author: By SKEEL, PJ.:

text:
    STATE, ex rel. WEBER et, Plaintiffs-Appellants, v. VAJNER, Building Commr., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22358.
    Decided March 3, 1952.

      Lody Huml, R. D. Metzner, Cleveland, for plaintiff-appellants.
    Green, Lausche & Wilmot, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment for the defendants entered by the Common Pleas Court of Cuyahoga County. The action is one in mandamus seeking to direct the defendant (Building Commissioner of Orange Village) to issue a building permit for the construction of a single dwelling house on a lot owned by the plaintiffs on Walnut Hills Road in said village.

The plaintiffs purchased said lot November 3, 1945. It fronts on Walnut Hills Road (extended). Walnut Hills Road runs south from Kinsman Road in said village and for about 2200 feet is a duly dedicated and accepted public highway. . The Walnut Hills Homesteads Inc. (the allotor) extended Walnut Hills Road further south to Harvard Road. Said extension was graded and surfaced but was not dedicated and accepted as a public street by Orange Village.

The plaintiffs on July 5, 1949, presented plans and specifications and made application for a building permit to build a single residence on the aforesaid lot, said permit being refused for the reason that the lot upon which the building was to be built did not front on a dedicated public street in the village.

When the plaintiffs purchased the lot it was not so restricted by the zoning ordinance of the village but on April 22, 1947, the village amended its zoning ordinance to provide that in all Class U-l districts covering single residential property, every dwelling erected in the village shall have a frontage on a public highway or upon a public street which has been duly dedicated and accepted for public use.

The record discloses that on March 18, 1947, Charles Miles who was then the owner of a lot fronting on Walnut Hills Road Extension applied for a permit to construct a single family residence thereon, and on April 22, 1947, the date the zoning ordinance was amended as herein set forth, the Building Commissioner issued a permit for the construction of said building on condition that the applicant sign a statement to the effect that the village is not obliged to furnish village services until such time as that portion of Walnut Hills Road Extension has been dedicated and accepted by the village. Whereupon said house was constructed in accordance with such permit.

In the summer of 1946, Kuth Fieldhouse who was the owner of a lot fronting on said Walnut Hills Road Extension made application for a permit to commence work preparatory to constructing a single family dwelling house, and on August 13, 1947, an application was made to permit construction of such single family dwelling, which application was refused by the Building Commissioner of the Village. Thereafter upon an action being filed and tried in common pleas court of Cuyahoga County, the court ordered the issuance of such permit and the permit was issued May 18, 1949 in accords,nee with the judgment. The single family dwelling house has since been constructed on said lot.

It is the claim of the plaintiffs that said amended ordinance is invalid and void for the reason that it has no substantial relation to the public health, safety, morals or general welfare of the people of the village, and is, in fact, discriminatory and destructive of plaintiffs’ property rights and the plaintiffs’ rights were prejudiced by the judgment of the Common Pleas Court sustaining the validity of said zoning ordinance and refusing the plaintiffs the right to a building permit.

The only question presented by this appeal, therefore, is whether or not the amended ordinance prohibiting the building of residences on lots which do not front on a dedicated street is a proper exercise of the police power in zoning restrictions.

It is for the village council and not the courts to determine the legislative policy of the village and unless it is made clearly to appear that the ordinance in question violates the constitutional rights of the plaintiff it must be sustained. (Constitutional Law, 8 O. Jur., Sec. 169, p. 274.)

The Village of Orange is located in the outlying, sparsely settled and in part rural portion of the county and in which some parts of the land is still devoted to farming. While this fact should, and does not limit the right of the village to impose reasonable restraints upon the use of property in its development for residence and business zones by a comprehensive zoning ordinance, yet the exercise of the police power must in general be kept within the needs of the people under the existing conditions. It is the contention of the village that in protecting the health and safety of its citizens, properly constructed highways which will provide ready access to all inhabitants are necessary, and that the requirements of dedication gives the village control of the necessary improvements that must be installed before a street will be accepted by the village and as such, used in the development of residential areas. Just what the minimum requirements are to be, or whether Walnut Hills Road (extended) meets the standards, is not disclosed by the evidence. Upon this subject the record is completely silent. We are unable to say, therefore, whether the village requirements are reasonable or prohibitive.

It is further suggested that the restriction prohibiting the building of a residence on undedicated streets will prevent the subdivision of vacant land for allotment purposes without the installation of improvements meeting the minimum requirements of the village. If this be so the pressure is being applied in the wrong place. We are in full accord with the economic advantages to be found in planned urban developments, but the place to begin such a program is with those engaged in creating new allotments. Under the ordinance here being considered, lot purchasers, and not the real estate promoters, are being penalized for what is held by the ordinance to be improper developments. If this be the sole justification for the ordinance it must be held unconstitutional as unreasonable and confiscatory.

The validity of the ordinance here being considered must be judged with regard to its relationship in the protection of the health, safety, morals and welfare of the citizens of the Village of Orange. The record fails to show a single municipal service which the village is prepared to extend to its citizens including the plaintiffs, that would’ be, in any way, affected by a failure to dedicate for public use the street upon which plaintiffs’ property fronts. If the condition of the highway upon which a residence is situated should limit or prevent the village from rendering an otherwise available municipal service, such limitation or denial of service should be the concern of the householder and not the village.

The evidence does not disclose a single fact or circumstance that in the slightest degree would justify preventing the plaintiffs from making reasonable use of their land: In fact the provisions of the ordinance are such that the plaintiffs will be unable to make any use of this property until the street is dedicated, a requirement which they are helpless to accomplish.

In McQuillan on Municipal Corporations, Vol. 7, p. 490, the author says:

“Prohibition of building as distinglished from their regulation cannot be ordained by the state or municipal corporation unless the prohibited building is per se dangerous to public health, safety and welfare * * *.”

In the case of Pforzheimer v. Seidman, 99 N. Y. Supp. (2d) 87, the Board of Appeals of the incorporated village of Wood-burgh, Nassau County, N. Y., had denied the petitioner the right to build an apartment house on property owned by the appellant, for two reasons, first, because [as was required by the zoning ordinance] a sewer connection could not be made to a street sewer and second, because a part of the plot of ground to be used extended twenty-five feet into Zone “B” restricted to use for residence purposes. The zoning ordinance provided in part:

“Section 16. No apartment house shall be constructed * * • “(c) Unless the sewage from such apartment house shall be conveyed to and a connection made with a street sewer or a combined street storm water drain and sewer.”

There was no street sewer of any kind in the street. The Court held that where a zoning ordinance prohibited construction of an apartment house, unless sewage connection could be had, it arbitrarily deprived the property owner in apartment house zone from lawful use of his land since there was no street sewer in the area and therefore such ordinance was illegal, unreasonable and unconstitutional.

This case was reversed by the appellate division (103 N. Y. Supp. 2d. 886). It is to be noted, however, the reversal in no way disturbed the principle of law on which the trial court founded its decision. The appellate division held that the proof before the board did not establish “that the use of the premises for one of the uses permitted in the D District would not yield a reasonable return * * .” in other words, the reversal was on the facts not the rule of law applied by the trial judge.

In 37 American Jurisprudence, Sec. 280, p. 908, footnote 1, the author says:

“If any doubt exist as to the extent of a power attempted to be exercised by a municipality out of the usual range or which may affect the common law right of a citizen it is to be resolved against the municipality.”

We must conclude that the zoning ordinance of the Village of Orange which prohibits the plaintiffs from making use of their property, when the proposed use in no way affects the public health, safety, morals or welfare of the citizens of the village, is unconstitutional and void.

The judgment of the Common Pleas Court is therefore reversed and the cause is remanded with instructions to enter judgment directing the Building Commissioner of the Village of Orange to issue a building permit as requested by plaintiffs’ application.

Judgment reversed.

HURD, J, THOMPSON, J, concur.


source: Caselaw Access Project

author: By SAVORD, J.

license: Public Domain

text:
    GLADIEUX et. v. PARNEY et.
    Ohio Appeals, Sixth District, Lucas County.
    Decided November 19, 1951.
    Winchester & Winchester, Toledo, for appellee Ada Gladieux.
    Ohlinger, Holes, Wolf & Flues, Toledo, for appellee William H. Hasselbach.
    George S. Bradley, Charles E. Idle, Jr., Toledo, for appellants.
   OPINION

By SAVORD, J.

