said real estate made a payment of fifty dollars as earnest money to defendant and took his receipt for same. Afterwards said intended purchaser changed his mind and refused to sign the contract for purchase or to complete the purchase. He had, however, signed a duplicate of the receipt for the earnest money which had •been paid, which duplicate receipt'-was retained by defendant, and which is in the following words:

“Cincinnati, 0., March 6,-11.
“Received from August F. Nolte the sum of Fifty dollars as p.art payment of earnest money on property belonging to John F. Parchmann at 4433 Colerain ave., Cin. 0., valued at Two thousand five hundred and fifty dollars $2550.00. Balance due Two thousand five hundred dollars. $25001.00.
“ (Signed) John F. Parchmann,
“August F. Nolte.”

It is contended this is a sufficient contract to bind the purchaser. In the opinion of the court this receipt is not such a memorandum of the agreement between the parties as is required under the statute of frauds, Section 8621, General Code. A contract under the statute of frauds is “not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, without the necessity of resorting to parol proof.” Kling, Admr., v. Bordner, 65 Ohio St., 86.

This receipt expresses no contract for purchase except by implication. It fixes no terms whatever in regard to the sale beyond the mere naming of the price and identifying the property, nor was it intended by the parties to embody such terms or to operate as a contract, it having been agreed that a written contract would be prepared by the real estate agent- and signed on the evening after this payment.

No sale was effected, and no enforceable contract was procured, and plaintiffs therefore were not entitled to recover under the terms of their contract with defendant. Pfantz v. Humberg, 82 Ohio St., 1.

Judgment- affirmed.

Jones (E. H.), J., and Gorman, J., concur.


author: Farr, J.

text:
    APPEAL OF ACTION TO FORECLOSE A MECHANIC’S LIEN.
    Court of Appeals for Guernsey County.
    H. E. Eggar and H. B. Pierce, Partners Doing Business Under the Firm Name of Egger & Pierce, v. H. C. Corwin et al.
    Decided, November 15, 1917.

      Mechanic’s Lien — Action to Foreclose — Right of Appeal.

    An action to foreclose a mechanic's lien is equitable in character and therefore appealable.

      Charles 8. Sheppard, for the motion.

      Fred L. Rosemond, contra.
   Farr, J.

Heard on motion to dismiss appeal.

On the 10th day of August, A. D. 1915, H. E. Eggar and H. B. Pierce, partners doing business under the firm-name of Eggar & Pierce, brought an action in the court of common pleas of this county, against the defendants, IT. C. Corwin, Edward Foreman, W. E. Laughlin, Estella Laughlin, Lauer True & Co., and the Eastern Ohio Railway Co., seeking to recover the sum of $611.34 from H. C. Corwin and Edward Foreman, and to foreclose a mechanic’s lien against the property of the Laughlins described in the petition. It is alleged in said petition that Corwin and Foreman; as principal contractors, contracted with Laughlins for the construction of a building upon said premises, and that plaintiffs, under contract with Corwin and Foreman, furnished material used in the construction of said building for which payment was not made, and to secure which they perfected a material-man’s lien under the statute; other parties were made defendants, who filed-answers and cross-petitions likewise claiming liens. W. E. Laughlin filed an amended answer, containing a number of grounds of defense to-which a reply was filed and so the issues were made up, trial had, judgment entered, appeal to this court, and .a motion filed to dismiss the appeal upon the ground that there is no right of appeal in snch case. If the right exists, it is under favor of Section 6, Article IY, of the Constitution of Ohio, as amended in A. D. 1912, effective January 1, A. D. 1913, which reads in part as follows: “The courts of appeals shall have # * * appellate jurisdiction in the trial of chancery cases.” Therefore the issue here is whether or not an action to foreclose a lien is a “ chancery case. ” •

A mechanic’s lien is purely a creature of statute (27 Cyc., 17, 317, 318, 321, Jones on Liens, Section 1184), and was unknown at common law or in equity; however the right thereto is favored by Section 33, Article II, of the present Constitution of Ohio, which provides that laws may be passed to secure to mechanics, artisans, laborers, sub-contractors and material-men their just dues by direct lien upon the property upon which they bestow labor, or for which they furnish material; and that no other constitutional provision shall limit this power. The foregoing has been amplified in Ohio by the present lien law for the benefit of contractors, sub-contractors, laborers and material-men, as found in 103 O. L., 369-379, and as amended 105-106 O. L., 522-534, new Sections 8310 to 8323-10, G. C. It must be conceded that this right, though statutory, is based upon the equitable doctrine that one who contributes labor or furnishes material used in the construction of a building, and for which payment is not made, may perfect and have a direct lien upon such building and real property on which it is located, and the procedure to subject such property to the satisfaction of the claim is regulated by statute in most jurisdictions (Jones on Liens, Section 1559). The first mechanic’s lien law was passed in'Ohio, January 1,1823 (3 Chase, 2160), and was effective within the corporation of Cincinnati only. Section 3 of said act provides that every person or persons, holding such lien might proceed to obtain a judgment thereon according to the course of legal proceedings in like cases. This original act provided that the judgment should be obtained by “legal proceedings as in like cases. ’ ’ It doubtless was the legislative intent to make the procedure statutory, but the basic principle of the statute was; beyond all question, equitable in character as indicated especially by Section 1, and as well by other parts of said act. By subsequent legislation February 5, 1833, tbe provisions of said law were extended to Hamilton county and later amplified and made of general application (March 11, 1843, 41 O. L., 66, S. & C., 833). However the equitable principle upon which the original act rested was not changed, although Section 8 provides, as did Section 3 of the former law, that judgment might be obtained for the amount due according to the course of legal proceedings in like cases. If any doubt existed as to the remedy it was set at rest by the enactment of a remedial amendment to the foregoing, March 25, A. D. 1851, 49 O. L., 108, S. & C., 837, entitled “Remedy of lien holder in chancery,” and reads in part as follows:

“ (18) Section 1. Be it enacted by the General Assembly of the state of Ohio, that any person or persons, who now hold or shall hereafter hold a lien, under the above recited act, may in addition to the remedy therein provided for, proceed by petition in chancery as in other eases of liens, against the owner or owners of and all other persons interested in * '* * any such * * # house, mill, manufactory, or other building, * * * and the lot or lots of land on which the same shall stand and obtain such final decree therein for the rent or sale thereof, as justice and equity may require.” * * #

It is of more than passing interest to note that the language of S'ection 8323, G. C., which is a part of the Ohio lien law in force is almost verbatim with the above, excluding some matters later included to meet new conditions. It reads in part as follows:

“Section 8323. Any person holding a mechanic’s lien, in addition to the remedies herein provided for, may proceed by petition as in other cases of liens, against the owner and all other persons interested * * * in any such house, mill, manufactory, or other building * * * and the lot of land on which it stands * * # and obtain such judgment therein for the rent or sale thereof as justice and equity may require. ” * * *

It might be urged, however, that the foregoing omits “in chancery” after the word petition and uses the word “judgment” instead of “final decree” near the conclusion. It was not necessary to continue the words “in chancery” because by the adoption of a code of civil procedure March 11, A. D. 1853, effective July 1, A. D. 1853, 51 O. L., 57, the distinction between actions at law and suits in equity, and the forms of all such actions and suits theretofore existing, were abolished in Ohio and in their stead it was provided that there should be but one form of action to be called a civil action which it is provided in Section 55 must be commenced by filing a petition. That it was not the legislative intent to eliminate the chancery oí equitable feature, is clearly disclosed by the following part of said Section 8323:

“Any person holding a mechanic’s lien, in addition to the remedies herein provided for may proceed by petition as in other cases of liens.”

Therefore, the words “in addition to the remedies herein provided” must be construed to mean that the statutory remedies are merely cumulative, and “may proceed as in other cases of liens” only strengthens the contention that it was not the intent to alter the equitable character of the remedy. Especially is this true in the light of the further provision that the lien holder may “obtain such judgment * * as justice and equity may require.” Equitable relief can only be granted in a proceeding at least partially equitable in character. The word .“judgment” is substituted in said Section 8323 for “final decree” in the former law; however, this too was changed by the adoption of the Code of A. D. 1853, of which Section 370 (51 O. L., 118) provides that ‘ ‘ a judgment is the final determination of the rights of the parties in an action.” Therefore “judgment” is the proper word, although there may be .a permissive use of it interchangeably with “final decree.”

Obviously it was not the legislative intent, by the adoption of the code of A. D. 1853, to deny the right to an action legal or equitable where it had formerly existed by statute and the mode id procedure was prescribed, at least until the Legislature should otherwise provide;' and so it is indicated in Chapter VI of said code, Section 605 (51 O. L., 161), which reads in part as follows:

_ . “Where by statute, a.civil action, legal or equitable, is given, '"and’ the mode-of proceeding therein is prescribed, this code shall not affect the proceedings under such statute, until the Legislature shall otherwise provide.” * *

The foregoing was a saving provision of said code within the purview of which the former mechanic’s lien law (S. & C., 837) comes easily, and so it is observed 'by Mr. Seney in his Ohio Code of Civil Procedure at page 736 as follows:

“An action under the mechanic’s lien law, by a mechanic, to recover from the owner a sum due him for services rendered to ca contractor, is one of the cases in which a right of recovery by action is given by a statute anterior to the code, prescribing the form of the action, but not fixing the proceedings in the action given. Chapman v. Rannels, 2 Western Law Monthly, 142.”

The above case of Chapman v. Bannels was decided June, A. D. 1859, after the adoption of the code. No legislative change has ever been made in the former lien law (S. & C., 837), so far as its equitable feature is concerned. It is also provided in Section 8323 that a lien holder may proceed “as in other cases of liens.’■ A mortgage is a creature of statute but creates and is a lien, and its foreclosure is purely equitable.

In harmony with the foregoing, Mr. Jones in his worls on liens, Volume 2, Section 1559, observes as follows:

“Whether the proceedings to enforce a mechanic’s lien are legal or equitable depends, of course, -upon the terms of the statutes providing the remedy. The statutes of several states assimilate the proceedings to enforce such lien to the equitable action to foreclose a mortgage, and under such statutes the proceeding is essentially a proceeding in equity. ”

The author might well include Ohio among said states because'the above provision “as in other cases of liens” clearly assimilates the proceeding to enforce a mechanic’s lien to the foreclosure of a mortgage, which is one of the “other liens” contemplated in said section. Bearing upon the issue under discussion here, is the ease of Wagner v. Armstrong et al, 93 O. S., 443, in which Nichols, C. J., in an able opinion discusses among other things, “jurisdiction - on appeal,1’ and at page 450 pertinently observes as follows: .....

“Appealable cases, therefore, must be such cases as are now recognized as equitable in their nature; and perhaps the better way to express it would be, cases that were recognized as equitable actions before the adoption of the.code of civil procedure; for, while our code established under one grand division all. actions, whether of an equitable or a legal nature, and called them civil actions, yet there wás no attempt to change the nature of the remedy.”

' An action to foreclose a mechanic’s lien was recognized as equitable before the adoption of the code, because it was specially provided (49 O. L., 108, S. & C., 837) that a lien holder might proceed by petition in chancery. It is further urged that being of statutory origin, it can not at the same time be equitable in character; however, it is observed in 27 Cyc. at page 17, as follows :

“A mechanic’s lien is a species of lien created by statute in most of the states, which exists in favor of persons who nave performed work or furnished materials in and for the erection of a building. It is not a general, but a particular lien, and is in its nature peculiar and of an equitable character, and has been said to be somewhat analogous in its aims to the equitable lien of a vendor for unpaid purchase money of lands sold. ’ ’

While statutory, its equitable character is recognized and it is further observed at page 321 that under some statutes the remedy for enforcement has been prescribed as an ordinary action at law, and such remedy has been held to be exclusive of the jurisdiction of a court of equity, but such was not the fact in the statute of this state prior to the adoption of the code for it was specially provided as above stated that the proceeding might be by petition in chancery; morever the jurisdiction of courts of equity has been remodeled in England by statute, and in most of the states of the United States, as well as in the Federal courts, it depends upon special statutory enactments; 6 Am. & Eng. Ency. of L. (1st Ed.), 692.

In line with the foregoing is the above case of Wagner v. Armstrong, 93 O. S., 443, in which Nichols, C. J., observes at page 450 as follows:

“The question yet remains, however, does the fact that there has been provided a statutory proceeding in partition operate to exclude partition from the category of chancery eases': The authorities on this subject are not all one way; but it can be ascertained by an independent examination of the authorities that the great weight favors the doctrine that the statutory remedy is cumulative and does not supersede the original jurisdiction in equity.”

The learned judge then cities in support of the foregoing, 1 Story’s Equity (13th Ed.), par. 658; Freeman on Co-tenancy and Partition (2d Ed.), 559, where it is stated in "the latter:

“The remedy thus created by statute is, we think, generally, but not universally, considered as cumulative, and as in no way divesting courts of equity of their jurisdiction over the same subject matter.”

Also Wright v. Marsh, 2 G. Greene (Iowa), 104; Cram et al v. Green et al, 6 O., 429; 1 Pomeroy, Section 62; Feuchter v. Keyl et al, 48 O. S., 357; City of Zanesville v. Fannan, 53 O. S., 605.