This is an appeal on questions of law from an order and judgment of the probate court of Lucas County, Ohio.

On February 23, 1950, the appellees acting in their representative capacity, filed their petition for the construction of the will and codicil of Cyril Gladieux, deceased, seeking instructions of the court with respect to certain questions presented as a result of claimed ambiguities in the will and codicil. The answer of appellants was expressive of the construction which they considered should be accorded the will and codicil. Counsel for all parties succeeded in attaining agreement as to answer to eight of the submitted questions and the conclusion thus reached was approved by the probate court and so expressed in its judgment.

The remaining questions have their origin in the fact that at the time of the death of Cyril Gladieux there was on deposit with United Savings & Loan Association the sum of $3423.84, the account being designated “Cyril Gladieux or Ada Gladieux, survivorship account”; with First Federal Savings & Loan Association the sum of $7,080.07, the account being designated “Cyril and/or Ada Gladieux” and in a safe deposit box fifteen Series E bonds, with a maturity value of $100 each and all of such bonds made payable to Cyril Gladieux or Ada Gladieux.

The petition sought answer to the following questions:

(a) Does the codicil affect the legal title to said deposits and bonds which would otherwise vest in the survivor, Ada Gladieux, in the absence of such codicil?

(b) If the legal title to such bonds and deposits passes to the survivor Ada Gladieux, does said codicil affect the equitable title thereto and require the said Ada Gladieux to hold the same in trust under the terms and provisions of the trust provided in Items IV and V of said last will and testament?

(c) Should said bonds and deposits be included by the executor as a part of the inventory in the estate of Cyril Gladieux?

(d) Is Ada Gladieux the absolute owner of said property and the codicil without effect?

The cause was submitted to the probate court upon a stipulation substantially constituting an agreed statement of facts and such stipulation is the sole matter comprehended within the bill of exceptions in this case. The pleadings admit that, save for its formal parts, the codicil to the will of Cyril Gladieux reads as follows:

“My savings deposits and my United States bonds are in my name and that of my wife. That is money on deposit that belongs entirely to me, and the bonds also represent my own money. I am sure my wife would not want any of this nor would I want any of her funds and I direct the said deposits and the proceeds from the said Bonds be placed in the body or residue of my estate and be divided as specified in said Item V of my said will.”

The probate court concluded, and rendered judgment accordingly, that the codicil did not affect the legal title to the accounts and bonds; that Ada Gladieux did not hold same as trustee; that the accounts and bonds belonged to Ada Gladieux absolutely and that the accounts and bonds should not be included in the inventory of the estate of Cyril Gladieux.

No citation of authority is required in support of the conclusion of the probate court with respect to the effect of the codicil. It finds its foundation in sound principle and logic. At best, the codicil is but a self-serving declaration and can not be accepted as in any wise tending to establish the actual ownership or title to the accounts and bonds.

It is apparent from the record that Cyril and Ada Gladieux were married on November 12, 1928; that at the time Ada Gladieux was unemployed and, other than performing the ordinary household duties, she continued so during the entire period of the marriage; that at the time of her marriage Ada Gladieux owned property of a value between $5,000 and $9,000; that from the proceeds of the sale of certain real estate belonging to her mother, she received approximately $1,500, which remained in her possession at the time of the stipulation; that as of July 1950, Ada Gladieux was the owner of accounts in various institutions and of certain certificates of the approximate value of $17,000, and in addition thereto undivided one-half interests in certain real estate mortgages; that she had made numerous deposits in and withdrawals from said individual bank accounts and that from time to time Ada Gladieux made certain contributions towards defraying the cost of household furnishings and expenses.

The record further discloses that the funds deposited in the accounts and employed in the purchase of the bonds represented monies received by Cyril Gladieux by way of income from investments, rents or employment; that none of said money accrued from any gifts or bequests received by Ada Gladieux; that Ada Gladieux never made any deposits in the particular accounts; that while she had authority to do so, she made but one withdrawal and that, at the time of his death, Cyril Gladieux owned real and personal property of an approximate value of $45,000.

With a situation thus created and existing at the time of the death of Cyril Gladieux, we are confronted with the question, has Ada Gladieux proven by sufficient evidence her absolute right to the deposits and bonds in their entirety. We are convinced that she has with respect to the deposit with the United Savings & Loan Association, and to that extent the judgment of the probate court was correct and should be sustained.

Directing consideration to the deposit in First Federal Savings & Loan Association and the bonds, we recognize that though the evidence may be sufficient to establish joint ownership of this particular account and the bonds, it does not follow that it is sufficient to establish a survivorship right in Ada Gladieux.

The right of survivorship has its foundation in the contractual relationships of the parties. Foraker v. Kocks, 41 Oh Ap 210, et seq., 180 N. E. 743, 745, is expressive of the principles which correctly apply to the instant case. That case recognizes that joint tenancy with incidental right of survivorship does not exist in Ohio; “the parties may, nevertheless, contract for a joint ownership,” and that even though joint tenancy exists, survivorship is not presumed. It therefore follows that before a deposit or other property can be accepted as possessing the survivorship aspects, such survivorship right must be the product of definite contract. The intention to create the survivorship right must be made manifest either by the method employed in designating the account, appropriate notation or declarations, comprehensive enough in character to make clear the intention of the parties.

In The Cleveland Trust Co., v. Scobie, Adm’r., 114 Oh St 241, et seq., 151 N. E. 373, 48 A. L. R. 182, and all the later cases, wherein the law as stated in the Scobie ease has been followed, it is to be observed that the word “survivor” has been used or a contract or declaration has existed with respect to the deposit or other asset involved. Therein we find the difference between the instant case and such other authorities.

The most liberal application of the doctrine of judicial notice is not of sufficient force to require a court to take notice of the vast number of Federal and State regulations, infinite in variety and subject to frequent amendment. Therefore, in the absence of proof as to the regulations, indicating the conditions of issuance, transfer and payment of the bonds of this particular series, the foregoing conclusions apply with equal force to the fifteen series E bonds. Upon proof that such regulations provide for the creation of a contract of survivorship between the owners of such bonds and that the owners acquired the bonds with knowledge of and intent to create as between themselves a survivorship agreement pursuant to such regulations, the right of survivor to the proeeeds of the bonds would be sufficiently established. In the absence of such proof, the right of survivorship does not exist. This for the reason that a contract of survivorship is not, as a matter of law presumed. Foraker, v. Kocks, 41 Oh Ap 210 et seq., 180 N. E. 743.

The record fails to present sufficient evidence to warrant the conclusion that a contract of survivorship existed between Cyril Gladieux and Ada Gladieux with respect to the First Federal Savings & Loan Association account and the Series E bonds, and we are therefore compelled to conclude that the judgment of the probate court with respect to the First Federal Savings & Loan Association account and the Series E bonds is manifestly against the weight of the evidence and in these particulars must be reversed. The judgment of the probate court with respect to the United Savings & Loan Company account is affirmed.

FESS, PJ, CONN, J, concur.


author: By PHILLIPS, J.

text:
    ALEXANDER, Plaintiff-Appellee, v. GREENFIELD et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3345.
    Decided June 9, 1951.

      Modarelli & Modarelli, C. J. Hoyt, Youngstown, for plaintiff - appellee.
    Falls, Hazel •& Kerr, Youngstown, for defendants-appellants.
   OPINION

By PHILLIPS, J.

In this opinion the parties will be called plaintiff and defendants. Defendant Goldie Greenfield, now Goldie Greenfield Mayer, will be designated as Goldie Greenfield.

Defendants appealed to this court on questions of law and fact from a judgment of the court of common pleas entered upon the finding of a judge thereof against defendants in plaintiff’s action for specific performance of an agreement based upon an alleged option to purchase real estate.

The case was submitted to us upon a transcript of the testimony taken by a referee duly appointed by this court and the report of his findings of fact and conclusions of law.

Plaintiff contends by pleadings, evidence, arguments and brief that upon payment of the stated consideration of one dollar defendant Goldie Greenfield, then unmarried, gave him the exclusive right to purchase real estate described in the written option dated August 8, 1945, for $9,000.00 prior to June 15, 1946; that at that time if the option were exercised she would vacate such premises unless it was agreed mutually that she should remain therein longer; and that upon completion of a sale of such premises to plaintiff she would execute and deliver to him a warranty deed as evidence of such sale and purchase.