Following the suggestion „ of Nichols, C. J., in Wagner v. Armstrong, supra, at page 456, there will be no attempt here to categorically declare what constitutes a chancery case. However, there can be no question but that liens originated primarily in equitable principles, and so it is observed in 1 Pomeroy, page 95, as follows:

“Secondly, those cases in which the relief is not a general pecuniary judgment, but is a decree of money to be obtained and paid out of some particular fund or funds. The equitable remedies of this specie are many in number and various in their external forms and incidents. They assume that the creditor has, either by operation of the law or by contract, or from some sets of omissions of the debtor, a lien, charge, or incumbrance upon some fund or funds belonging to the latter, either land, chattels, things in action, or even money; and the form of the remedy requires that this lien or charge should be established, and then enforced, and the amount due obtained by a sale total or partial of the fund, or by a sequestration of its rents, profits and proceeds.”

And at page 120 the author discusses equitable remedies as follows:

‘ ‘ These exclusive remedies may be granted in order to protect, maintain and enforce primary rights, estates or interests, which are legal as well * * * as equitable. ’ ’

And again at page 152 it is said:

“It is one of the distinctive and central principles of the equity remedial system that it deals) with property rights, # * * p[ens j-ather than with mere personal rights. ’ ’

And again at page 153 the same author observes:

“A fourth class embraces those remedies which establish and enforce liens and charges on property rather than rights and interests in property either by means of a judicial sale of the property itself which is affected by the lien, and the distribution of its proceeds, or by means of a sequestration of the property and an appropriation of the rents, * ■* * until they satisfy the claim secured by the lien.”

And- as a summary of the foregoing it is observed at Section 167 as follows:

“In addition to the liens above-mentioned which belong to the general equitable jurisdiction, the legislation of many states has created or allowed other liens which often come within the equity jurisdiction in respect at least to> their means of enforcement. The so-called mechanic’s liens may be taken as the type and illustration of this class. ’ ’

In full accord with the foregoing is Gilchrist v. Railway Co., 58 Fed., 708, 710.

It is quite clear, therefore, that while a mechanic’s lien is regulated by statute in Ohio, that its equitable character is not thereby destroyed. A legislature may, at will, create what might be termed “statutory proceedings,” some of which have properly been held not appealable, but a legislature can not by such special or statutory proceeding destroy the right of appeal in a chancery case, and so it is indicated in the very recent case of Manning v. Village of Lakewood et al, 94 O. S., 85. This was a proceeding brought in the Court of Common Pleas of .Cuyahoga County to enjoin the .collection of certain special assessments alleged to have been levied by the village of Lakewood. Issue was joined, trial had, judgment entered, and an appeal taken to the court of appeals where, oh motion, the appeal was dismissed because not appealable under the present Constitution of Ohio, and for the reason that the remedy is statutory. The Supreme Court reversed the court of appeals and among other things held that:

“The jurisdiction conferred by the statute to restrain the collection of illegally assessed taxes and assessments, being an equitable jurisdiction, to be exercised by the chancellor upon equitable principles, it follows that courts of appeals have appellate jurisdiction in the trial of such eases. ’ ’

The above ease is quite similar to the one at bar; and st'ill another in full accord with the foregoing, is Improvement Co. v. Malone, 78 O. S., 239. Attention is called to Dunn & Witt v. Kannmacher, 26 O. S., 497, which was a proceeding under Section 5 of the former mechanic’s lien law (S. & C., 834), which provided that the remedy should be “an action of money had and received” which made an issue triable by jury and is therefore not applicable in the instant case, and especially because said statute is no longer in force. It is, however, interesting to note that prior to the amendment of the Constitution of Ohio in A. D. 1912, it was twice held in this jurisdiction under favor of Section 5226, R. S., now Section 12224, G. C., that the right of appeal existed in an action to foreclose a mechanic’s lien; it was so held Nov. 26, 1906, in Jesionowski v. Wismiewski, 21 C.C. (N.S.), 413, and May 17, 1909, in Thompson v. Rosenberg et al, 16 C.C.(N.S.), 341. These" cases are interesting principally for the reason that they primarily recognize the equitable character of a proceeding to foreclose a lien even where personal judgment is sought also; and yet in the case at bar no personal judgment is sought, nor could it be in any event by Eggar & Pierce against the Laughlins, only the" foreclosure of the lien, making the issue as against said Laughlins purely an equitable one, though regulated by statute. It would not be urged for a moment that any personal judgment could have been taken against the Laughlins. *

It is contended however that the case of Hollowell v. Schraden et al, 26 C.C.(N.S.), 97, is decisive here. This ease was decided July 14, 1916, and the syllabus reads as follows:

“An action to foreclose a mechanic’s lien is not cognizable in equity and therefore not appealable.”

This was by a divided court and on the 27th day of June, A. D. 1917, was reversed by the Supreme Court of Ohio without report, 96 O. S., 599, and since the only issue raised was the right of appeal in an action to foreclose a mechanic’s lien, the reversal of the cause determines that right.

The conclusion, therefore, is irresistible that while in Ohio, a mechanic’s lien is wholly a creature of statute, that the remedy is not exclusively legal but equitable as well. In view of all the foregoing it follows that the motion to dismiss the appeal must be overruled, which is done accordingly.

Pollock, J., and Metcalfe, J., concur.


author: By the Court.

text:
    REDUCTION OF ALIMONY ALLOWANCE.
    Court of Appeals for Hamilton County.
    Dora Bruner v. John E. Bruner et al.
    Decided, April 29, 1918.

      Alimony — Form of Application for Change in Allowance Immaterial, When — Presumption as to Action of the Court Below — Changed Conditions.

    1. It is immaterial that the application for reduction of an allowance of alimony is made in the form of a motion rather than a petition, where the motion has been regularly filed and sets forth the grounds upon which a modification of the original order is asked.
    2. At the hearing of such an application a presumption arises, in the absence of a bill of exceptions containing all of the evidence, that the court had before it evidence as to property out of which an allowance could be made and that the allowance was made in accordance with law.

      3. Changed.conditions which justfy a reduction of the original allowance may not justify a discontinuance of the allowance altogether.

      Frank E. Eunkel, for plaintiff in error.

      Alfred G. Allen and Lorbach $ Garver, contra.
   By the Court.

Error to the Court of Insolvency of Hamilton County.

On February 19, 1910, a divorce was granted plaintiff in error, and a decree for alimony of sixty dollars per month payable monthly was allowed, which alimony was regularly paid.

On June 11, 1917, a motion was filed by defendant asking for a modification of the decree for alimony, setting forth changed conditions claimed to justify same together with an affidavit in support of said motion. On October 6, 1917, .after the hearing of same said motion was sustained and a decree was entered terminating the payment of alimony. The petition in error here seeks to obtain a reversal of the order terminating the alimony.

It is urged by plaintiff in error that the question of modification could not be raised 'by motion but should be by petition only. "We are of the opinion that the motion, having been regularly filed, setting forth the ground upon which the modification is asked and setting forth the changed conditions, is sufficient to give the court jurisdiction to hear and determine the question. The mere naming of the paper writing a "motion” instead of a "petition” could not deprive the court of such jurisdiction.

The question as to the amount of property owned by the defendant at the time of the granting of the divorce is not properly raised here. In the absence of a bill of exceptions containing the evidence introduced at the original hearing of the divorce case, this court will presume that the trial court had before it evidence of property out of which said court could order the allowance made at that time, and it will be presumed that it made the award in accordance with the law. Lape v. Lape, 28 O. C. A., 108.

The right to modify the decree for alimony would therefore rest upon the ground of changed conditions. We hold that the evidence shows such changed conditions as to justify the lower court in sustaining the motion to modify the decree, but it does not justify the termination of the decree for alimony as a whole. The court would have been justified in reducing the alimony, under the changed conditions, to the payment of the amount of thirty dollars per month.

The judgment of the insolvency court will be modified and the payments of alimony continued from and after October 6, 1917, in the sum of thirty dollars per month, payable monthly.

Jones, P. J., and Hamilton, J., concur.


author: POWELD, J.

text:
    LIABILITY FOR PROPERTY DESTROYED BECAUSE INFECTED WITH CONTAGIOUS DISEASE.
    Court of Appeals for Morrow County.
    Adam Clouse et al, as the Board of Health of Canaan Township, Morrow County, v. James Coykendall.
    Decided, May Term, 1918.

      Board of Health — -Liability for Property Destroyed in Preventing the Spread of Contagious Disease — Necessary Allegations and Proof— Character of Property Which may be Destroyed — Failure to Separate Issues in Charge to Jury.

    1. In an action against a board of health, for the value of goods or property destroyed to prevent the spread of any contagious disease, it is necessáry to both allege and prove by a preponderance of the testimony that the property destroyed was infected, and that it could not be made safe by disinfection, and that it was destroyed at the expiration of the quarantine period .by the board of health, either individually or in accordance with orders issued by them.
    2. Liability does not arise for property destroyed where it is of such a nature that it could have been cared for without permitting it to become infected.
    3. Failure of a trial court to separate the Issues of fact from the issues of law in its charge to the jury, and to' properly define such issues, constitutes reversible error.
   POWELD, J.

The parties to this proceeding in error stand in the inverse order to that in which they stood in the court below; the plaintiffs in error were defendants in that court and the defendant in 'error was plaintiff.

The right to a recovery is based upon the provisions of Section 4434 of the General Code, providing for the care of persons .afflicted with any contagious disease. The case presents two principal contentions, and we are asked to reverse the judgment of the court below upon such contentions:

First. The charge of the court is complained of. Whether 'or not it complies with the requirements of the statutes and decisions relating to court procedure. And—

Second. Whether or not a easel which would entitle the plaintiff to recover is set out in the pleadings and proved by the evidence offered.

The petition, as it was said above, was based upon the provisions of Section 4434 of the General Code, which reads as follows:

‘ Section 4434. Such board may destroy any infected clothing, bedding, or other article which can not be made safe 'by disinfection, and shall furnish to the owner thereof a receipt, of which it shall keep .a full and accurate copy, for articles destroyed, which receipt shall show the number, chairacter, condition and estimated value of the articles destroyed. ” * * *

This act is an attempted exercise of what is generally designated as the police power of the state, and is intended ,to protect the general public from the evils growing out of infectious or contagious diseases; it prescribes a plan of procedure and designates the tribunal to carry the plan into effect. This 'tribunal is the board of township trustees, who become by virtue of that offiice the board, of health for so much of the township as lies outside of .any municipality. , Each, municipality, is supposed to have cither a board of health or a health officer of its own, while the duties belonging to a board of health outside of such municipality are placed by statute upon the.township trustees. This suit is based ,.on the alleged action of the board of health in destroying cream of plaintiff’ of the v'alue of $70, and one hundred dozen eggs of the value of $30. There is a second cause of action set up in the petition by which plaintiff claims the sum of $50 from the said defendants for care, boarding .and nursing furnished one Flossie Waters, while quarantined in his house during the prevalence of the disease of small-pox, and for money paid for her doctor 'bill while so quarantined.. It appears from the averments of the petition and the proof, that the said Flossie Waters was without means to care for. herself or to pay her doctor 'bill, and that the care, nursing and boarding was furnished her by the plaintiff and that he paid her doctor bill while so quarantined. In the opinion of the court the second cause of action is well pleaded and sufficiently proved. The evidence, however, as we think, fails to sustain the first cause of action. There is no averment and ho testimony of any sort, that the property destroyed was infected with small-pox, or that it could not be made safe by disinfection; neither is there any proof that the property was destroyed by the board of health individually, or under its direct order. In order to make a cause of action these things should both be alleged and proved by a preponderance of the evidence. The court is of opinion that the first cause of action is not sustained by sufficient proof.

The second contention insisted upon is that the court did not state the issues presented by the pleadings with that particularity required 'by law, and that as given the charge is misleading and for want of more particular statement is .prejudicially erroneous.

On examination of the charge, the court is of the opinion that the same was. incomplete in that it. does not define .to the jury what the issues to be tried really were, nor were they properly instructed as to the proof necessary to maintain such issues. We think such instruction as was given, was properly given, but that the application of the same to the issues was not made by the court in its charge to the jury. The Supreme Court has held that it is the imperative duty of the trial court to separate issues of fact from issues of law and define the same .and that proper instructions be given as to the proof necessary to sustain any such issue, so presented. In this case the issues are -made up by a-general denial- of the averments..of the petition. If the petition states a cause of action, it shows that the property alleged to have been destroyed:

First. W.as infected with small-pox contagion.

Second. That it could not be made safe by disinfection; ,and

Third. That it was destroyed by the board of health, or under its orders.

Those constitute, as we think, three distinct issues to be presented to the jury and tried by them under proper instructions from the court. The court is of the opinion that 'because the first and second of these issues were not defined or stated to the jury separately in the general charge, the same was erroneous and misleading. Railroad v. Lockwood, 72 O. S., 586.