Likewise by pleadings, evidence, arguments and brief defendants contend that the optioned property was acquired in 1941 in the name of defendant Goldie Greenfield in trust for her mother, Rosa Greenfield, and father, Daniel Greenfield, of which plaintiff had personal knowledge, and legal title to which as such trustee Goldie Greenfield held from November 15, 1941, until October 21, 1945, after which date Rosa Greenfield, an incompetent, held both legal and equitable title thereto; that Rosa Greenfield, her heirs and estate were not bound by the option signed by Goldie Greenfield on August 8, 1945, and plaintiff acquired nothing thereunder except an offer of sale from Goldie Greenfield, who had no right to sell; that Rosa and Daniel Greenfield having died since the execution of such option it is unenforceable for that reason and for want of mutuality; that plaintiff is not entitled to specific performance because of failure of .proof of tender of the balance of the purchase price of such real estate, and that defendant, Goldie Greenfield, gave him no justification to claim that it was futile for him to make such tender; that defendants can not comply with an order of specific performance because of the death of Rosa and Daniel Greenfield; that the estate of Rosa Greenfield, included in the assets of which is the real estate in question, is in the process of administration in the Court of Probate of Mahoning County; and finally that to order specific performance as prayed for would violate the rules of equity.

We learn from the evidence that Goldie Greenfield and her sister, Josephine Glassman, were the only children of Daniel and Rosa Greenfield; that the latter, when close to age seventy years, in September, 1944, and June, 1945, suffered strokes of apoplexy as the result of which she could not speak and had little mentality; that thereafter by reason of her condition Goldie Greenfield was appointed her guardian in April, 1946, and upon her death Josephine Glassman was appointed administratrix of her estate in 1947, by the court of probate of Mahoning county, which estate is in the process of administration now; that title to the real estate in question, which upon the death of Rosa Greenfield descended to Goldie Greenfield and Josephine Glassman (subject to land sale proceedings and payment of debts), was taken by Goldie Greenfield on November 3, 1941, for $7850.00, and financed by loans of $500.00 from the Mahoning National Bank, $2800.00 from her mother’s sister, and $4500.00 from the Home Savings and Loan Company, secured by mortgages signed by defendant Goldie Greenfield, and was subsequently refinanced and a mortgage executed to a bank in Warren, Ohio; that on August 21, 1945, Goldie Greenfield deeded such real estate to Rosa Greenfield, and on February 19, 1946, Rosa deeded it to Goldie, and on June 4, 1946, Goldie deeded it to Rosa.

Defendants testified that they exchanged deeds as stated upon advice of their counsel, Peter B. Betras, who represented them in a proceeding before the Industrial Commission on a claim for injuries to Daniel Greenfield, but who does not represent them in this case; and that as the status of that proceeding changed so they changed the title to such real estate.

From the evidence submitted to us for review we conclude that the option dated August 8, 1945, was a valid agreement which plaintiff exercised; that plaintiff attempted to close the transaction and tendered the purchase price thereof to defendant, Goldie Greenfield, who refused to comply unless she and her mother could live in such property so long as her mother lived at a rental she stipulated. Plaintiff refused to comply with such proposition, which created a situation excusing plaintiff from further attempt or tender for payment of the purchase price thereof or to request a deed; and that the evidence is insufficient to impress a trust upon the property in question in favor of Rosa Greenfield.

Bottomed upon the evidence in this case, in our opinion the case of The George Wiedemann Brewing Company v. Maxwell, et al, 78 Oh St 54, disposes of defendants’ defense of want of mutuality. In that case the Supreme court said:—

“Written agreements known as options are not necessarily void for lack of mutuality, and where accepted within the time specified may become valid and enforceable contracts. Nor are they rendered invalid by the fact that the acceptance by the promisee is verbal and not in writing. Such assent may be shown by parol.
“The general rule is that a party seeking performance of a contract must show performance on his part, yet there are clearly defined exceptions and one of them is that when the other party repudiates and makes it certain that he does not intend under any circumstances to comply, a showing of readiness and ability on the part of the complaining party to then and there perform his part communicated to the other party and accompanied with a demand of compliance by such other party, is sufficient compliance without an actual formal tender.”

Plaintiff made no tender of the purchase price of such property to defendant, Goldie Greenfield, prior to June 15, 1946, because at the time he advised her he was exercising his option she imposed the additional obligation upon the exercise of the option, which made such tender futile or vain.

Having found that the evidence was insufficient to impress a trust upon the optioned property in favor of Rosa Greenfield, obviously no trust of which plaintiff could have knowledge existed, which disposes of defendants’ defense that plaintiff had personal knowledge of the existence thereof, and by reason thereof unenforceable.

In his report the referee concludes, and in that conclusion we concur:—

“That Rosa Greenfield, from June, 1945, prior to the option being signed, until her death in 1947 had no knowledge whatsoever of the execution of the option nor of any of the transfers by deed either to her by her daughter Goldie or from herself to her daughter Goldie; and that the same is true of Mrs. Glassman; that the deed from Goldie Greenfield to her mother Rosa, October 21, 1945, was a legal transfer even though Rosa was at the time mentally incompetent. The rule is stated in Corpus Juris, Volume 32, ‘Insane Persons,’ page 725, Section 490, which holds:
“ ‘An insane person may take property by inheritance or by deed, at least when the instrument does not impose a burden or obligation on the grantee.’
“The rule is also stated in Corpus Juris, Volume 18, ‘Deeds,’ page 416, Section 494, which states the rule as follows:
“ ‘The execution, acknowledgment, and delivery of a deed to the grantee raise the presumption of an acceptance of the instrument by him. Actual receipt, however, of a deed by the grantee is not essential to an acceptance by him, but a constructive delivery may be established by whatever affords a presumption of his acceptance thereof. So the acceptance by a grantee of a deed which has been executed for hi§
benefit may be presumed. This is particularly true of deeds to persons under disability.’
“The referee concludes that the deed from Rosa Greenfield to Goldie Greenfield in February, 1946, was not valid as Rosa Greenfield did not have the mental capacity to be a grantor; that the record title of the property in question at the time of Rosa’s. death, who died intestate, was in Rosa Greenfield; and that title to said property at time of the death of Rosa passed to Goldie Greenfield and Mrs. Glassman, her only children.
“Rosa Greenfield by reason of her mental incapacity had no knowledge of the option executed August 8, 1945, neither did she have any knowledge or comprehension of the deed to her in August, 1945, nor of her deed to Goldie in February 1946, nor of a deed from Goldie to Rosa in June, 1946. There is no evidence tending to show that at the time of the execution of the option in question Mrs. Glassman had any knowledge of the same nor that she knew of the transfers by deed just referred to.
“The referee is of the opinion that Mrs. Glassman cannot be required by a decree of specific performance to execute a deed to plaintiff-appellee of her half interest in the property; and the referee further concludes that he cannot compel Mrs. Glassman, as administratrix of the estate of her mother Rosa, to execute a deed on behalf of the estate of Rosa, even though a decree in specific performance could require Goldie Greenfield Mayer to transfer her one-half interest because it is by reason of her wrongful acts that plaintiff-appellee has been placéd in his present position.
“The petition in this case was filed January 10th, 1947, and the then party defendants were Goldie Greenfield and Goldie Greenfield as guardian of the estate of Rosa Greenfield. Alexander, the plaintiff in that petition, alleged specifically as to the three transfers which had been made of the property, to-wit: the deed from Goldie to her mother in 1945; the deed from Rosa Greenfield to Goldie in 1946; and the deed from Goldie to her mother in 1946; so that the plaintiff at the time of the filing of his petition had full and complete knowledge of the fact that title had passed from Goldie Greenfield.
“The referee believes the rule in Ohio to be as follows: that if plaintiff at the time of filing his action in specific performance knows that the vendor has placed title of the property in question in another, the court in the event he is unable to decree specific performance will not retain the case for asessment of damages but will relegate plaintiff to an action at law: Falkenstein v. Gaffney, 2 Abs 662; and Fisher-Barkdull Farm Agency v. Creager, 26 O. C. D. 299, 25 Cir. Ct. R. (n. s.) 95.
“The referee concludes by finding that there is an impossibility of specific performance by reason of the fact that when plaintiff filed his petition herein he had knowledge of the transfers in question.”
“The courts will not undertake to enforce the performance of an impossible task. For example, specific performance will not be decreed of an agreement to convey property which has no existence, or to which the defendant has no title.” 37 O. Jur., Page 62, Section 47.
“Since a court of equity will not do a useless thing or make a nugatory decree, specific performance will not, as a rule, be decreed against a vendor who is unable, for want of title, to comply with his contract; and this is true, even though the want of title is caused by the defendant’s own act — as by his conveyance to a bona fide purchaser.” 34 O. Jur., Page 63, Section 48.
“Another reason assigned, and pleaded as a defense by defendants, why specific performance cannot be decreed is that on February 25, 1938, defendant Paul Harsch, Jr., for defendant Lelia Close Harsch entered into a lease of the premises in question to one John S. O’Connell for a term of fifteen years without notice or knowledge on O’Connell’s part of any right, title or interest of plaintiff therein. That such lease was made is not disputed, and no evidence indicates that O’Connell, who is not a party to this suit, knew anything about the plaintiff’s contract.
“These facts being established, they preclude a decree for specific performance, even though the defendants may have deliberately put the title of the property in such shape that they cannot now carry out any contract with plaintiff. Any right it may have or claim for the breach of its contract will have to be pursued in an action at law for damages. 25 Ruling Case Law, 245, Section 48; Halsell v. Renfrow, 202 U. S., 287, 292, 50 L. Ed., 1032, 26 S. Ct., 610; Morris v. Curtin, 321 Ill., 462, 152 N. E. 210; Harris v. Nelson, 331 Ill., 225, 162 N. E.. 833; Coleman v. Dunton, 99 Me., 121, 58 A., 430; Davenport v Latimer, 53 S. C., 563, 31 S. E., 630; Davis v. Winter, 168 Md.. 613, 178 A., 604; Cattell v. Jefferson, 60 App. D. C., 261, 51 F. (2d) 317.” Herley, Inc., Appellant, v. Harsch et al, Appellees, 61 Oh Ap 260 at 263, 15 O. O. 176 at 178.