In addition to what is said above it seems to the court that an issue of law is presented by these pleadings, as to whether or not plaintiff was entitled to recover at all without showing that the property so claimed to be infected was destroyed by the board of health, or by its order, at the expiration of the time of quarantine, that being the time prescribed by law, when the infected property should be fumigated or destroyed. It .appears by this record that when the quarantine card was first placed upon the residence of the plaintiff some conversation was had as to what should be done with the eggs and the cream; that the members of the board of health .at that time said that it was unlawful to sell the same, but did not make any provision, however, that they should be cared for, or looked after by persons other than the plaintiff or his family, most of whom were during the time of quarantine afflicted with the disease of small-pox; and .acting upon this advice the plaintiff fed the cream, or so much of it as was not needed for his own family use, and the eggs, to his hogs.

The court is of the opinion that it is not the intention of the law that property of this kind, that can be eared for without becoming infected, should be cared for otherwise than by being destroyed while it is accumulating; and then it is a question of doubt as to whether or not in such circumstances the board of health would be liable for the value thereof. This question arises solely upon the weight of the evidence, as no question of this kind was made hy the pleadings.

It was further said in argument that the verdict of the jury and the judgment ought to he sustained under the provisions of Section 11364 of the General Code, as the record shows that by such judgment substantial justice had been done. The provisions of this statute are often misapplied and ,a court can easily usurp the functions of the trial court and a jury, by simply certifying that substantial justice has been done. In a case like the one at bar, it is wholly the province of the jury to determine what is substantial justice between the parties on the acts presented. They must do this,' however, on a fair and impartial trial under the rules of legal procedure. When this has been done the verdict ought to stand, or if the facts are practically agreed on the court may determine upon its own initiative that substantial justice has been done. We think on the record as presented in this case, that on the second cause of action substantial justice was done, and if it stood alone it would be affirmed upon that ground. But upon the first cause of .action the court can not certify that substantial justice was done as 'between the plaintiff and the general public represented by the board of health.

For the reasons stated the court is of opinion that the judgment should be reversed and that the .cause should be remanded-to the court of common pleas for a new trial and such other proceedings as are authorized by law.

Judgment reversed.

•Houck, J., and Shields, J., concur.


author: Hamilton, J.

text:
    RECOVERY FROM PULLMAN COMPANY OF MONEY TAKEN FROM BERTH.
    Court of Appeals for Hamilton County.
    The Pullman Company v. Henry W. Roos.
    Decided, November 19, 1917.

      Sleeping Car Companies — Nature of the Contract Entered Into with Passengers — High Degree of Care Required in Protection of Passengers — Company Liable for Money Taken by a Porter.

    1. While a' claim against the Pullman company for money stolen from the berth occupied by a passenger might be prosecuted as for tort, a petition which sets up the contractual relation which by implication follows the purchase by an intending passenger of a ticket from an agent of the Pullman company makes the claim one arising upon contract and brings it under the six year statute of limitations.
    2: Where money belonging to a passenger occupying a Pullman berth, was wrongfully taken from the berth by a porter while he was • engaged in making up the berth. Held: That such act was done by the porter while acting within the scope of his employment.
    3. A finding by the jury that $190 was a reasonable sum for the plaintiff to take with him, for the expenses of a trip by himself and his wife from Cincinnati to New York and return, was justified.

      Mortimer Matthews, for plaintiff in error.

      Harry H. Friedman and Jacob S. Hermann, contra.
   Hamilton, J.

Error to the Superior Court of Cincinnati.

The plaintiff below, defendant in error here, recovered a judgment against the defendant, the Pullman Company, on account of the loss of a sum of money amounting to $190 alleged to have been taken by the porter on a car of the Pullman Company from a berth which was or had been occupied by the plaintiff and his wife at or immediately preceding the time that the money was taken, After reciting the corporate power of tbe-Ppllm^a-.Oompany and the nature of its business the amended petition contains the following allegations:

“Plaintiff further says that on or about May 12th, 1911, he boarded a sleeping car belonging to, operated and maintained by the defendant company in the city of Cincinnati, and for a valuable consideration paid by him- to the defendant company, he was provided with a-seat known as lower berth number twelve for the purpose of- occupancy -and slumber- during plaintiff’s journey from the city of Cincinnati, Ohio to the city of New York, state of New York, and that said sleeping car was known as, ear number two and was attached to train number two operated by the Pennsylvania Railroad Company and that plaintiff, during said journey used and occupied said berth known as berth number twelve in said car as .aforesaid.
“Plaintiff further says that defendant was guilty of a breach of its contract with plaintiff in that it carelessly and negligently failed to guard said berth and car while he was riding thereon. Plaintiff further says that defendant failed and neglected to provide proper, honest, trustworthy and careful employees on said ear to perform the services required of it in the discharge of its contract with plaintiff.
“Plaintiff further says that by reason of the payment of said valuab’e consideration defendant agreed and undertook to allow plaintiff and his wife to use lower berth number twelve on said ear for the purpose of occupancy and slumber; that among the servants and employees nrovided by the defendant, to perform its contract with plaintiff in making up the berth for the use of plaintiff and his wife during the night, and to renlaee the bedding of said berth and restore the same-in condition for day travel, was a servant and emuloyee of said company designated and known as the porter. That on or about May 12, 1911, the porter on said ear did convert said seat into -a berth, and that on or about the 13th day of May, 1911. replaced the bedding in said berth and restored it to a seat for day travel, and that while engaged in his duties of replacing said bedding and restoring said berth as aforesaid, said porter, while acting as aforesaid in the course of his emuloyment, did wrongfully and unlawfully take .and convert to his own iwe, from a niPow lying in said berth the sum, of one hundred and ninety ($190) do’lars which was the property of the plaintiff and which plaintiff had taken with him on said journey -to use for reasonable traveling expenses.”

Following the above allegations is a prayer for judgment for the sum of $19 Ql with interest.

The defendant challenged the sufficiency of the amended petition both by demurrer and answer, urging the proposition that the claim was one for tort and was barred in four years under the statute.

We can not agree with this proposition. While the plaintiff could undoubtedly have prosecuted this action as for tort, he does not do so, but sets up the contractual relation which impliedly follows the purchase by a passenger of a ticket and the sale to him of a ticket by the company’s agent as set forth in the petition. That such an implied contract arises from this transaction there can be no doubt.