See also Capretta v. Capretta, 33 Oh Ap 232.

Notwithstanding the final recommendation of the referee was favorable to the defendants they filed the following exceptions to the report of the referee “for the purpose of raising with this court various questions of law which the referee decided against defendants-appellants”:—

“1. That the finding and conclusion of the referee to the effect that the option in question was properly exercised is contrary to law and the evidence.
“2. That the referee erred in holding that exercise of the option and acceptance of an offer to sell real estate may be shown by parol evidence.
“3. That the referee erred in failing to apply the rule of mutuality of obligation and in failing to apply the statute of frauds.
“4. That the finding of the referee to the effect that the evidence is insufficient to impress a trust upon the property in question in favor of Rosa Greenfield is contrary to law and the evidence.
“5. That the referee erred in failing to deny specific performance on the ground of want of mutuality of obligation.
“6. That the referee erred in finding plaintiff exercised said option when in fact no agreement as to rent and occupancy as therein provided was ever agreed upon.
“7. That the referee erred in failing to deny specific performance on the ground of well recognized rules of equity.”

Likewise plaintiff filed a motion for a new trial and the following exceptions to report of conclusions of law made by referee: —

“1. That the conclusions of law of said referee are erroneous.
“2. That the conclusions of law arrived at by the referee are not applicable to the findings of fact of the referee.
“3. That the referee erred in finding upon said facts that the plaintiff-appellee was not entitled to maintain this action for specific performance.
“4. That the referee erred in finding in favor of defendants-appellants and against plaintiff-appellee, and that the finding of said referee should have been for plaintiff-appellee.
“5. For other errors of law occurring at the hearing to which exception was duly taken.”

Obviously from what has been said in this opinion the exceptions of both parties are overruled as is plaintiff’s motion for a new trial, and the recommendations of the referee are adopted in all respects.

Plaintiff’s petition is dismissed at his costs. An entry drawn in accordance with the decree of this court and this opinion may be presented for approval.

GRIFFITH, J, concurs.

NICHOLS, PJ, concurs in judgment.


author: By BADER, J.

text:
    RICE v. NATIONAL LIFE & ACCIDENT INS. CO.
    Common Pleas Court, Hamilton County.
    No. A-125551.
    Decided January 2, 1952.
    Elmer E. Strasser, Cincinnati, for plaintiff.
    Ervin L. Bramlage, Cincinnati, for defendant.
   OPINION

By BADER, J.

This case was heard without the intervention of a jury.

The plaintiff, Mildred Rice, is the beneficiary in an insurance policy with the defendant company, The National Life & Accident Insurance Company, on the life of her sister Gerucia Kirkland.

The policy was issued on May 22, 1950, and the insured, Gerucia Kirkland, died on the 21st day of August, 1950.

Plaintiff in her petition, among other things, alleges that she as well as the insured performed all of the conditions incumbent upon them to perform under the terms and conditions of the insurance policy, and further alleges that the application for the insurance was not attached to the policy or in any way delivered to the insured.

The defendant company admits that Gerucia Kirkland filed an application with it on May 9, 1950, for life insurance, and relying on the statements and allegations in the application, issued the policy on May 22, 1950.

As its first defense the defendant alleges that the insured in her application “wilfully, falsely and fraudulently” stated “that she was in good health to the best of her knowledge and had never had, among other things, asthma, when in truth and in fact the said applicant knew that she had been treated for asthma for a period of approximately three years prior to the date of said application.”

For its second defense the defendant sets forth that the policy issued to the insured contained the following statement: “(7) Effective Date — This policy shall take effect on the Date of Issue, provided the Insured is then alive and in sound health, but not otherwise.”

Defendant then sets forth that the insured was not in “sound health” on May 22, 1950, and that she died on August 21, 1950, from bronchial asthma.

Sec. 9389 GC provides: “Every company doing business in this state shall return with, and as part of any policy issued by it, to any person taking such policy, a full and complete copy of each application or other document held by if which is intended in any manner to affect the force or validity of such policy. A company which neglects so to do, so long as it is in default for such copy, shall be estopped from denying the truth of any such application or other document. In case such company neglects for thirty days after demand made therefor, to furnish such copies, it shall be forever-barred from setting up as a defense to any suit on the policy, any incorrectness or want of truth of such application or other document.”

It is apparent from the evidence that the application which has been introduced in evidence over the objection of the plaintiff had at no time been attached to the policy or delivered in any manner to the insured, and for that reason the statements contained therein may not be used by the defendant, and the want of truth of such misrepresented application may not be set up as a defense on the ground of misrepresentation. This, however, does not prevent the insurer from defending on the ground that the insured was not in “sound health” at the date of the delivery of the policy, if the policy should contain a clause to that effect. See Syl. 3, Lamarand v. National Life & Accident Ins. Co., 58 Oh Ap 415, 16 N. E. 2d 701.

There was a clause in the insurance policy in question referred to above which provided that the policy shall take effect on the date of issue provided the insured is then alive and in sound health and not otherwise. There is no question that the insured was alive on the date of issue of the policy which resolves itself to one question before the Court, to-wit: Was the insured in “sound health” on the date of issue?

The term “sound health” has been defined as — “that state of health which is free from any disease or ailment that seriously affects the general healthfulness of the system, not a mere indisposition.” See Metropolitan Life Ins. Co. v. Howie, syl. 5, 62 Oh St 204, 56 N. E. 908, 909.

The Coroner’s report indicates that the cause of death was “bronchial asthma chronic emphysema.”

Dr. R. E. Christian testified that he had treated her five times and that bronchial asthma is only periodical and is not considered chronic, unless a disease lasts over a period of six months. He testified also that the insured did not have attacks of asthma when she was in Detroit, Michigan, and other testimony proved that she lived in Detroit for a period of from three to five years.

It is true that the defendant introduced some testimony that prior to and subsequent to the date of the issue of the policy, to-wit, in 1949 and on August 20, 1950, the day prior to her death, while defendant was in Cincinnati, the insured was treated for attacks of asthma. There is no testimony that on the date of issue the insured while she lived in Detroit was not in “sound health.”

In the case of McAtee, Appellant v. Western & Southern Life Ins. Co., Appellee, syl. 16, 82 Oh Ap 131, 81 N. E. 2d 225, 227, the Court held: “Even though the insurer introduces substantial evidence showing the insured was not in sound health prior to the date of the application, and evidence that insured was not in sound health after the effective date of the policy, the effect of the estoppel created by statements in the application is not abrogated, unless there be substantial evidence that insured was not in sound health after the date of the application and when such policy became effective, even though the policy provides that it shall be void if the insured was not in sound health on its effective date.”

From the evidence adduced it appears to the Court that the burden of showing that the insured was not in sound health at the date of issuance of the policy in question is on the insurance company and if it fails to so prove by a preponderance of the evidence then it must be presumed she was in sound health as heretofore defined.

The Court is of the opinion that the plaintiff and the insured did everything incumbent upon them to do under the terms and conditions set forth in the policy of insurance, and that the defendant has failed to show by a preponderance of the evidence that the insured was not in sound health on the date of issue of the policy and that the plaintiff as the beneficiary is entitled to recover the face value of the policy together with interest and costs of court.

Accordingly judgment is rendered in favor of the plaintiff' and against the defendant.


author: By McALLISTER, CJ.

text:
    O’DONNELL et v. GENEVA METAL WHEEL CO.
    United States Court of Appeals, Sixth Circuit.
    No. 10994.
    Decided November 17, 1950.

      Davis & Young, Meyer A. Cook, Cleveland, for appellants.
    Bulkley, Butler & Pillen, Kenneth D. Carter and J. A. Butler, Cleveland, for appellee.
    Before ALLEN, MARTIN and McALLISTER, Circuit Judges.
   OPINION

By McALLISTER, CJ.

The above cause came on to be heard on appellee’s petition for rehearing in which it is contended that the reference by the court in its opinion to Pennsylvania Railroad v. Goldie, 6 Cir., 182 F., 2d, stated the law as based upon decisions on the Supreme Court involving the Federal Employers’ Liability Act 45 U. S. C. A. Section 51 et. seq. and that that case, delineating the functions of the jury to pass upon issues of fact and the function of the court to determine whether there is a substantial evidence to submit such issues to the jury, is inapplicable to the present controversy. It is emphasized that this case involves a common law cause of action under Ohio law, and that a federal court, under the authority of Erie Railroad Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed, 1188, is accordingly bound to follow the law of negligence of the State of Ohio, as interpreted by the highest court of that state. We agree with this contention. The rule with respect to the function of judge and jury, as outlined in Pennsylvania Railroad v. Goldie, supra, is here inapplicable, and the citation of that case as authority in disposing of the issues presented by appellee was improvident.

In this case, the law of Ohio controls. In the latest adjudication of the Ohio Supreme Court on the subject that has come to our attention, it is held that it is not sufficient for a plaintiff to prove that the negligence of a defendant might have caused an accident; if the cause of the injury to a plaintiff may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant. Gedra v. Dallmar Co., 153 Oh St 358, 41 O. O. 274, 91 N. E. 2d 256. This rule, however, in no way alters the conclusions heretofore expressed in the opinion of this court on the appeal in this case.

From the transcript of the record, it is our view that there was sufficient evidence on the trial before the district court to submit to the jury the question whether the wheel that caused the accident was of appellee’s manufacture. The jury could reasonably consider that the evidence disclosed a probability, rather than merely a possibility, that the accident was due to the negligent manufacture of the wheel by appellee company. If it were proved by appellee that another party had manufactured wheels identical to the wheel in question, then appellants’ proof, if the same as on the trial below, would be insufficient to present the issue of appellee’s negligence to the jury. But this issue must be resolved, as has been heretofore stated in the opinion of this court, upon a new trial.

In accordance with the foregoing, the petition for rehearing is denied.


author: By HURD, J:

text:
    STATE, Plaintiff-Appellee, v. LUCEAR, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22516.
    Decided June 30, 1952.

      Frank T. Cullitan, County Pros., Theodore Williams, Asst. County Pros., Cleveland, for plaintiff-appellee.

      Minor, McCurdy & Haynes, Cleveland, for defendant-appellant.
   OPINION

By HURD, J:

On Sunday, October 14, 1951, the defendant, Marvin Lucear, purchased at a local drugstore two forms of rat poison, — one a white powder which was odorless, the other a paste which carried an order. He hid the poison behind the stove in the kitchen of his home at 9910 Pierpoint Avenue, Cleveland, Ohio, where he resided with his wife, Ocie Mae. On the following Tuesday, October 16, 1951, he placed a quantity of the odorless white powder in a bottle of his wife’s medicine, a white liquid, which he had previously purchased with other medicine on October 12, 1951, on the prescription of a doctor who had been treating his wife for illness. On the same day, Tuesday, October 16th, Lucear administered three doses of the poisoned medicine to his wife. When she became violently ill, he took her to Mt. Sinai Hospital where she died the morning of October 17th.

A post mortem examination was performed on the deceased on October 17th at Mt. Sinai Hospital, which disclosed that death was due to arsenic poisoning. The bottle containing the white liquid medicine was taken to the laboratory of the county morgue where, upon analysis, it was found to contain arsenic sufficient to kill a human being.

Some time after these events, Lucear was arrested and on October 30, 1951, signed a confession admitting that he had placee} the rat poison in his wife’s medicine and then administered the same to her. In his confession, among other things, he stated that he had been having trouble with his wife “for about the last six months.”

On November 13, 1951, the grand jury returned an indictment against the defendant charging murder in the first degree in the purported killing of his wife by means of poison. Upon arraignment on November 15, 1951, the defendant entered a plea of “not guilty” and “not guilty by reason of insanity.” A special venire for a jury was issued December 14, 1951, and on January 7, 1952, the case came on for trial. In the midst of impanelling a jury, the defendant withdrew his plea of “not guilty” and in writing waived his right to trial by jury and elected to be tried by three judges before whom he entered a plea of “guilty” as charged in the indictment, all as shown by the record. Upon trial had, the judges on the basis of defendant’s plea of guilty and the evidence, sentenced the defendant to death.

During the course of the trial the defendant on cross-examination testified as follows:

“Q. Now, you put some of this powder, is that right, into her medicine?
“A. Yes, I did.
“Q. And how much did you put into her medicine, do you know?
“A. It wasn’t as much as I could pick up in my little fingernail.
“Q. Did you talk with anybody before you put that poison into your wife’s medicine.
“A. No, I didn’t.
“Q. You knew what rat poison was didn’t you?
“A. No, I didn’t. I never had bought any before.
“Q. Why did you buy it?
“A. I bought it to kill her.
“Q. You bought it to kill her?
“A. That’s right.
“Q. You mean you bought it to kill Ocie? Is that right?
“A. Yes, I did.
“Q. After you bought it, you had it in the house from Monday morning, about one o’clock until Tuesday morning before you used it; is that right?
“A. Sunday until Tuesday.
“Q. Yes. Now how many doses of this white medicine did you, yourself, actually give your wife after you put the poison in the medicine?
“A. Just three, three doses.
“Q. Judge Silbert: I don’t hear you.
“The Witness: Just three, three teaspoons.
“Judge Silbert: You gave her three doses?
“The Witness: One every three hours.
“Q. That was after you put the poison in it?
“A. Yes, it is.”

Blythin, J., announced the decision of the court, and in part summed up as follows:

“There is no question in the world about thorough premeditation and ability and capability in premeditation in this case. Here was a purchase on a Sunday of poison, here was immediately a hiding of it and a keeping of it until Tuesday, and then we find that there is an elimination of the poison which had an odor attached to it and the use of the one that did not have the odor.
“Then there conies the administration of it. Here the man admits that he administered and states frankly op the witness stand that he secured it for the purpose of doing away with his wife. His wife was hospitalized and she lived for some time after being admitted to the hospital. He did not even then disclose, but kept to himself, the deep dark secret of what had happened. He gave no information to anyone.
“The basis or grounds for granting mercy in a case of this kind must be found in the evidence produced in the case. This case has certainly been capably, ably, forcefully and carefully presented. As Judge Silbert, the presiding judge, has indicated, we are unanimous in our belief that the evidence in this case does not disclose a case where mercy is to be recommended.”

After the imposition of sentence by the trial judges, a notice of appeal was filed, the pertinent part of which is as follows:

“Comes Marvin Lucear * * * and gives notice, that sentence imposed upon defendant Lucear is being appealed to the Court of Appeals * * *.”