Elliott on Railroads, Volume 4, Section 1618, lays down the following principle of law:

“ The nature of the serviees'rendered by sleeping car companies is public, and they are in some measure instrumentalities of interstate commerce, and hence considerations of public policy have weight in determining what their obligations are and the general character of their duties. We think that principle requires the conclusion that in all matters peculiar to sleeping cars, and their appurtenances, a sleeping car company owes to those with whom it contracts a special and distinct duty. ’ ’

And in Lewis v. New York Sleeping Car Co., 143 Mass., 267, on page 272, we find the following language in the opinion of the court:

“When a person buys the right to the use of a berth in a sleeping car, it is entirely clear that the ticket which he receives is not intended to, and does not, express all the terms of the contract into which he enters. Such ticket, like the ordinary railroad ticket, is little more than a symbol intended to show to the agents in charge of the car that the passenger has entered into a contract with the company owning the car, by which he is entitled to passage in the ear named on the ticket.
“Ordinarily the only communication between the parties is, that the passenger buys, and the agent of the car company sells, a ticket between two points; but the contract thereby entered into is implied from the nature and usage of the employment of the company.”

This we think to be the law, and this view is supported by abundant authority. While some of the allegations of the amended petition sound in tort, yet considering the amended petition as a whole we think it is sufficient to support the claim as arising on contract and therefore coming within the six year limitation under the statute. And further construing the amended petition as supporting a claim arising on contract we also-find that-a breach of the contract is sufficiently alleged.

It therefore -follows’ that'the amended petition stated a good cause:of action and the demurrer was properly overruled; and the court did not err in sustaining the demurrer to this .ground of défense in the answer.

It is contended by plaintiff in error that there- was no evidence that the theft of the money was within the scope or authority of the porter. :

In the case of Bonser v. Pullman Co., 19 C.C.(N.S.), 266, this court held:

“A sleeping-car company is not an insurer of the safety of property belonging to its passengers, although held to a high degree. of care in its protection.

Under this rule it was the duty of the company to employ competent and trustworthy employees and to exercise a high degree of care in the protection of 'the defendant in error and his property. The evidence discloses that the wife of defendant in error pinned the money in the pillow and placed it by the wall on the inside of the berth occupied by defendant in error and herself; that the money was-taken from this pillow while the husband and wife were in the dressing rooms of the Pullman car; that the porter m,ade up the berth while they were dressing, and the wife upon her return to the berth immediately discovered the loss. The only rational conclusion is that if the porter took the money he took it while engaged in making up the berth, and making up the berth was one of the very things for which he was employed, and the theft — if by .the porter — having occurred while he was making up the berth, it must be held that it was done in the course of his employment.

On this proposition the ease at bar presents a much stronger báse-than many óf the' authorities cited in the briefs of counsel. As to whether or not the porter took the money, was a question for the jury, and under an examination of the evidence we are unwilling to disturb the judgment as being manifestly against the weight of the evidence.

Defendant in error further complains of the charge of the court to the effect that the plaintiff might recover such a sum as the jury upon the evidence should find to have been a reasonable sum to be carried by the plaintiff in view of the journey that was being undertaken by him, on the ground that there was no evidence tending to show what such a reasonable sum would be. In our opinion the jury were fully justified in finding that the sum of $190 for the defendant in error to carry with him for expenses on a trip of himself and wife from Cincinnati to New York, was not an excessive sum.

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

Jones, P. J., and Gorman, J., concur.


author: Powell, J.

text:
    WHEN TITLE TO LAND VESTS WHERE DEVISED SUBJECT TO A LIFE ESTATE,
    Court of Appeals for Perry County.
    Margaret Hammond v. Vincent A. Hammond and Edward Hammond.

    Decided, April Term, 1918.

      Descent — Determination of the Rights of the Relict of a Devisee Whose Death Preceded that of the Life Tenant — Section 8573.
    Lands were devised to three brothers, subject to the life estate of their mother. Prior to the death of the mother one of the brothers died intestate and without issue. The life estate having been terminated by the death of the mother, the present action in partition was brought, and an issue raised as to the rights of the widow of the deceased brother.

      Held-. That a fee simple vested in the three sons at the death of the testator, subject to the life estate of their mother. A one-third interest in said lands descended, therefore, to the deceased son as ancestral property, out of which his widow took a life estate, and is entitled to an accounting for rents and profits from the date of the death of the previous life tenant. If the interest of the said widow can be set off by metes and bounds without depreciating the value of the remainder of the land, she is entitled to partition; but no sale of said land can be made without the consent of all parties in interest.

      Martin & Martin and Tagne <& Tagne, for plaintiff.

      John W. Dugan, H. D. Cochran and T. B. Williams, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court October 8, 1918.

   Powell, J.

This is an action in partition, and is in tbis court on appeal from the judgment of the court of common pleas. The lands sought to be aparted are described in the petition, and the ease is submitted on an agreed statement of • facts. The plaintiff is the widow of Henry Hammond, who died intestate and without issue. The defendants are .the brothers of the said Henry Hammond. The common source of title is Robert Hammond, the father of said Henry Hammond, Vincient A. Hammond and Edward Hammond. The defendants and Henry Hammond were devisees under the will of Robert Hammond in equal shares. The will of Robert Hammond gave to his wife, Mary A. Hammond, an estate for life in all his property, real and personal, with power and authority to sell the whole, or any part thereof if necessary for her comfortable maintenance and support. This power of sale was never exercised by Mary A. .Hammond, and has no part in the .questions for solution in this action, and the same will not be again referred to in this opinion.

Under the will of Robert Hammond, deceased, Mary A. Hammond had only a life estate in the lands sought to be partitioned. Johnson v. Johnson, 51 Ohio St., 446.

The fee simple title vested at once on the death of Robert Hammodd in his three sons as devisees under his will, but subject to the life estate of' Mary A. Hammond therein. While the title was thus vested Henry died intestate and without issue. How did his share in said lands descend ? Margaret, his widow claims that it descends from him as ancestral property, under the provisions of Section 8573 of the General Code; and there being no children or legal representatives of children, the same passes to and is vested in her as the widow, relict of said decedent for and during her natural life, and that, by operation of the same statute, on the termination of her life estate the' real estate passes to and vests in the defendants, Vincent A. Hammond and Edward Hammond, brothers of said Henry Hammond and of the blood of Robert Hammond, the ancestor from whom the estate came.

We are of the opinion that this claim is right and that the same is based on the correct interpretation of the statutes of descent.

Defendants contend that because Henry died before his mother, the life tenant, he never was seized of an estate in. said lands or any part thereof. The infirmity in this contention, is that it is in conflict with the holdings of the courts of Ohio in similar cases, and which holdings have determined the law so far as the state of Ohio is concerned. Johnson v. Johnson, 51 Ohio St., 446, and many other authorities.

Henry Hammond tcok a vested estate under the will of his father. It was subject to defeasance, on certain conditions named These conditions never happened, and hi's estate became absolute, either in him or in his heir at law, on the death of his mother, without having sold the property for her support. A vested estate always deeends to the heir designated by the law. ■ It may be burdened with conditions, but nevertheless, until these conditions defeat the estate, the right to it, the title passes by the statute of descents.