Thus it appears that there is no appeal from the judgment of guilty as charged in the indictment, but the sentence of death only is appealed to this court, there being a single assignment of error presented as follows:

“The language and attitude of the presiding judge led counsel to believe that mercy would be extended and therefore resulted in the waiving of a jury to the great prejudice of the defendant.”

The question of whether or not a recommendation of mercy in cases of conviction of murder in the first degree creates an issue which is subject to review, has heretofore been considered and decided by the courts of this state.

The leading case is Howell v. State, 102 Oh St 411, 131 N. E. 102, 17 A. L. R. 1108 (May 3, 1921) where, in paragraph 1 of the syllabus the court declared:

“1. Sec. 12400 GC, giving the jury discretion to recommend mercy in cases of conviction of first degree murder, confers an absolute discretion which should not be influenced by the court. However, this discretion should be exercised in view of all the facts and circumstances disclosed by the evidence.”

In paragraph 3 of the syllabus, the court announced:

.“3. In such a case, it is not error for the court, in its charge, to say to the jury that it was their duty ‘to consider and determine whether or not, in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence’ they should or should not make such recommendation.”

In the case of State v. Caldwell, 135 Oh St 424, 21 N. E. 2d, 343, 14 O. O. 320, the court approved and followed the doctrine of Howell v.. State, supra. To the same effect is the earlier case of State v. Ellis, 98 Oh St 21, 120 N. E. 218 (March 1918) where the question arose on the voir dire examination.

To the same effect also are the cases of State v. Ames, 50 Abs 311, 80 N. E. 2d, 168, appeal dismissed 149 Oh St 192, 78 N. E. 2d, 48 (1948). Ex Parte Knight, 73 Oh Ap 547, 57 N. E. 2d, 273, 29 O. O. 183, 41 Abs 89 (1944); Shelton v. State, 12 Oh Ap 298 (1919); Ashbrook v. State, 49 Oh Ap 298, 197 N. E. 214; State v. Tudor, 154 Oh St 249, 95 N. E.. 2d, 385, 43 O. O. 130; State v. Reed, 85 Oh Ap 36, decision by this court (Dec. 1948) motion for leave to appeal overruled Mar. 2, 1949.

In the instant case the defendant elected to be tried by three judges under and by virtue of §13442-5 GC, which in part provides as follows:

“* * * Provided, however, that if the accused is charged with an offense punishable by death, he shall be tried by a court to be composed of three judges consisting of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding judge.”
“* * * Such judges, or a majority of them, shall have power to decide all questions of fact and law arising upon the trial, and render judgment accordingly; and provided further, that if the accused plead guilty of murder in the first degree, a court composed of three judges as herein provided shall examine the witnesses, determine the degree of crime and pronounce sentence accordingly. In rendering judgment of convinction of an offense punishable by death upon plea of guilty, or after trial by the court without the intervention of a jury, the court may extend mercy and reduce the punishment for such offense to life imprisonment in like manner as upon recommendation of mercy by a jury * * *.”

It is clear from an examination of this statute that the rule in respect to granting or withholding mercy, is the same as that in effect when trial by jury is had, because the judges “have power to decide all questions of fact and law” and may “extend mercy and reduce the punishment * * * in like manner as upon recommendation of mercy by a jury.”

It follows, therefore, that §12400 GC, giving to the jury discretion to be exercised in view of all the facts and circumstances disclosed by the evidence, to recommend mercy, has equal application to a three judge court sitting instead of a jury.

We think that based solely upon the evidence adduced at the trial and applicable law as established by the cases the appeal from the sentence is not well taken. However, because this is a capital case, we have given careful consideration to the claim of counsel that “the language and attitude of the presiding judge led counsel to believe that mercy would be extended and therefore resulted in the waiving of a jury.”

It should be noted that counsel does not claim that a commitment of any kind was made to him. Appropos this proposition, the following excerpt from the record, at a post trial hearing, beginning at page 223 is significant:

“Judge Silbert: * * * And I said, I wanted you to know that what you are doing you are doing entirely on your own; that is, I told you definitely, the very last thing I said to you because I was afraid you would get the wrong impression. What you were trying to do was to get the individual notion of each judge and, of course, we are not in a position to tell you in advance what we are going to do. And I wanted to make that clear and I told you that very definitely, I said ‘don’t bank on the judges. You are entirely on your own.’
“Judge Blythin: I will say this for Mr. Minor: He has told me on more than one occasion, and has never told me differently, that he had no commitment whatever from any judge involved in the case. I will say that.
“Mr. Minor: Thank you, Your Honor.
“Judge Blythin: That is what I said.
“Mr. Minor: I said that before I made this allusion, I thought I said that it is very definite that I received no commitment * * *."

Considering the entire record in this case, the members of this court have arrived at the unanimous conclusion that the defendant had a fair trial in which no prejudicial error appears and indeed none is claimed.. The record shows that the defendant presented no less than twelve witnesses who testified to his reputation as a peaceful and law-abiding citizen of good character, but a good reputation and previous good character will not avail to acquit under such facts and circumstances as are here presented. Undoubtedly this testimony was presented for the purpose of influencing the judges in favor of a recommendation of mercy. However, the judges decided to withhold a recommendation of mercy, a determination which rested solely within their sound discretion in the light of the facts and circumstances disclosed by the evidence. We are satisfied that not anything which occurred outside of the trial, including the rather unusual extra judicial conferences with the judges, would justify this court in a reversal of the judgment or sentence.

The judgment of the common pleas court is therefore affirmed. Exceptions noted.

SKEEL, PJ, THOMPSON, J, concur.


author: By DAVIES, J.:

text:
    REINER, Estate of, In re.
    Probate Court, Hamilton County.
    No. 183050.
    Decided March 26, 1952.

      Mark T. Brown, Edward G. Bruck, Hamilton, for Scelena Wolf, executrix of the estate of Jacob Reiner, dec’d.
    George C. Eyrich, Cincinnati, for Doris Wolf, exceptor.
   OPINION

By DAVIES, J.:

Doris Wolf, formerly Doris Reiner, a daughter of Jacob Reiner, deceased, has filed a motion to strike two United States Saving's Bonds, one of Series E and one of Series G, from the inventory filed in the administration of said decedent’s estate. The Series E bond is registered in the names of Jacob Reiner or Doris Wolf, and the Series G bond is registered under the names of Jacob Reiner or Doris Reiner, both bonds having been purchased by funds belonging to the father.

The court, under these circumstances, is asked to determine if Doris Wolf is now the sole owner of these bonds by right of survivorship, if the estate of Jacob Reiner, deceased, is their sole owner, or if Doris and the estate are joint owners of the bonds.

The executrix of the estate contends, since her decedent purchased the bonds with his own funds, that, under the law of Ohio, the estate is the sole owner of the bonds. The ex-ceptor claims that, under the Ohio law and federal law and regulations, she is the sole owner, and both parties, in the alternative, argue that there is a joint interest with the fiduciary and the exceptor each owning an undivided one-half interest in the bonds.

A review of the cases, especially of those decided in Ohio, involving the rights of multiple registered owners of property, discloses, first of all, that technical joint tenancy with the incidental right of survivorship does not exist in Ohio. In re: Estate of Hutchison, 120 Oh St, 542, 166 N. E. 687.

Joint tenancy is a common law estate in which survivor-ship is the distinctive characteristic, and in which the property descends to the survivor or survivors, and at length to the last survivor. Burroughs v. Gorman, 166 Va. 58, 184 S. E. 174; Swartzbough v. Sampson, 54 P. (2d) 73, 11 Cal. App. 451, 48 C. J. S. 910.

In many states statutes have been passed abolishing joint tenancy. No such statute has been enacted in Ohio, but an early statute (Chase’s Stat. 194) gave the right of partition among joint tenants. Statutes relating to wills, which permit the transfer after death of an interest in property, by necessary implication, abolish the estate of joint tenancy by destroying its distinguishing feature, viz., the right of survivor-ship, and have reduced such an estate to a mere tenancy in common. However, if the operative words of the deed or will or other instrument clearly express the intention to create the right of survivorship, such words will not be destroyed. 11 O. Jur. 163; In re: Estate of Hutchison, supra.