The cases cited by defendants are not applicable to the case under discussion. They relate especially to certain common law incidents that attach to dower' estates and estates by the curtesy. These estates at common law, or on statutes declarative of the common law are based on the right to possession only, and where there was no possession nor right of possession in the deceased consort, there was no dower or curtesy. This has all been changed by statute. Curtesy has been abolished, and a statutory dower right substituted in its stead. And the dower right of widows has been broadened and extended so as to include as lands subject to dower “all the real property of which the deceased consort, at decease, held the fee simple in reversion or remainder, and in one-third of all the title or interest that the deceased consort had, at decease, in any real property held toy article, bond or other evidence of claim.” Section 8606, General Code.

Plaintiff is entitled, on the agreed statement of facts, to a life estate in one-third of the real estate described in the petition, and to an accounting from the defendants for rents and profits, from the date of the death of Mary A. Hammond, deceased, when said life estate accrued to her.

We think also that she is entitled to an order of partition, provided her interest in said lands can be set off to her by metes .and bounds, without injury to the value of the said lands, but that no sale of said premises can be had without the consent of all the parties owning an interest in the same.

• A decree may be entered as prayed for in accordance with the views expressed in this opinion, and a writ of partition may issue to set off to plaintiff her interest in said real estate by metes and bounds, if the same can be done, but if not, then that such other proceedings may toe had in the premises, as are authorized by law. It is also ordered that a special mandate issue to the court of common pleas to carry this judgment into effect.

Houck, J., and Shields, J., concur.


text:
    MARKETABLE CHARACTER OF TITLE OBTAINED BY PURCHASER AT A SALE IN FORECLOSURE.
    Court of Appeals for Hamilton County.
    Walter v. Scott.

    Decided, March 14, 1914.

      Foreclosure — Character of Title Acquired at Judicial Sale — Evidence of Satisfaction of .the Mortgage — Failure to Use the Word “Heirs” in the Habendum, Clause.

    1. When property is sold in a judicial proceeding the sale vests title in the purchaser free from all rights of all parties to the action.
    2. When a foreclosure suit is pending any rights obtained by a mortgagee under a mortgage made by defendant on the real estate involved in such foreclosure suit would, under the doctrine of lis pendens, be dependent upon the result of the foreclosure suit, and a sale afterwards had thereunder would vest the title entirely free from any lien because of such mortgage.
    3. The statutory provision for the cancellation of mortgages satisfied by foreclosure proceedings, by an entry on the record thereot by the clerk of the court, is merely directory, and such an entry is not an essential one to effect a complete satisfaction of the mortgage or to remove it as a cloud upon the title when a proper foreclosure sale has been had.
    4. Where a deed by a master commissioner to a trustee recites that the master commissioner was ordered by the court to convey the title in fee simple, and where it was the duty of the master commissioner to execute a conveyance of a fee simple estate, the heirs of the original owner are estopped from setting up any claim as against the purchaser, although the deed failed to use the word “heirs” in either the granting or habendum clause, to indicate a perpetuity, and instead used the word “successors,” and such deed will be held to convey a fee simple title.

      Eltzrolh & Maple, for plaintiff in error.

      Hicks <& Hicks, contra.

      Affirming Scott v. Walker, 15 N.P.(N.S.), 208.

   Jones (Oliver B.), J.

This was an action below to compel the specific performance of a contract for the purchase of real estate. Defendant refused to accept a deed and pay the purchase price, contending that the title of plaintiff to the property was ‘1 defective, unmarketable and not good.”

On careful consideration of the pleadings there appears to be no issue raised between the parties on the facts, and they seem to agree in all matters as to the state of the records relating to plaintiff’s title' and to differ only a? to the law and the legal effect of these records.

A demurrer to the reply was filed by defendant, and a motion for judgment on the pleadings was filed by plaintiff. This demurrer and motion were heard together 'by the court. The demurrer was overruled, and the motion for judgment was granted and judgment entered for plaintiff. The journal entry overruling the demurrer to the reply uses these words as preliminary to the judgment, “The defendant not desiring to plead further, ’ ’ as though some further . pleading might be expected from defendant. Any new matter alleged in the reply is deemed to be controverted without any further pleading from defendant. (Section 11329, General Code.) If any distinct issue of fact was raised by the pleadings it would require the introduction of testimony by plaintiff to maintain such issue upon her part ' to entitle her to judgment, and it would be error to enter judgment on the pleadings without the necessary evidence. But, as we have stated, the parties seem to have agreed upon the facts at the hearing below, and the trial court has so treated it, as shown in the opinion, which is reported in 15 N.P. (N.S.), 208. The deeds upon which plaintiff’s title rests, the sufficiency of which are disputed by defendant, while not embodied in the bill of exceptions are found with the papers, and, if they can be considered, show that there can be no dispute as to the facts.

If we are wrong in this assumption, and the defendant makes any dispute as to essential facts, then she would be entitled to a new trial. From the argument before us, however, we understand that counsel on both sides are agreed as to the facts, and therefore we proceed to consider the law.

The duty of the court is fairly set out in the three propositions of the syllabus in City of Tiffin v. Shawhan, 43 Ohio St., 178, as follows:

! ‘ 1. The duty of a court of equity to decree specific performance of a contract to convey real estate, can not be determined by any fixed ruie, but depends upon the peculiar facts and equitable considerations of each case, and rests in the sound discretion of the court, guided and regulated, however, in the exercise of that discretion, as far as may be, by precedent and established practice.
”2. 'If a contract' for the purchase and conveyance, of land is in all respects fair and free'from ambiguity, and its enforcement as against the purchaser will vest in him a marketable title, the court has no legal discretion to refuse its enforcement.
i;3. If the specific performance of such a contract would be harsh, oppressive, or inequitable in its consequences, or would leave the purchaser with a doubtful and unmarketable title, the court, in the exercise of its discretion, wLl refuse to decree its performance, as no man- will be compelled to accept a doubtful title.” •

The question for the court to determine, therefore, is whether or not the title offered by plaintiff is a marketable title.

The objections made to plaintiff ’s title are that there are five mortgages on same, recorded in 1875 and 1876, made by P. A¥. .Hill who was then the owner, and that they have never been cancelled of record.

It appears from the r,eeital of two deeds, made by P. AY. Iiill, per master-commissioner, under which plaintiff claims, that a proceeding wag had in the common pleas court against said Hill, in which-the owners of four of these mortgages were parties, and under which said four mortgages were foreclosed, and - a sale of said premises was had and confirmed by said court and the master commissioner was ordered to convey the premises so sold to the respective purchasers in fee simple.