The executrix, in the instant case, claims that, since the bonds are registered in the names of the decedent or his daughter, no words are contained in the certificates which express an intention of the parties to create a right of survivorship. She argues that, since the decedent paid for the bonds, they belong to the estate, or, at best, there is a joint interest, with the estate owning one-half of the bonds and the daughter the other one-half.

It is true that, when property is conveyed to two people jointly, they generally take by moieties as tenants in common, unless their contract of purchase provides otherwise. Farmers’ and Merchants’ National Bank v. Wallace, 45 Oh St, 152; 7 Corpus Juris.

It is also true that as a particle “or” is often construed “and,” and “and” construed “or,” in a copulative and not in a disjunctive sense, to further the intent of the parties, in legacies, devises, deeds, bonds and other writings. Bouvier's Law Dictionary, Rawle’s Third Revision; Words and Phrases, Permanent Edition, Vol. 30, P. 35; In re: Wilkins’ Will, 226 N. Y. S. 415.

Whether or not a bank account is held in joint tenancy with the right of survivorship depends on the intention of the parties, determined in the light of all the circumstances. Williams’ Estate v. Tuch, 39 N. E. (2d) 695, 313 Ill. App. 230. No particular form of language is required to create a joint tenancy or the right of survivorship as to a joint bank account; any language clearly manifesting such intention is sufficient. Wallace v. Riley, 74 Pac. (2d) 807, 23 Cal. App. 654; Hurley v. Hibernia Savings & Loan Soc., 14 P. (2d) 574, 126 Cal. App. 314; In re: Estate of Hatch, 154 Oh St, 153; Faven v. Cleveland Trust Company, 23 O. O. 563.

If no laws or governmental regulations existed which affected or limited the ownership of the bonds at the time of their acquisition, we would conclude, in the case under consideration, that the estate and the exceptor owned them jointly. We must, however, examine the law to ascertain its effect, if any, upon the rights of the parties to this action.

Unless a contract provides otherwise, the law applicable thereto at the time of its making is as much a part of the contract as though it were expressed or referred to therein, for it is presumed that the parties had such law in contemplation when the contract was made. Illinois Bankers Life Association v. Collins, 173 N. E. 465, 341 Ill. 548; Citizens Ins. Co. v. Barnes, 124 So. 722, 98 Fla. 933; Dalzell v. Bourbon Co. Bd. of Ed., 235 S. W. 360, 193 Ky. 171; Felter v. Bank of Leipsic Co., 31 O. N. P. (NS) 241; In re: Liquidation of City Trust and Savings Bank of Youngstown, 17 Abs 165.

It has been held in Ohio, In re: Estate of Sibert, 60 Abs 113, that, in the absence of an express prohibition of the federal statutes, United States Postal Savings Certificates may be the subject of a gift inter vivos or causa mortis by delivery, notwithstanding the fact that they are non-negotiable and nontransferable, following the holding in Marshall v. Felker, decided by the Supreme' Court of Florida, and reported in 161 A. L. R. 167. The courts, in both cases, held that valid gifts of such certificates inter vivos or causa mortis could be made so long as the federal statutes, rules and regulations under which they are issued contain no express prohibition <againsl the transfer of such instruments by gift, even though the certificates were marked “non-negotiable” or “non-transferable,” definitely implying that holders of these certificates are bound by the federal statutes, rules and regulations under which they are issued.

It is commonly said that existing laws form part of a contract and are incorporated into it. Williston on Contracts, Section 615 et seq. Where the subject matter of a contract is exclusively one of national cognizance, and Congress has enacted a law for its complete regulation, the parties will be presumed to have contracted with reference to the Act of Congress and its effect on the subject matter, and not with reference to the state law. Federal Land Bank of Columbia v. Shinglar, 162 S. E. 185, 174 Ga. 352.

The Supreme Court of Ohio, In re: Estate of DiSanto, 142 Oh St, 223, 27 O. O. 179, 51 N. E. (2d), 639, considered a case involving the ownership of United States Registered Bonds in the name of a natural person payable on death to another person under regulations which provided that “if the beneficiary should predecease the registered owner the bond will be paid as though no beneficiary had been named in the registration.” The court held that “ownership of series D United States savings bonds, issued pursuant to the Second Liberty Bond Act, as amended and supplemented, and in such manner and subject to such terms and conditions as were prescribed therefor by the Secretary of the Treasurer, is to be determined according- to the tenor of such bonds, and where such bonds have been registered in the name of one natural person payable on death to a single designated natural person, upon the death of the first named natural person, they become the property of the named beneficiary and the proceeds of such bonds are not subject to administration in the estate of the first-named natural person. (Rhorbacker, Exr., v. Citizens Building Assn. Co., 138 Oh St, 273, approved and followed.)”

It has also been held in Ohio, In re: Estate of Glen C. Taylor, 27 O. O. 434, that “where United States Savings Bonds are payable to one person or to another person, such persons are co-owners, and upon the death of one, the bonds belong to the survivor or to his estate in case of his death.”

An earlier Ohio case, Foraker, Exr., v. Kocks, Admx., 41 Oh Ap 210, which is not controlling in our case, held that, although the United States Treasury recognized the survivor as a proper party to whom transfer of Liberty Bond should be made, it did not confer title in such bond or create a contract of survivorship therein.

Under the provisions of Section 757c. (a), U. S. Code Annotated, Title 31, 1951 Supplement, p. 212, the Secretary of the Treasury of the United States, with the approval of the President, is authorized to issue, from time to time, through the Postal Service, or otherwise, bonds of the United States to be known as “United States Savings Bonds.” It is further provided that the various issues and series of the Savings Bonds shall be in such forms, in such amounts, and shall be issued in such manner and subject to such terms and conditions consistent with law, and including any restriction on and transfer, as the Secretary of the Treasury may from time to time prescribe.

Among the regulations issued under this provision of law concerning United States Saving Bonds are the following provisions (found in the Treasury Department Regulations):

“Sec. 315.2 — United States Savings Bonds are issued only in registered form. The name and post office address of the owner, as well as the name of the co-owner or designated beneficiary, if any, and the date as of which the bond is issued will be inscribed thereon at the time of issue. The form of registration used must express the actual ownership of and interest in the bond and, except as otherwise specifically provided in the regulations, will be considered as conclusive of such ownership and interest.”
“Sec. 315.4 — Bonds of Series E may be registered only in the names of individuals (natural persons), whether adults or minors, in their own right in one of the following forms:”
“1. In the name of one person.”
“2. In the names of two (but not more than two) persons in the alternative as co-owners, for example:
John A. Jones or Mrs. Ella S. Jones. No other form of registration establishing co-ownership is authorized.”
“3. In the name of one (but not more than one) person, payable on death to one (but not more than one) other person, for example:
John A. Jones, payable on death to Miss Mary E. Jones.”
“4. Treasurer of the United States as beneficiary.”
“Sec. 315-5 — Bonds of Series F or G may be registered in the names of individuals (natural persons) in their own right as set forth in Section 315.4, subject to the same conditions as therein set forth,” (and subject to other conditions which do not apply in our case).
“Sec. 315.11 — Savings Bonds are not transferable and are payable only to the owners named thereon, except in case of the disability or death of the owner, authorized reissue, or as otherwise specifically provided in this subpart, but in any event only in accordance with the provisions of the regulations in this part.” (Emphasis ours.)
“Sec. 315-13 — A claim against an owner or co-owner of a savings bond and conflicting claims as to ownership of or interest in such bond as between co-owners or the registered owner and a designated beneficiary, will be recognized when established by valid judicial proceedings and payment or reissue will be made, upon presentation and surrender of the bond, except as follows:”
“(a) No such proceedings will be recognized if they would give effect to an attempted voluntary transfer inter vivos of the bond or would defeat or impair the rights of survivor-ship conferred by the regulations in this part upon a surviving co-owner or beneficiary.”
“Sec. 315.45 — A savings bond registered in the names of two persons as co-owners * * * will be paid * * * as follows:”
“(a) During the lives of both co-owners the bond will be paid to either co-owner upon his separate request without requiring the signature of the other co-owner; and upon payment to either co-owner the other person shall cease to have any interest in the bond. The bond will also be paid to both co-owners upon their joint request * * *.”
“(c) If either co-owner dies without having presented and surrendered the bond for payment or authorized reissue, the surviving co-owner will be recognized as the sole and absolute owner of the bond and payment or reissue, as though the bond were registered in his name alone, will be made only to such survivor.”
“(e) * * * The term ‘presented and surrendered’ as used in this sub-part means the actual receipt of a bond, for payment, by a Federal Reserve Bank or the Treasury Department, or an incorporated bank or trust company or any other agency duly qualified to make payment of the bond * *

Registered owners of United States Savings Bonds, accordingly, are bound by the provisions of the federal laws and regulations established thereunder for the ownership and transfer of such bonds when issued.

When, therefore, under existing federal laws and appropriate regulations established thereunder, Series E, F and G bonds are issued in the names of two persons in the alternative as co-owners, for example, as Jacob Reiner or Doris Wolf, and if either co-owner dies without having presented and surrendered the bonds for payment or authorized reissue, the surviving co-owner will be recognized as, and considered tc be, the sole and absolute owner of the bonds and payment or reissue, as though the bonds were registered in his name alone, will be made only to such survivor.

Ohio cases support the exceptor’s contention that consideration flowing from a non-contributor to the creator of a joint bank account or joint interest in other property is unnecessary to vest complete ownership of the whole account or property in the survivor when the contract establishing such joint interest or the laws applicable thereto provides for the right of survivorship. In Rhorbacker, Exr. v. Citizens Building Association, supra, the court held that in the creation of a joint and survivorship account in a bank, consideration passing between the depositor and the one surviving is not necessary, the contract being one of advantage without burden. The court concluded that the proceeds of a contract made for the benefit of a third party are not subject to administration in the estate of the donor, but belong to the person for whose benefit the contract was made. The court, in The Cleveland Trust Co. et al. v. Scobie, Adm., 114 Oh St, 241, likewise held that the owner of money creates a joint interest of another in a deposit when it appears to be his intention to divest himself of the exclusive ownership and control and vest ownership and control jointly in himself and another with the attendant right of survivorship.

For the reasons herein outlined, the Series E and G bonds registered in the names -of Jacob Reiner or Doris Wolf and Jacob Reiner or Doris Reiner belong to the survivor, Doris Reiner Wolf, and her motion to strike the bonds from the inventory will be sustained.


text:
    FARMERS SAVINGS & LOAN CO., Plaintiff-Appellee, v. KLINE, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3461.
    Decided November 8, 1951.
    Zieger & Coope, Youngstown, for plaintiff-appellee.
    W. L. Countryman, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Plaintiff bank held mortgages on a property owned by Lester Creed and his wife, Letitia Creed, and on another property owned by Gerald F. Carver and his wife, Jean E. Carver.

On May 5, 1949, the officers of plaintiff bank signed the following release of its mortgage held on the property of Gerald F. and Jean E. Carver: “The conditions of this mortgage have been complied with and the same is here satisfied and discharged.” Subsequently that release was filed with the recorder of mortgages of Mahoning county for record.

On May 7, 1949, that release was mistakenly recorded by such recorder on the margin of the mortgage plaintiff bank held on the property of Lester and Letitia Creed situated at Shilling Mills, where they conducted a restaurant.

On June 13, 1950, defendant Kline obtained a judgment against Lester and Letitia Creed in the court of common pleas. A search of the records of the clerk of that court and of the recorder of Mahoning county, made by him subsequent to June 13, 1950, revealed such mortgage had been released, and that the Creed property was free of judgment and mortgage liens.

Claiming he was induced and influenced to withhold issuance of an order of sale of Creed’s property to permit them to sell it and thus save them court costs defendant claims he refrained from issuing such order of sale timely,

Subsequently Lester and Letitia Creed had domestic difficulties, as the result of which their business declined, and Letitia Creed refused to join Lester Creed in a deed to either-of two bona fide purchasers of their property for an amount in excess of what it could have been sold for at the time of trial in the court of common pleas.

In September, 1950, by the action we review, filed in the court of common pleas, plaintiff bank claimed a lien on Creed’s property, and contended that the release and satisfaction quoted supra and delivered to the Recorder of Ma-honing County was intended as a release of its mortgage on the property of Gerald F. and Jean E. Carver, and prayed the court of common pleas to strike from the Recorder’s record of its mortgage on the Creed property the mistakenly recorded cancellation and satisfaction, and that its mortgage lien be declared a lien on their property prior to defendant’s judgment lien.

The trial judge held, and entered his judgment accordingly, that since the recorder mistakenly released the plaintiff’s mortgage on Creed’s property that the lien of plaintiff bank was entitled to be, and he restored its mortgage to priority over defendant’s lien, and held:—

“An order to correct the mistake of the Recorder by removing the Creed mortgage cancellation and entering such cancellation as of the Carver mortgage has, on motion, been made and is hereby renewed.”

Defendant Kline appealed from the finding and judgment of the trial court to this court on questions of law, and by brief inquires: “Does the restoration to record of a mortgage which has been recorded as dischargéd operate to endow it with priority over a lien obtained, by an innocent third party during the time the discharge of said mortgage was of record?”

By sole assignment of error defendant contends that: “The conclusion reached, and the judgment rendered by the trial court, is contrary to the law of Ohio in that it restored the lien of a mortgage which had been unqualifiedly released and cancelled of record, and in so doing awarded to said mortgage priority over the lien which had been acquired during the time said mortgage was released of record”; and consequently contends such judgment is prejudicially erroneous to defendant Kline.

It is conceded that such a mistake of the recorder can be corrected, but not “at the expense of and to the prejudice of innocent intervening third parties.”

Appellant argues that if, as provided by §8542 GC, mortgages are effective from the instant of delivery to the recorder for record, likewise release of a mortgage is effective from the instant of delivery thereof to such recorder.

In the case of Commercial Building & Loan Co. v. Foley, et al, 25 Oh Ap 402, in which the facts were similar to those in the case we review, the court said:—

“While the courts are not in accord on this question, the great weight of authority supports the right of plaintiff to enforce the lien of its mortgage. * * *
“It is said in Heyder v. Excelsior Building Loan Assn., supra:
“ ‘Between a mortgagee, whose mortgage has been discharged of record, solely through the unauthorized act of another party, and a purchaser who buys the title in the belief, induced by such cancellation, that the mortgage is satisfied and discharged, the equities are balanced, and the rights, in the order of time, must prevail. The lien of the mortgage must remain, despite the apparent discharge.’ ”

In the opinion written in the case of Commercial Building & Loan Co. v. Foley, supra, the court cited the case of Harris v. Cook, 28 N. J. Eq., 345, and said:—

“* * * that parties purchasing land may effectually protect themselves by requiring some proof that preceding mortgages have in fact been satisfied. But nothing, said the court, short of constant watch will protect a mortgagee against the making of a false entry of satisfaction.”

In syllabus 1 of the case of Commercial Building & Loan Co. v. Foley, supra, the court announced as the law of that ease that:—

“Where a first mortgage on real property is released on the record by the mistake of the recorder and thereafter the property is mortgaged to a second mortgagee and sold to purchasers, all of whom relied upon the record and did not know of the mistake, the first mortgage may be foreclosed against the second mortgagee and the purchasers, since none of the parties are at fault and all are equally protected by statutes, and in this situation the oldest claim must prevail.”

There seems to be no doubt but that where, as in the case we review, the recorder mistakenly cancelled plaintiff’s mortgage held on the property of Lester Creed and Letitia Creed instead of that held on the property of Gerald F. Carver and Jean E. Carver a court of equity may, as the trial court did, grant relief to plaintiff and set the erroneously made cancellation aside, notwithstanding that since the eancellation of the mistakenly cancelled mortgage judgment liens may have attached to the lands, especially when by granting such relief defendant was not damaged.

If the recorder had not made the mistake to which reference has been made defendant’s lien would have been junior to the mortgage lien of plaintiff bank, and by correcting such mistake defendant’s lien position remains the same.

The evidence does not support defendant’s contention that he “was induced by reason of the state of the record to pursue a course which if now taken from him will result in denying to him a lien,” and that the property in question will not support the liens of the respective parties.

Our conclusion, which is supported by 59 Corpus Juris Secundum 364-7, is that the judgment of the court of common pleas must be and hereby is affirmed.

NICHOLS, PJ, concurs in judgment.

GRIFFITH, J, concurs.