' The record of this foreclosure proceeding in the common pleas court wag destroyed by the courthouse fire of 1884, and the only evidence of same now of record is contained in the master commissioner’s deeds, which by virtue of Section 12349, General Code, are prima facie evidence of the legality and regularity of such sale and of the correctness of the proceedings in the action or proceeding.

If anything further is necessary to validate the title to said lands in th,e purchaser under said sale, it is found in Section 15091-1, General Code (102 O. L., 460), which is as follows:

“That in all cases where there shall exist any defect in the record of the title to any of the lands in any county, in the state of Ohio, which defect is due to the total or partial destruction of a deed, plat or court record of such county by fire, riot or civil commotion, and more than twenty-one years have elapsed since such total or partial destruction, the title to any such lands is hereby made valid in the owner thereof as against any defect in the record of th,e title thereto, resulting from such total or partial destruction of the deed, plat or court record of said county, by such fire, riot or civil commotion, provided, that nothing herein contained shall affect litigation now pending in any of the courts of this state, and any person or persons adversely claiming title thereto, shall begin proceedings within one year from the taking effect of this act, if not already barred 'by limitation or otherwise.”

It must be conceded that the sale of these premises in foreclosure carried with it all the interests of all the parties to the suit. It is an elementary proposition that when property is sold in a judicial proceeding the sale vests titi,e in the purchaser free from all rights of all parties to the action. Lessee of Fosdick v. Risk, 15 Ohio, 844, and Freeby v. Tupper et al, Id., 468.

The first four mortgages made by ITill must therefore be deemed satisfied.

When the fifth mortgage, to one Henderson, was made by Hill, this foreclosure suit had be,en pending more than nine months, and any rights obtained by Henderson under this mortgage would, under the doctrine of lis pendens, be dependent upon the result of the foreclosure suik The sale afterwards had thereunder would vest the title entirely free from any lien because of the mortgage to Henderson. Heirs of Ludlow v. Kidd’s Exrs., 3 Ohio, 541, and Bennet’s Lessee v. Williams, 5 Ohio, 461.

It is contended, however, by counsel for defendant, that Section 8552, General Code, provides for the cancellation of the mortgages satisfied by the foreclosure proceeding toy an entry on the r,eeord thereof by the clerk of the court. This section is merely directory. S*ueh an entry is in effect simply a reference to the court proceedings, and while it should be observed, because it is a great convenience to examiners of the records, it is not ah essential one to .effect a complete satisfaction of the mortgage or to remove it as a cloud upon the title when a proper foreclosure sale has been had. If it is desired as a matter of reference, no doubt an order could even now toe obtained from the common pleas court, under the foreclosure case, for the clerk to make such entry on the record of the mortgages included in the foreclosure. The further fact that all of said five mortgages has been past due for more than thirty years, without effort on the part of the mortgagees to assert any claim thereunder, would in itself indicate that they no longer constitute a cloud upon the title.

The most serious question, however, is raised by the defective character of one of the master commissioner’s deeds — the deed to William J. Littell, trustee for the Wildey Building Association, for part of said premises. This deed failed to use the word “heirs” in either the granting or habendum clause, to indicate a perpetuity, and instead us,ed the word “successors” as though the grant were made to the building association instead of to Littell, trustee.

There can be no dispute that the general rule in Ohio, as a common law, is that the word “heirs” or other appropriate words of perpetuity should be used to pass the fee simple estate; and that the omission of such word in a deed to a natural person' in the granting and habendum clauses vests only a life estate in the grantee. (Ford v. Johnson, 41 Ohio St., 366.) There are, however, well established .exceptions to this rule: Railway v. Bosworth, 46 Ohio St., 81, 85, where the grant was to a corporation aggregate and was sustained as carrying a fee without the use of the word “heirs’.’ or “successors;” and Brown v. National Bank, 44 Ohio St., 269, 276, where a mortgage made on an Indiana form without the use of the word “heirs,” conveying Ohio real estate, was construed to pass an estate in fee simple. An exception has .also been held where the conveyance is made to a trustee where the nature of the trust would require that the legal estate -conveyed he one in fee simple. Young v. Bradley, 101 U. S., 782, 785; Young v. Commissioners of Mahoning County, 53 Fed. Rep., 895, 899, and Williams v. Mears, 2 Disney, 604, 616.

In the deed under consideration it is. recited that the master commissioner was ordered by the court to convey this title in fee simple. The title held by Philip W. Hill, .the mortgagor, was a title in fee simple, and under S'ections 11693- and 11694, General Code, it was the duty of the master commissioner to execute such a conveyance of the estate as would convey the interest of P. W. Hill as it existed at the time of the sale, or was acquired thereafter, and vest such estate in the purchaser. If the master commissioner had failed to execute any deed, it could still no doubt under the order of the court have been executed by the sheriff. And if a defective deed were executed it could be corrected by the master, or a new and proper deed eoulcl be executed to take its-place.

Giving to the contention of the defendant below its full weight and conceding for the purpose of argument that this deed did only convey a life estate, then where would the remainder of said title have vested? Clearly, in the original mortgagor or his heirs. But he had conveyed it by these mortgages- in fee simple, and his fee simple title was ordered sold in the foreclosure proceeding, and his heirs are therefore estopped from setting up any claim as against th.e purchaser. • There could be no claim by Hill or his heirs as against this deed.

It will therefore be seen that the only possible claims that could be made against pontiff's title, because of the defects set up by defendant, would be claims under the four mortgages which had been foreclosed and the one mortgage which was made during the pendency of the foreclosure proceedings, and the claim which defendant urges might be made by an owner of the fee against whom the fee simple title had been ordered sold, who, defendant claims, might be entitled to an interest in the remainder because of the form of conveyance executed to the purchaser under the foreclosure sale. We have seen that outside of the statute of limitations, which itself would probably prevent any such claim, no such claims could possibly be successfully maintained'. And while a court should refuse to compel a purchaser to accept a doubtful title, which might expose him,to litigation, even though he might be successful in such litigation, we find that this is not such, a title, but that it is a valid and marketable title.

• In the state of the records in this county, because of the courthouse fire, it is probable that there are but very few .titles that are perfect on the records in all respects; and, while an examiner of titles might desire to have every possible obstacle removed, we can not hold that such defects as are urged against plaintiff’s title here -render it unmarketable, as there is no probability of any effort to assert a claim against it.

It is not necessary to further discuss the questions raised, because a full discussion is given in the able opinion of the court below, which seems to cover the entire ground.

Judgment is therefore affirmed.

Swing, J., and Jones (E. H.), J., concur.